While remanding a bail matter to the Trial Court, the Delhi High Court has held that any victim who has filed a complaint under Section 376 of the Indian Penal Code (IPC) or Section 69 of the Bharatiya Nyaya Sanhita (BNS) against the accused, is to be given an opportunity of participating at all stages of the criminal proceedings, including the time when an application for grant of regular bail is filed by the accused before the Trial Court.

The High Court was considering an application filed under Section 483(3) read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 whereby the prosecutrix sought setting aside of the order granting regular bail to the second respondent/accused in a case registered under Section 376 of the IPC read with Section 69 of the BNS.

The Single Bench of Justice Saurabh Banerjee held, “Therefore, any victim like the prosecutrix herein who set the state machinery in motion by filing a complaint under Section 376 IPC/ Section 69 BNS against the accused herein, is to be given an opportunity of participating at all stage(s) of the criminal proceedings, including, whence the application for grant of regular bail was filed by the accused before the learned Trial Court.”

Advocate Bharat Sharma represented the Petitioner while Additional Public Prosecutor Satish Kumar represented the Respondent.

Factual Background

The FIR was registered at the instance of the prosecutrix while she was in Mandoli Jail in connection with an FIR for allegedly attacking the fiancée of the accused with acid as the said accused who was her neighbour had established physical relations with her on the false pretext of marrying her several times. As per the prosecutrix, the fiancée of the accused and her family had threatened and assaulted her, and she had been falsely implicated in the FIR for throwing acid at the said fiancée in a physical scuffle. The statement of the prosecutrix was recorded, following which the accused was apprehended and arrested. He was then granted regular bail by the Trial Court by way of the impugned order.

Reasoning

The Bench explained that Section 439(1A)6 of the Code of Criminal Procedure, 1973 is the governing provision qua presence of the informant or any person authorised by her at the time of hearing of such a bail application filed by the accused, although, in cases involving Sections 376(3),376AB,376DA or 376DB IPC, it makes the same ‘…obligatory…’. “The corollary thereof pertaining to Sections 65/70(2) BNS can be found in Section 483(2)8 BNSS which is para materia to Section 439(1A) CrPC. In fact, in pursuance thereof, this Court has also issued Practice Direction No.67/Rules/DHC dated 24.09.2019 applicable to both this Court as well as Sessions Court subordinate to it prescribing the form in which the Investigating Officer is required to communicate to the informant or any person authorized by her qua filing of a bail application by the accused under the relevant provisions of law”, it added.

Reference was made to the judgment of the Delhi High Court in Ms P v. State (NCT of Delhi) & Anr. (2024) where, following the decision of the Apex Court in Jagjeet Singh vs. Ashish Mishra (2022), the Court cancelled the regular bail granted to the accused under Section 376 IPC on the sole basis that the prosecutrix was not served a copy of the bail application filed by the said accused and was not afforded an opportunity of being present at the time of hearing thereof.

Thus, observing that the prosecutrix, who filed the complaint against the accused, had to be given an opportunity of participating at all stages of the criminal proceedings, the Bench stated, “Therefore, grant of regular bail to the accused within a span of three days, under such circumstances, calls for being set aside.”

The Bench thus remanded the bail application to the Trial Court to be decided afresh. “However, considering that the existing facts and circumstances involved, particularly, since the impugned order is only being set aside for the limited reason that the learned Trial Court failed to issue notice to the prosecutrix, till fresh adjudication thereof by the learned Trial Court, the accused shall not be re-arrested”, it clarified.

Cause Title: Ms G v. State Nct of Delhi and Anr. (Neutral Citation: 2026:DHC:8405)

Appearance

Petitioner: Advocates Bharat Sharma, Jyoti Sharma

Respondent: Additional Public Prosecutor Satish Kumar, Dhananjay Singh, Mandeep Baisara, Kavesh Bidhuri, Shobhit Anand

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Delhi High CourtJustice Saurabh Banerjee

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.