Denial Of Victim's Right To Participate In Proceedings Of Accused Can Result In Rightful Cancellation of Bail: Karnataka HC

While leaving no stone unturned in batting most strongly to queer the pitch for protecting and safeguarding the legal rights of the victim from being violated with impunity by the offender, the Karnataka High Court in a most progressive, pragmatic and pertinent judgment titled Informant vs State of Karnataka in CRL.P. No. 3701/2023 that was pronounced finally on October 11, 2023 has reiterated most robustly, rightly and remarkably that denying the victim his/her right to participate in the proceedings of the accused can result in the rightful cancellation of his bail under Section 439(1A) of the Criminal Procedure Code. The Court referred to the established legal principles as postulated by the Supreme Court in case of Jagjeet Singh and Ors. vs Ashish Mishra alias Monu and Anr [(2022) 9 SCC 321] and the Delhi High Court in the case of Saleem vs State of NCT Delhi and Anr 2023 DHC 2622. According to these principles, the Court observed precisely that the victim's participation in legal proceedings is considered fundamental, and the denial of this participation can provide a valid basis for the proper revocation of bail granted to an accused. We thus see that the Court ultimately allowed a criminal petition that had been filed by the Informant seeking cancellation of bail granted by the Trial Court and set aside the impugned order. The Court also underscored that even though the requirement to inform the victim falls upon the Court or the Prosecution, non-compliance with such provision would ultimately affect the accused.

At the very outset, this decisive judgment authored by the Single Judge Bench comprising of Hon'ble Mr Justice S Vishwajith Shetty of Karnataka High Court sets the ball in motion by first and foremost putting forth in para 1 that, "This petition under Section 439(2) of Cr.PC is filed by the informant/victim with a prayer to cancel the bail granted to respondent no.2 on 30.12.2022 by the Court of Additional District & Sessions Judge, FTSC-II, Mandya, in Spl. Case No.223/2022 arising out of Crime No.120/2022 registered by Maddur Police Station, Mandya District, for the offences punishable under Sections 354D, 376(3), 376(2)(n), 450, 366, 506, 420 of IPC and Sections 4, 6 & 12 of the Protection of Children From Sexual Offences Act, 2012 (for short, 'POCSO Act')."

As we see, the Bench discloses in para 3 that, "On 18.05.2022, the victim girl aged about 21 years had submitted a written information, based on which FIR in Crime No.120/2022 was registered by Maddur Police Station, Mandya District, against respondent no.2 and three others for the offences punishable under Sections 376, 506, 420 of IPC and Sections 4, 6 & 12 of POCSO Act."

To put things in perspective, the Bench envisages in para 4 that, "In the written information, it is averred that in the year 2014, when the informant was studying in 9th Standard, she got acquainted with respondent no.2 who was working as a Warden in Social Welfare Department. He used to often visit the informant's house and he also allegedly informed her that he was in love with her. But since the informant was a minor, she had not agreed for his proposal. The informant has further averred that respondent no.2 had taken her to an isolated place near Arathipura Betta and Ramadevara Betta and had sexually misbehaved with her and also threatened her with dire consequences if she informs the same to her parents. In the year 2017, informant's parents had gone to her grandmother's house at Bengaluru and at that time, respondent no.2 came to the house of the informant at about 11.00 p.m. and took her to a room inside her house and sexually assaulted her against her wishes. At that time, she was allegedly aged 17 years. Respondent no.2 after committing the act of sexual assault on the informant, had promised to marry her and had informed her not to reveal about the incident to anybody. Thereafter, allegedly respondent no.2 repeated the said act a number of times in the house of the informant, whenever her parents were not there in the house."

Further, the Bench discloses in para 5 that, "In the year 2020, informant got pregnant and when this was informed by her to respondent no.2, he took her to Archana Hospital at Mandya and caused miscarriage. Thereafter, on 10.12.2020, the parents of informant and respondent no.2 had performed their marriage engagement ceremony. Subsequently, respondent no.2 allegedly informed the informant that his mother was not happy with the engagement. The informant allegedly informed the same to her family members. On 17.09.2021, respondent no.2 and his friends Puttaswamy and Lokesh allegedly came to the house of the informant and threatened the informant and her family members with dire consequences, if they approached the police and had left the place. Thereafter, the informant had approached the police on 18.05.2022 and submitted a written information, based on which, FIR in Crime No.120/2022 was registered by Maddur police against the petitioner and three others."

Do note, the Bench notes in para 6 that, "Application seeking anticipatory bail filed by respondent no.2 under Section 438 of Cr.PC in the said case was rejected, and thereafter he had voluntarily surrendered before the Trial Court on 27.10.2022 and had filed bail application under Section 439 Cr.PC which was allowed by the Trial Court by order dated 30.12.2022. Being aggrieved by the same, the informant is before this Court under Section 439(2) Cr.PC."

Most significantly and so also most commendably, the Bench then propounds in para 17 holding that, "Since it is now trite that the bail application of an accused for the offence punishable under Section 376(3), 376-AB, 376DA or 376-DB of IPC or for the offences punishable under the provisions of the POCSO Act cannot be heard and disposed of without giving opportunity of being heard to the informant/victim, the court and the prosecution are required to take into consideration the obligation on their part to keep the informant/victim informed about the stages of criminal proceedings including filing of applications seeking bail by the accused persons. Failure on the part of the court or the prosecution to take necessary steps in this regard will eventually cause hardship to the accused and thereby his right to liberty gets affected. Under the circumstances to ensure effective implementation of 2018 amendment to Cr.PC as well as the provisions of the POCSO Act and the Rules framed thereunder, the following directions are being issued for compliance by the court and the prosecution.

(i) Whenever an accused who is charged under Section 376(3), 376-AB, 376- DA or 376-DB IPC or the provisions of the POCSO Act, moves an application for regular bail or anticipatory bail, the Registry of the Court shall inform the accused or the advocate for the accused about the requirement of notifying the informant/victim regarding filing of the bail application, though it is not obligatory on the part of the accused/advocate for the accused to implead the informant or the victim, as the case may be.

(ii) In the event the accused/advocate for the accused impleads the informant/victim as party-respondent to the proceedings, steps shall be taken by the court for service of notice on the informant/victim, as the case may be.

(iii) In the event the accused/advocate for the accused does not implead the informant/victim as party-respondent to the proceedings, the court hearing the application shall take necessary steps for effective service of notice of the bail application on the informant/victim and also direct the prosecution to ensure service of notice of the bail application on the informant/victim and submit requisite acknowledgment to the said effect before the court.

(iv) It shall also be incumbent on the court and the prosecution to keep the informant/victim informed about the date of hearing of the bail application and also the right of the informant/victim to be represented and the legal assistance for which the informant/victim is entitled through the Legal Services Authority.

(v) If the prosecution is not in a position to trace the informant/victim, a status report shall be filed giving reasons for the same, which shall be taken into consideration by the concerned court and necessary orders be passed.

(vi) In the event the informant/victim does not appear before the court despite service of notice, the concerned court shall proceed to consider the bail application on its merits after having recorded that service of notice on the informant/victim is completed.

(vii) In cases where applications are filed seeking interim bail, the concerned court can pass suitable orders after recording reasons for the same awaiting service of notice on the informant/victim.

(viii) The Registry of the court shall ensure that in cases where the informant is a minor, notice shall be issued on the bail applications to the parents/guardians of the minor or to the person who is duly authorized to represent the minor victim.

(ix) Registry shall ensure that if the informant or victim is a minor, he/she shall not be made as a party to the proceedings and no notice shall be issued or served on the minor informant/victim."

All told, we thus see quite discernibly that the Karnataka High Court has made it indubitably clear that the denial of victim's right to participate in the proceedings of accused can result in the rightful cancellation of bail as not doing so would definitely tantamount to a miscarriage of justice. The Court directed that respondent no.2 who is a government servant shall surrender before the Trial Court on or before 26.10.2023. The petition that was filed under Section 439(2) of CrPC was allowed by the Court. We thus see that the order dated 30.12.2022 passed by the Court of Addl. District & Sessions Judge, FTSC-II, Mandya, in Spl. Case No.223/2022 is set aside and the matter is thus remitted for fresh consideration of the bail application on its merits as mentioned in para 19. The Karnataka High Court also directed in para 19 that, "The Trial Court is requested to consider and dispose of the regular bail application filed by the respondent no.2 on its merits within a period of 15 days from the date of appearance of the petitioner/representative of the petitioner and respondent no.2/representative of respondent no.2." The same must be done accordingly to serve the ends of justice. No doubt, the exhaustive guidelines that have been spelt out so brilliantly to protect the legal right of the victim to participate in the proceedings of the accused must be always safeguarded from being violated in any manner in the larger interest of justice!