Victims of Sexual Offences to be Heard during Bail; Section 439 CrPC: Mandatory or Directory ? – By Ishan Jain and Yash Prakash

The Hon’ble High Court of Delhi in Miss G (Minor) Thr. Her  v/s State Of NCT Of Delhi & Anr.¹ has in unequivocal terms laid down that in bail applications pertaining to those accused who are facing trial under the provisions of Sections 376(3), 376- AB, 376 – DA or 376 DB of the IPC dealing with rape of women below 12, 16 years of age including gang rapes as also under the provisions of the Protection of Children from Sexual Offences (“POCSO”) Act, 2012, the victim/informant/complainant have to be heard and that non-compliance of the same would make the order granting bail vitiated. 

The Criminal Law (Amendment) Act, 2018, Section 439 of the Cr. P.C. was amended with effect from 21st April, 2020 by which it was made mandatory for the informant or any other person authorised by the informant to be present at the time of hearing of an application for bail filed by the accused under these provisions. The said amendment reads as under:

“23. In Section 439 of the Code of Criminal Procedure- (a) In sub-section (1), after the first proviso, the following proviso shall be inserted, namely:- 

“Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-Section (3) of section 376 or section 376-AB or section 376-DA or section 376-DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.”

 (b) After sub-section(1), the following sub-section shall be inserted, namely:-

“(1-A) The presence of the informant or any person authorized by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376-AB or section 376-DA or section 376-DB of the Indian Penal Code (45 of 1860).” 

A bare perusal of the said amendments would show that the legislature clearly made a distinction between notice to public prosecutors and presence of the informant. Had the intention of the legislature been that notice of bail application has to be issued to the informant, then there was no occasion for not specifically providing for the same. Thus, no formal notice of the bail application is required to be issued to the informant/complainant by the Court. The Hon’ble High Court, in order to ensure compliance of the amendment made to section 439 Crpc, issued `Practice Directions’ on 24th September, 2019 and directed as under:

“In order to ensure better and effective compliance of the above provisions, Hon’ble the Chief Justice has been pleased to direct as under:-

(a) Before granting bail to a person who is accused of an offence triable under  Section (3) of section 376 or section 376-AB or section 376-DA or section 376-DB of the Indian Penal Code, the High Court or the Court of Session shall give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application; and 

(b) The Courts shall ensure that the Investigating Officer has, in writing as per Annexure A, communicated to the informant or any person authorized by her that her presence is obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376-AB or section 376-DA or section 376-DB of the Indian Penal Code. Annexure A shall be filed by the I.O. along with the Reply/Status Report to such bail application and the Courts shall make all endeavour to ensure presence of the informant or any person authorized by her.”

It is therefore very clear that even the practice and directions issued by the Hon’ble High Court, no notice of any bail application is required to be issued to the informant/complainant/victim. An obligation was casted on the IO of the case to issue notice to the victim/informant as per the format. The Courts were however mandated to ensure the presence of the informant or any person authorized by her during hearing of the bail applications. 

The consequences of non-issuance of notice to victim/informant has not been provided for specifically. Thus, the need for interpretation for the same arose. Accordingly the Hon’ble High Court held that the provisions of section 439 CrPC are mandatory and non-compliance of the same would vitiate the order. 

The application for bail before a High Court or Session Court is filed under section 439 CrPC. In simple legal parlance the same is called Regular bail. While hearing regular bail, the judge is broadly concerned with the chances of the accused influencing the witnesses or affecting the trial in any manner like fleeing from the course of justice, hampering investigation, threatening the witnesses etc. The concept of interim bail however, is a Court-evolved concept. The need for interim bail arises to meet the contingencies of life like medical need, death of someone in family, marriage etc. The idea of interim bail is that even the undertrial prisoners’s have certain inalienable duties towards their family which he should be allowed to perform i.e. a circumscribed Article 21 of the Constitution of India is still available. The interim bail can be filed even without filing a regular bail application. There are few provisions of statutes like section 37 The Narcotic Drugs and Psychotropic Substances Act, 1985 and section 43D of the UAPA Act which restricts the power of the Court to grant bail to an accused but even in cases under those statutes where regular bail is strictly prohibited or the criteria for grant of bail are onerous, the Court grants interim bail to the accused because of various reason like treatment of the wife, children etc , death in the family , marriage of daughter. Thus pendency of application under section 439 of the Crpc is not a condition precedent for filing interim bail.

In the case hand, the facts were that the Ld. ASJ in one case pertaining to POCSO Act, 2012 had granted interim bail for a period of one month to the accused due to the illness of his wife. 

The question then arises, whether the principles of section 439 CrPC as amended would be applicable to interim bails which are not filed under section 439 CrPC ? 

The answer to the aforesaid as per the authors is an emphatic no. The reason is that for grant of interim bail the merit of the case is hardly looked into thus there is no question of mandatory notice/presence of the victim/informant during the hearing of the same.  The intent of section 439 CrPC was thus to give an opportunity to the victim/informant to oppose the regular bail application and not interim bail application of the accused.

Legal Flaws in the Judgement:

Firstly, the Hon’ble High Court, has completely overlooked the concept of interim and regular bail and has rather laid down law for all the bail applications filed under Sections 376(3), 376- AB, 376 – DA or 376 DB of the IPC dealing with rape of women below 12, 16 years of age including gang rapes as also under the provisions of Protection of Children from Sexual Offences (“POCSO”) Act, 2012. The distinction between an interim bail and regular bail cannot be overlooked as the interim bails are not filed under section 439 CrPC and there was no occasion for the Hon’ble High Court to have extended the amended provisions of section 439 CrPC to interim bails. The provisions of criminal statutes are always interpreted strictly and there is no scope of reading into it anything which is not expressly stated. 

Secondly, the judgement wrongly holds that the effect of i.e. the provisions of section 439 CrPC are mandatory in nature and non-compliance of notice to victim/informant of bail application would vitiate the order.  

The said view is expressed in para 18 of the judgment of the Hon’ble High Court wherein it is held as under:- 

“18. This Court has heard counsel for the parties, and has perused the records. It is clear from the above narration, that the amendment to the Cr.PC., as also the Practice Directions issued by this Court, and the two orders passed by the ld. Division Bench brook no ambiguity whatsoever. The victim/complainant/informant has to be heard. This is the mandate of law.” 

It is submitted that there is no discussion in the entire judgement about the law w.r.t interpretation of a procedural provision being directory or mandatory. The purpose for which said provision was enacted and the object it sought to achieve has not been considered at all. The Hon’ble Court rather has got swayed away by the plain language of section 439 CrPC and Practice and directions issued by the Hon’ble High Court. The Apex Courts in catena of judgements has held that the use of the words “shall” is not a conclusive test to be applied for determining the nature of procedural provision. In Sharif-ud Din v Abdul Gani Lone ² Hon’ble Apex Court held as under:-

“The fact that the statute uses the word ‘shall’ while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened.”

The crux of the aforesaid is that a statutory requirement relating to a matter of practice or procedure in the court should be interpreted as mandatory if it confers upon a litigant a substantial right, the violation of which will injure him or prejudice his case. On the other hand, a statutory provision regulating a matter of practice or procedure will generally be read as directory when disregard of it or the failure to follow it exactly will not materially prejudice a litigant’s case or deprive him of a substantial right. 

It is therefore submitted that denial of opportunity to the victim/informant of the opportunity of hearing during bail application has no bearing on the merit of the case and that no substantial right of the victim/complainant is abridged or violated for non-adherence of the same. If the victim later on finds that the accused after getting a regular bail is trying to influence her or his family in any way, then the law allows the victim/informant to apply to the Court for cancellation of the bail. More so, once in para 23 (l) of the judgment the Hon’ble High Court holds that in rare cases interim bail can be granted without presence of the victim/informant where the purpose of the interim bail would be defeated, then there is no question of provisions of section 439 CrPC be made mandatory. 

Thirdly, the total bar of grant of even interim bail pending regular bail is in direct violation of the judgement of the Hon’ble Apex Court in Sukhwant Singh vs State of Punjab ³ where it was held that the power to grant interim bail is an inherent power of the Court and that the denial of the same pending regular bail is violative of Article 21 of the Constitution of India. The relevant observations are as under:-

“However, following the decision of this Court in the case of Kamlendra Pratap Singh Vs. State of U.P.& Ors. 2009 (4) SCALE, 77, we reiterate that a Court hearing a regular bail application has got inherent power to grant interim bail pending final disposal of the bail application. In our opinion, this is the proper view in view of Article 21 of the Constitution of India which protects the life and liberty of every person. When a person applies for regular bail then the court concerned ordinarily lists that application after a few days so that it can look into the case diary which has to be obtained from the police authorities and in the meantime the applicant has to go to jail. Even if the applicant is released on bail thereafter, his reputation may be tarnished irreparably in society. The reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the Constitution vide Deepak Bajaj Vs. State of Maharashtra & Anr. JT 2008 (11) SC. 

Hence, we are of the opinion that in the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application. Of course, it is in the discretion of the court concerned to grant interim bail or not but the power is certainly there”. 

Conclusion:

The insistence on presence of victim/complainant/informant during bail hearing is to ensure better assistance being rendered by the victim to the Court in terms of facts and circumstances surrounding the case. The denial or otherwise of the bail has no bearing on the merit of the case nor does it even remotely affect the rights of the victim/complainant. The crime punishable under the provisions of Sections 376(3), 376- AB, 376 – DA or 376 DB of the IPC dealing with rape of women below 12, 16 years of age including gang rape as also under the provisions of Protection of Children from Sexual Offences (“POCSO”) Act, 2012 are gruesome and are unpardonable. However, the stage of punishing the accused is after the trial concludes and the Court records the guilt of the accused. Any infraction in the trial court judgement leading to acquittal of the accused would of course cause great prejudice to the victim and would cause injustice to her. But to hold that before granting bail to an accused, the victims/informants have to be heard mandatorily would actually lead to bail of the accused being a disciple of the victim/complainant/informant.

****

The authors are Advocates and Partners at Suvigya Legal, a Delhi-based law firm.

_______

Disclaimer: The views or opinions expressed are solely of the author.