New Delhi, Jun 7 (IANS): The Delhi High Court recently set aside the bail granted to a rape accused, noting that a notice was not served to the victim/complainant while the application seeking the said relief was being heard.

"The non-issuance of notice to the complainants/informants/victims is not merely a procedural lapse, but is clearly contrary to the unequivocal legislative mandate, as also the declared and settled law," said a single judge bench of Justice Pratibha M. Singh.

The observation came in while the court was hearing a plea filed by a minor rape victim's mother, through advocate Tara Narula, challenging the interim bail granted to the accused on May 5 on the ground that the order was passed in routine manner and was not only bad in law but also suffered from procedural lapse on the part of the sessions court.

"Suffice to say, that the lockdown period has thrown up several challenges to the court system which courts are bracing for on an everyday basis. However, the non-issuance of notice to the complainant/victim/informant is such a fundamental pre-condition, that such a requirement of law cannot be bypassed, ignored or neglected.

"It is deemed appropriate to direct that any non-compliance of the mandatory condition of issuance of notice and service of notice to the complainant/victim/informant could entail consequential action, in accordance with law," the court said while setting aside the order of the trial court.

The high court also directed respective district judges to conduct sensitisation programmes, through video conferencing, within a week in order to inform all presiding officers about the importance of compliance of this mandatory condition.

According to the Criminal Law (Amendment) Act, 2018, Section 439 of the Cr.P.C. was amended to make it 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.

While hearing the matter, the judge said that the petition highlights a perennial and grave problem of hearing not being afforded to victims or complainants, in bail applications filed on behalf of those accused who are facing trial under the provisions of sections dealing with rape of women below 12 to 16 years of age including gang rapes as also under the provisions of Protection of Children from Sexual Offences (POCSO) Act.

During the course of the hearing, advocate Narula, appearing for the petitioner submitted that with effect from April 21, 2018, there was an amendment in the law by which it has been mandated that the presence of the informant or any person authorised shall be obligatory at the time of hearing of the application for bail to the person accused of sexual offences.

In pursuance to court's direction, the Registrar General of the high court collected data from the trial courts for the period between the lockdown period (April 22 to May 23).

The said data showed that out of 294 cases where bail was sought by the accused in sexual offences cases, notices were issued to the complainant in only 79 matters.

"On the whole, out of a total of 294 cases wherein bail was sought by the accused, notices were issued to the Complainant in only 79 cases i.e., in 215 cases constitution almost 70 per cent, no notice was issued," the court observed.

"A perusal of the report of the Registrar General, in fact, confirms the analysis which has been was placed on record by the Petitioner in respect of 122 cases, to the effect that complainants/Informants are not being heard prior to hearing in bail applications to accused under the provisions of the POCSO Act," it added.