Upholding survivor’s ‘right to be heard’, Kerala High Court sets aside bail granted in POCSO case, directs accused to surrender

‘Right to be heard’

• After analysing the UN Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power, 1985, and also the law relating to the survivor’s rights prevailing in different nations as well as various provisions of law and precedents, the apex court held that in India also, the survivor has the right to be heard while considering the bail application of an accused.
• In light of Section 40 of the POCSO Act, Rule 4 of the POCSO Rules, 2020, as well as sub-section (2) of Section 483 (special powers of court regarding bail) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the precedents referred above, it can be seen that the survivor is entitled to be heard before granting bail to the accused, especially in serious and heinous offences.
• In the instant case, the offences involved are under Section 351 (criminal intimidation) of the Bharatiya Nyaya Sanhita (BNS) and Section 4(2) (penetrative sexual assault) read with 3(d) and 8 (punishment) read with 7 of the POCSO Act, which are very serious and heinous in nature. Therefore, in this case, the survivor was entitled to be heard before granting bail to the accused.
• Since the sessions judge has not given notice to the survivor and the survivor was not heard before passing bail order, the same is liable to be set aside on that ground alone.

Court’s directions

• The bail order passed by the sessions judge is set aside, the Kerala High Court held.
• He is directed to surrender before the learned sessions judge within seven days.
• The sessions judge is directed to dispose of the bail application afresh, after giving adequate opportunity of hearing to the survivor as well, within one month.

Case under POCSO Act

• The allegation against the accused was that he trespassed into the residence of the victim, who was a minor boy aged 14, and committed penetrative sexual assault upon him.
• It was alleged that the accused intimidated him not to disclose the same to others.
• Following this, an FIR was registered against the accused under the aforementioned sections, and he was arrested.
• Subsequently, he was released on bail by a sessions court.
• The counsel for the petitioner submitted that the sessions judge was bound to hear the survivor before granting bail.
• The petition was strongly opposed by the accused.
• It was further contended that the accused is a plumber by profession and that the petitioner had used his service for seven days without wages being paid.
• According to him, with respect to the said issue, there was some altercation which led to the registration of the case against him.

SC ruling in Jagjeet Singh and others vs Ashish Mishra

• In this case, the Supreme Court had ruled that the presence of ‘state’ in the proceedings, therefore, does not tantamount to according a hearing to a ‘victim’ of the crime.
• The court observed that a ‘victim’ within the meaning of the Criminal Procedure Code (CrPC) cannot be asked to await the commencement of trial for asserting his or her right to participate in the proceedings.
• “He/She has a legally vested right to be heard at every step post the occurrence of an offence. Such a ‘victim’ has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision,” the apex court had said.
• The top court had remarked that if the right to file an appeal against acquittal is not accompanied with the right to be heard at the time of deciding a bail application, it may result in a grave miscarriage of justice.