Rape survivors below 16 must be heard before passing bail order: Karnataka High Court

The Karnataka High Court recently held that in cases of rape, if the victim is below the age of 16 years, she has to be heard before passing order on bail application filed by the accused [Lalitha v State of Karnataka]. .Justice HP Sandesh said that as per Section 439(1A) of the Code of Criminal Procedure (CrPC), the presence of the informant is mandatory during hearing of a bail application in relation to an offence of rape against a girl below 16 years."The law mandates that when the victim is below the age of 16 years, an opportunity has to be given before passing the order to the victim/complainant/informant," the Court said.The Court further said that as per law, it is the age of survivor at the time of incident that is relevant and not the age on the date of lodging of complaint.The Court, therefore, cancelled the bail of an accused on the ground that the trial court erred in not granting an opportunity to the victim to be heard before passing the bail order.'In the case on hand, the said mandatory provision of opportunity is not given to the victim and the order has been passed within two days,” the Court observed. The Court set aside the bail order of a trial court, holding that it was not in compliance with the mandatory provisions of Section 439(1A) of CrPC [the presence of the informant or any person authorised by them is obligatory at the time of hearing of the application for bail under certain sections of Section 376], and Section 376(3) [rape of a woman under 16 years of age] of the Indian Penal Code (IPC), the provisions of which were amended in 2018.Pertinently, the Court also observed that since that it was a heinous offence of rape on a minor girl, a delay in lodging the complaint cannot be a ground to disbelieve her, especially when she has made the allegation that she was threatened and that explicit photographs of her were taken by the accused .The accused had been charged under Sections 376(2) (rape), 506 (criminal intimidation) and 384 (extortion) of the IPC, Sections 4, (penetrative sexual assault), 5(f), 6, (aggravated penetrative sexual assault), 8 (sexual assault), and 14 (using a child for pornographic purposes) of the POCSO Act, and Section 67(b) (publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form)..The case of the prosecution was that the accused was a lecturer in the college the victim was studying in. In 2018, he called her to his home to work on a project. He and his wife persuaded her to stay in a room in their home and he sexually assaulted her. They removed her clothes, took explicit photographs of her, and threatened her to not tell anybody about the incident..Subsequently, he subjected her to further sexual assault. He demanded money from her on the threat of showing her photographs to other people, forcing her to steal Rs.10,000 from her family to give to him. A complaint against them was lodged in 2021, after which the respondent and his wife were both arrested. The respondent applied for bail, which was granted by the trial court within two days of his arrest..The Counsel for the petitioner argued that the trial court’s order granting bail was illegal and perverse as it overlooked the severity of the act, how the incident took place and did not consider the allegations which constitute a prima facie case against the accused. Moreover, the incident took place when the victim was below 16 years, which makes it mandatory for the Court to issue notice to the complainant or the victim. The trial court granted bail to the accused in a hurried manner, without giving an opportunity to the victim to come before the Court. .The respondent's counsel pointed out that the alleged sexual assault took place in 2018, while the victim disclosed the incident 2 and a half years later, without any explanation for the delay. Referring to the judgement of the apex court in Myakala Dharmarajam and Ors. v. State of Telangana and Anr, he argued that there is a difference between rejection and cancellation of bail; cancellation of bail is a harsh order as it interferes with the liberty of a person and must not be lightly resorted to..The Court noted that while the trial court had give a number of reasons for granting bail, the law mandates that when the victim is below the age of 16 years, an opportunity has to be given before passing the order to the victim/complainant/informant. The same has not been done in the instant case, the Court noted.In the case on hand, the said mandatory provision of opportunity is not given to the victim and the order has been passed within two days…”.While the Public Prosecutor and the counsel for the accused were given an opportunity to be heard, no such opportunity was given to the victim/complainant. The Court did not accept the argument that the provision did not have to be complied with as the victim was 17 years old on the date of lodging the complaint, observing that the Court has to take note of the age of the minor girl on the date of the offence, and not on the date of the complaint. .Hence, the Court ordered that the bail order be set aside and the accused be arrested and sent to custody. .Advocate Sachin BS appeared on behalf of the petitioner, and advocate Chandrashekhar RP appeared for the respondent. .[Read Order]