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

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

Source: Barandbench

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