The Allahabad High Court has clarified that the statutory requirement for the presence of a complainant in bail hearings under the Bharatiya Nagarik Suraksha Sanhita, 2023, is fulfilled upon proper notice - absence thereafter does not render the hearing invalid. This ruling carries significant implications for bail applications in sensitive cases under the POCSO Act and SC/ST Act, where procedural compliance must not override substantive fairness.
Background & Facts
The Dispute
The applicant, Umesh Mali, aged approximately 20 years, was arrested and charged in connection with Case Crime No. 0035 of 2026, registered at Police Station Naseerabad, District Raebareli. The case involves allegations of rape and sexual assault against a 14-year-old girl under Sections 70(2), 351(3) BNS, Section 5/6 of the POCSO Act, and Section 3(2)(v) of the SC/ST Act. The complainant, the minor victim herself, lodged the FIR on 11.02.2026, alleging that on 10.02.2026 at approximately 7:00 p.m., while she was in a field, the applicant and another accused, Kuldeep Singh, forcibly took her to a location about 300 meters away, suppressed her mouth, and the applicant raped her.
Key Facts
- The victim was 14 years old at the time of the alleged incident on 10.02.2026
- FIR was lodged on 11.02.2026 by the victim herself
- The applicant was arrested on 12.02.2026 and has been in judicial custody since
- A charge-sheet was filed on 14.04.2026
- Medico-legal examination conducted on 11.02.2026 revealed:
- No signs of injury on any part of the victim’s body
- Hymen found intact
- Victim’s clothing collected, but no tears or stains detected
- Samples drawn for pathological examination, but report not available at time of bail hearing
- In her statement under Section 180 BNSS, the victim reiterated the FIR version
- In her statement under Section 183 BNSS, she stated she did not know who the other accused person was
- The applicant has no prior criminal record
- The applicant filed an affidavit asserting his innocence and false implication
Procedural History
- 10.02.2026: Alleged incident
- 11.02.2026: FIR registered
- 12.02.2026: Applicant arrested and remanded to judicial custody
- 14.04.2026: Charge-sheet filed by police
- 26.05.2026: Notice of bail application served on the complainant/victim as mandated
- 16.06.2026: Bail application heard before the High Court
The Parties' Positions
For the Applicant
- Argued that the applicant is a young man with no criminal antecedents
- Highlighted the absence of any medical evidence supporting force or penetration
- Emphasized the inconsistency in the victim’s testimony regarding the identity of the second accused
- Stressed that the investigation is complete and there is no risk of evidence tampering
- Relied on the principle that bail is the rule and jail is the exception
For the Respondent/State
- Opposed bail on grounds that serious offences under POCSO and SC/ST Acts are involved
- Noted that a charge-sheet has been filed, indicating prima facie case
- Raised a preliminary objection under Section 483(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, asserting that the absence of the complainant or an authorized representative renders the bail hearing invalid
- Pointed out that pathological reports from the medico-legal examination are pending
Relief Sought
The applicant sought regular bail in Case Crime No. 0035 of 2026, with conditions to ensure non-interference with the investigation and trial.
The Legal Issue
Can a bail application under Section 70(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 be refused solely on the ground that the complainant, despite being duly notified, chooses not to appear in court?
Arguments Presented
For the Appellant/Petitioner
The applicant’s counsel argued that Section 483(2) BNS mandates notice to the complainant, not mandatory physical presence. Once notice is given and the complainant is informed of the proceedings, their decision not to appear cannot be used to mechanically deny bail. He cited Rule 4(13) and (15) of the POCSO Rules, 2020, which impose a duty on the police to inform the child and guardian of bail status, and emphasized that the law does not require the complainant to be present for the court to proceed. He further contended that the absence of medical corroboration, the victim’s inconsistent identification of the second accused, and the applicant’s clean record collectively support the grant of bail.
For the Respondent/State
The learned Additional Government Advocate contended that Section 483(2) BNS makes the presence of the informant or an authorized person obligatory at the time of bail hearing. He argued that the statutory language is unambiguous and non-compliance renders the hearing procedurally defective. He also stressed the gravity of offences under POCSO and SC/ST Acts, and the need for strict adherence to procedural safeguards to protect victims.
The Court's Analysis
The Court undertook a careful examination of Section 483(2) BNS and the POCSO Rules, 2020, particularly Rules 4(13) and 4(15). It noted that while the statute requires notice to be given to the complainant, it does not state that their physical presence is mandatory for the court to proceed. The Court relied on its earlier decision in Rohit v. State of U.P. (2021 SCC OnLine All 1071), which held that the SJPU or local police must inform the child and guardian about bail applications, and the court must ensure such communication occurs.
"The statutory mandate is to provide an opportunity of hearing to the complainant and, thereafter, it is at the sweet will of the complainant to appear before the Court at the time of hearing of the bail application or not."
The Court observed that the complainant had been duly informed on 26.05.2026, yet chose not to appear. The Court held that this cannot be construed as a procedural bar to hearing the bail application, especially when the Public Prosecutor is present to represent the State’s interest. The Court emphasized that the purpose of the provision is to ensure the complainant’s voice is heard - not to create a procedural trap that denies liberty.
On the merits, the Court critically assessed the evidence. It noted the absence of any injury marks, intact hymen, unsoiled clothing, and the victim’s own admission that she did not know the identity of the second accused. The Court observed that the investigation, while concluded, lacked critical pathological evidence. Given the applicant’s youth, clean record, and the fact that the investigation is complete, the Court found no compelling reason to deny bail.
The Verdict
The bail application was allowed. The applicant, Umesh Mali, was directed to be released on bail upon furnishing a personal bond of Rs. 50,000 and two sureties each in the like amount, subject to the following conditions: (i) he shall not tamper with prosecution evidence; (ii) he shall not pressurize prosecution witnesses; and (iii) he shall appear before the trial court on every date fixed. The order was passed on 16.06.2026.
What This Means For Similar Cases
Notice Satisfies Statutory Obligation
- Practitioners may now argue that compliance with Section 483(2) BNS is complete upon service of notice to the complainant, regardless of their attendance
- Courts cannot refuse bail hearings merely because the complainant is absent after due notice
- The presence of the Public Prosecutor or A.G.A. is sufficient to represent the State’s interest
Medical Evidence Not Always Determinative in POCSO Bail
- Absence of injury or forensic corroboration does not automatically negate allegations under POCSO
- Courts must evaluate the totality of circumstances, including victim’s testimony, consistency, and investigative gaps
- Bail may be granted even in serious cases if the prima facie case is weak and the accused has no prior record
Procedural Rigour Must Not Override Substantive Justice
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The law must balance victim protection with the accused’s right to liberty
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Mechanical application of procedural rules risks violating Article 21
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Courts should interpret statutory mandates purposively, not literally, especially in bail matters
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Always confirm that notice under Section 483(2) BNS has been properly served before arguing for bail
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In POCSO cases, highlight inconsistencies in victim statements and gaps in medical evidence to support bail
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Use Rohit v. State of U.P. as binding precedent to counter objections based on complainant absence
