Recently, Hon’ble Karnataka High Court ruled that in case of rape, if the victim is below the age of 16, she has to be heard before passing order on bail application filed by the person against whom accusations has been made.
Justice HP Sandesh told that according to section 439(1A) of the Code of Criminal Procedure (CrPC), the presence of the informant is mandatory during hearing of a bail application with regards to an offence of rape against a girl below 16 years. The Court also mentioned that as per the law, it is the age of survivor at the time of incident that is relevant & not the age on the date of lodging of complaint. Thus, the Court canceled 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.
The case of the prosecution was that the accused was a college lecturer where the victim was studying. He called her to his home to work on a project in 2018. She was persuaded by the accused and his wife to stay in a room in their home & he harassed her sexually. For this, the accused has been charged under Sections 376(2) (rape), 506 (criminal intimidation) & 384(extortion) of the Indian Penal Code, Sections 4 (penetrative sexual offence), 5(f), 6 (aggravated penetrative sexual assault), 8 (sexual assault) & 14 (using a child for pornographic purposes) of the POSCO Act.
The Court overturned the bail order of a trial court, citing that it was not in compliance with the mandatory provisions of Section 439(1A) of CrPC [the presence of the informant or any person authorized 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. Also, the Court observed 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 alleged that she was threatened and that explicit photographs of her were taken by the accused.