Mandatory Participation of Victim in POCSO Bail Proceedings is Condition Precedent for Grant of Bail.

The petitioner, father and guardian of a 14-year-old male victim, challenged the bail order (Annexure-A3) granted to the 2nd respondent (accused) by the Sessions Judge, Kottayam

The accused was arrested on November 15, 2025, for allegedly committing penetrative sexual assault and criminal intimidation under Section 351 of the Bharatiya Nyaya Sanhita (BNS) and Sections 4(2), 3(d), 8, and 7 of the Protection of Children from Sexual Offences (POCSO) Act, 2012

The petitioner contended that the bail was granted without providing the mandatory notice or opportunity of hearing to the victim/guardian

The Public Prosecutor confirmed that no such notice was issued prior to the bail order

1. Whether the victim or their guardian has a statutory right to notice and a right to be heard during the adjudication of a bail application involving serious offences under the POCSO Act and the BNS?

2. Whether a bail order passed in violation of such procedural requirements is liable to be set aside?

The Court primarily applied Section 40 of the POCSO Act, which entitles the family or guardian of a child to legal counsel

Rule 4(13) & (15) of the POCSO Rules, 2020, which mandates that the police inform the guardian of developments, including bail applications and court proceedings

Section 483(2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which makes the presence of the informant or authorized person obligatory during bail hearings for specified sexual offences

The Court followed the precedents of Arjun Kishanrao Maige v. State of Maharashtra (2021), establishing the obligatory nature of victim participation in POCSO bail pleas

Jagjeet Singh v. Ashish Mishra (2022), which affirmed that the victim’s right to be heard is a substantive facet of human rights and independent of the State's representation

The Court reasoned that the POCSO Act is a special legislation intended to provide a "statutory shield" for children, and Section 40, read with the 2020 Rules, creates a robust mechanism to protect the victim’s interests at every judicial stage

By applying the BNSS (the successor to the CrPC), the Court noted that the legislature intended for the informant’s presence to be mandatory in cases of heinous sexual crimes

The Court rejected the accused's defense that the mother’s presence in court (in her professional capacity as an advocate clerk) satisfied the requirement, holding that the duty to hear the victim cannot be dispensed with

Following the Jagjeet Singh ratio, the Court found that "denial of victims’ right to participate" is a valid ground for the cancellation of bail

Since the Sessions Judge failed to ensure notice was served, the procedural mandatory requirement was breached

The High Court set aside the Sessions Judge’s bail order (Exhibit A5), cancelled the accused's bail bonds, and directed the accused to surrender within seven days

The Sessions Judge was directed to re-adjudicate the bail application afresh within one month, ensuring an adequate opportunity of hearing is provided to the victim/guardian