Rape accused’s bail set aside after complainant was not heard; fresh bail hearing ordered

The petitioner/prosecutrix challenged the order granting regular bail to the accused in a case arising from FIR No. 317/2026, registered under Section 376 IPC read with Section 69 BNS.

She alleged that the accused had repeatedly established physical relations with her on a false promise of marriage. The bail order was passed on 3 July 2026, shortly after registration of the FIR, without the prosecutrix being given notice or an opportunity to participate in the hearing. She sought setting aside of the order and cancellation of bail.

Whether the prosecutrix was entitled to notice and an opportunity to be heard at the hearing of the accused’s regular-bail application.

Whether the bail order should be set aside because the prosecutrix was not given that opportunity.

Section 439(1A) CrPC makes the presence of the informant or an authorised person obligatory at bail hearings in cases under Sections 376(3), 376AB, 376DA and 376DB IPC.

The corresponding provision is Section 483(2) BNSS for offences under Sections 65 and 70(2) BNS.

Separately, Jagjeet Singh v. Ashish Mishra, (2022) 9 SCC 321, recognises a victim’s substantive right to participate and be heard at every stage of criminal proceedings, including bail proceedings; the State’s presence does not substitute for hearing the victim.

The Court also relied on Ms. P v. State (NCT of Delhi) & Anr., 2024 SCC OnLine Del 2527, where bail was cancelled because the prosecutrix had not been served with the bail application or afforded an opportunity to be heard.

Although the Court set out the statutory provisions requiring the informant’s presence in specified categories of sexual-offence cases, it grounded the prosecutrix’s opportunity to participate more broadly in the victim-rights principles in Jagjeet Singh.

The prosecutrix had initiated the criminal process, yet was not given an opportunity to be present and heard before bail was granted. Applying Jagjeet Singh and the coordinate Bench’s decision in Ms. P, the Court held that the failure to afford that opportunity was sufficient to set aside the bail order, without examining the merits of the bail application.

The Trial Court was directed to decide the application on its own merits, uninfluenced by the High Court’s observations. The accused was not to be re-arrested pending that fresh determination.