Introduction:
The case before the Calcutta High Court titled In Re : XXX, C.R.M.(M) 1148 of 2025, revolved around a crucial question concerning the participatory rights of victims in bail proceedings under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the newly enacted Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The matter came up before Justice Bivas Pattanayak after a petition was filed challenging the bail granted by the trial court to an accused facing prosecution under the stringent provisions of the POCSO Act. The petitioner, represented by Advocate Kaustav Bagchi, argued that the bail order dated 9th June 2025 was fundamentally flawed as it was passed without notifying or hearing the victim or her authorized representative, thereby violating the express mandate of Section 483(2) of BNSS. The trial court’s order granting bail to the accused, designated as opposite party no.2, was said to be perverse and contrary to statutory requirements. The High Court, upon careful consideration of the arguments advanced by both sides, suspended the order granting bail for a period of three weeks and directed the accused to surrender and apply afresh, ensuring the victim’s right to participate in the bail proceedings was respected.
Arguments Presented by the Petitioner:
The petitioner, through his counsel, strongly contended that the trial court had erred in granting bail without hearing the victim or her authorized representative. It was emphasized that in cases involving sexual offences, particularly those concerning minors under the POCSO Act, the right of the victim to participate in bail proceedings is not just a procedural formality but a substantive right that safeguards the dignity and interests of the victim. Counsel referred to Section 483(2) of BNSS, 2023, which explicitly recognizes the participatory right of the victim or informant in bail hearings pertaining to sexual offences. By ignoring this mandate, the trial court had denied the victim her rightful opportunity to present her concerns or objections regarding the release of the accused. The petitioner’s counsel further argued that in sexual offence cases, granting bail without the victim’s involvement could severely prejudice the administration of justice, as it may result in intimidation, harassment, or manipulation of the victim or witnesses. According to him, the trial court’s approach not only violated statutory provisions but also undermined the spirit of victim-centric jurisprudence embedded in both the POCSO Act and BNSS.
Arguments Presented by the Opposite Party No.2:
On the other hand, the counsel for the opposite party no.2, i.e., the accused, sought to differentiate between the concepts of “setting aside a bail order” and “cancellation of bail.” He argued that the petitioner’s application essentially sought the cancellation of bail, which under established principles of law requires proof of supervening circumstances. Such circumstances typically include misconduct on the part of the accused after the grant of bail, such as tampering with evidence, threatening witnesses, or committing another offence. He contended that no such allegations or incidents were demonstrated by the petitioner in the present case. Instead, the challenge pertained only to the correctness of the trial court’s order in not hearing the victim, which, according to him, could not justify the cancellation of bail. He urged that since the accused had complied with the bail conditions and there were no subsequent actions prejudicial to the case, his liberty should not be curtailed by suspending the bail. Moreover, he argued that the principles of natural justice extend not only to victims but also to accused persons, and arbitrary suspension of bail would impinge upon the fundamental right to liberty guaranteed under Article 21 of the Constitution of India.
Findings and Reasoning of the Court:
Justice Bivas Pattanayak, after hearing both sides, carefully considered the nature of the grievance raised by the petitioner. The Court noted that the primary issue was not the accused’s subsequent conduct after being granted bail but the procedure followed by the trial court while granting bail in the first instance. It was observed that the victim or her representative was not notified or given an opportunity to be heard during the bail proceedings, an omission that amounted to a denial of a statutory right expressly recognized under Section 483(2) of BNSS. The Court emphasized that the provision makes it mandatory for the victim to be present, either personally or through an authorized representative, when bail is considered in cases involving sexual offences against minors. This statutory requirement reflects the victim-centric approach adopted by the legislature to ensure that the victim’s voice is heard in crucial stages of criminal proceedings. The Court further observed that the arguments raised by the accused regarding the distinction between setting aside an order of bail and cancellation of bail did not hold good in the present context. The grievance was not about the accused’s subsequent actions but about the flawed procedure adopted by the trial court, which fundamentally vitiated the order granting bail. The trial court’s failure to secure the participatory rights of the victim rendered its order unsustainable in law.
Court’s Judgment:
In its judgment, the Calcutta High Court suspended the bail granted to the accused by the trial court for a period of three weeks. The Court directed the accused to surrender before the trial court and apply for bail afresh. While doing so, it specifically ordered that due notice be given to the victim or her authorized representative to ensure compliance with Section 483(2) of BNSS. This would provide the victim with a fair opportunity to oppose the bail, if so desired, thereby restoring her statutory right to participate in the proceedings. The Court clarified that the suspension of the bail order was necessitated not by any supervening conduct of the accused but solely because of the denial of the victim’s participatory right. It held that in sexual offence cases under the POCSO Act, the participation of the victim in bail proceedings is an indispensable component of fair process, and its violation cannot be condoned on the ground of technicalities. The judgment underscored that while the liberty of the accused is important, it must be balanced with the rights of the victim, especially in sensitive offences such as those involving children. By restoring procedural fairness, the Court ensured that the rule of law and victim-centric justice were upheld.
Broader Implications:
The ruling of the Calcutta High Court has significant implications for the criminal justice system in India, especially in relation to victim rights and bail jurisprudence under sexual offence laws. First, it reiterates the legislative intent of BNSS to place victims at the heart of criminal proceedings, particularly in cases of sexual violence. The judgment sends a clear message to trial courts that the victim’s right to participate in bail proceedings is not optional but mandatory, and any violation of this right will render the bail order vulnerable to judicial scrutiny. Second, the ruling clarifies the distinction between cancellation of bail and setting aside a procedurally flawed bail order. While cancellation requires proof of supervening misconduct, a bail order can be set aside or suspended if it is found to be passed in contravention of statutory requirements. This distinction is critical to prevent miscarriage of justice and to ensure that both the rights of the accused and victims are protected in a balanced manner. Third, the judgment strengthens the victim-centric approach in POCSO cases, which are sensitive and require careful handling. Victims of child sexual abuse often face trauma, social stigma, and fear of retaliation. Ensuring their participation in bail hearings not only empowers them but also enhances public confidence in the justice system.