THE GOAN NETWORK
PANAJI
The High Court of Bombay at Goa has quashed the trial court’s suo motu notice to a rape survivor seeking her presence while considering the bail application of the accused.
During the hearing of a criminal writ petition by alleged accused Afzal Khan alias Albaz Khan on whether Sessions Court has inherent powers to issue a notice to the victim/complainant during the bail hearing, the Bench of Justice B P Deshpande was informed the trial court failed to provide any reason for summoning the survivor.
As per the brief facts of the matter, the accused charged under section 376 (rape) of the Indian Penal Code had applied for bail in the Sessions Court. The Court issued a suo motu notice to the survivor on August 13.
The applicant’s legal counsel, Rohan Desai, argued that the trial court rejected his client’s objection to such a procedure in its order on September 5.
“Since the offense is simplicitor under Section 376 of IPC, and when there is no intervention filed by victim/complainant, Court of its own is not empowered to issue notice to the victim,” he submitted.
However, the additional public prosecutor Somnath Karpe, appearing for the State submitted that though there is no mandate to implead or issue notice to the victim in such a case, there is no bar on the Court to call upon the victim if it deems her presence necessary.
After hearing both pleas, the Bench noted that the trial court had provided no reason for requiring the victim’s appearance.
“Admittedly the complainant was not made party to the bail application. No directions were issued to the petitioner to implead the victim as a party…there is no opinion or reasons recorded by the Sessions Court before issuing such notice to the victim. At this stage, the question as to whether the Court has power to issue notice to the victim in all such cases Suo Motu could be considered in an appropriate manner. However, even if such power exists, it has to be exercised by recording reasons,” the Court observed adding,
“… Sessions Court before issuing notice to the victim failed to record any reason as to why it is required to call upon the victim and to hear her before considering the bail application.”
The Bench further stated that a reason for issuing the notice should be established before doing so and not subsequently to justify it. “… by keeping the aspect of Suo Motu power of the Court to issue notice to the victim open, the present petition could be disposed of as there are no reasons disclosed by the concerned Trial Court before issuing notice. It is not mandatory that the victim needs to be impleaded,” the Court ordered while quashing the trial court’s order.
