Safiya Malik

The High Court of Kerala Single Bench of Justice C. Pratheep Kumar held that a bail order granted to an accused in a POCSO case is liable to be set aside where the victim or guardian was not given notice or an opportunity of hearing before the order was passed. The Court was considering a petition filed by the father of a 14-year-old victim, seeking cancellation of bail granted by the Sessions Court, Kottayam, to an accused charged with penetrative sexual assault and criminal intimidation.

The petition was filed by the father of a minor victim seeking to set aside a bail order granted by the Sessions Judge, Kottayam, to the accused in a case registered by the Kottayam East Police Station. The offences alleged against the accused were under Section 351 of the Bharatiya Nyaya Sanhita and Sections 4(2), 3(d), and 8 read with Section 7 of the Protection of Children from Sexual Offences Act, 2012. The allegation was that the accused trespassed into the residence of a 14-year-old boy and committed penetrative sexual assault upon him, while also threatening him not to disclose the incident. The accused was arrested on 15 November 2025 and was later released on bail by the Sessions Court.

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The victim’s guardian challenged the bail order contending that the Sessions Court granted bail without issuing notice to the victim or providing an opportunity to participate in the proceedings. The petitioner relied on Section 40 of the POCSO Act, Rule 4 of the Protection of Children from Sexual Offences Rules, 2020, and Section 483(2) of the Bharatiya Nagarik Suraksha Sanhita to argue that the victim had a statutory right to be informed and heard at the stage of bail.

The accused opposed the petition contending that the bail was granted nearly two months after his arrest and that the victim’s mother had been present in court at the time of hearing. The defence also claimed that the case arose out of a property dispute and a quarrel regarding unpaid wages for plumbing work allegedly performed by the accused for the petitioner.

The Court examined the statutory provisions governing the rights of victims under the Protection of Children from Sexual Offences Act and the procedural safeguards available under criminal law. The Court observed that “Section 40 of the POSCO Act… confers a right upon a child to take assistance of a legal practitioner… the family or the guardian of the child shall be entitled to the assistance of a legal counsel of their choice for any offence under this Act.”

Referring to the POCSO Rules, the Court recorded that “it shall be the responsibility of the SJPU, or the local police to keep the child and child's parent or guardian… informed about the developments, including the arrest of the accused, applications filed and other court proceedings.”

The Court further noted that the information to be provided includes details such as “the schedule of court proceedings that the child is either required to attend or is entitled to attend” and “the bail, release or detention status of an offender or suspected offender.”

The Court also referred to the judgment of the Supreme Court concerning victim participation in criminal proceedings. It recorded that “a ‘victim’ within the meaning of Cr.P.C. cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings.” The judgment further stated that “such a ‘victim’ has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision.”

The Court also recorded that “the right of a victim under the amended Cr.P.C. are substantive, enforceable, and are another facet of human rights.” It further stated that “the presence of ‘State’ in the proceedings… does not tantamount to according a hearing to a ‘victim’ of the crime.”

Applying these principles, the Court observed that “the victim is entitled to be heard, before granting bail to the accused, especially in serious and heinous offences.” It further recorded that “since the learned Sessions Judge has not given notice to the victim and the victim was not heard before passing Ext. A5 bail order, the same is liable to be set aside on that ground alone.”

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The Court directed that “Exhibit A5 bail order passed by the Sessions judge is set aside. The bail bonds of the respondent/accused are cancelled and he is directed to surrender before the learned Sessions judge, within a period of seven days from today.”

The learned Sessions Judge is directed to dispose of the bail application afresh, after giving adequate opportunity of hearing to the victim as well, within a period of one month from the date of receipt of a copy of this order.” The petition was accordingly allowed.

Advocates Representing the Parties

For the Petitioners: Shri C.S. Manilal, Sri S. Nidheesh

For the Respondents: Smt. Usha Baby, Smt. K.G. Raji; Public Prosecutor Smt. Anima M

Case Title: XXX v State of Kerala & Anr.
Neutral Citation: 2026:KER:17222
Case Number: CRL.MC No. 516 of 2026
Bench: Justice C. Pratheep Kumar