Recently, the Criminal Law (Amendment) Act, 2018, introduced an amendment to Section 439 of CrPc. By virtue of the amendment, Section 439(1)(A) has been introduced into the CrPC.
The new subsection mandates that where the bail application of an accused who is standing trial for offences under Sections 376, 376AB, 376DA, is to be heard, the informant, or anybody authorized by the informant, must be present at the hearing of the bail application.
The subsection also mandates the Investigating Officer to notify the informant of the hearing date, especially in cases involving victims who are below 12 years. The subsection also mandates the Investigating Officer to file a status report on this.
In view of this new position, the Delhi High Court, per Justice D.N. Patel, issued an order to the effect that an informant, or any person authorized by the informant, must be present in court at the hearing of the bail application of an accused who is standing trial for rape.
The Court emphasized that the informant’s presence is “obligatory” at the time the application is to be heard, and that the Courts “shall” endeavor to ensure that the informant, or any person authorized by her, is present at the hearing.
Justice D.N. Patel further directed that in view of the proviso added to Section 439(1), the High Court and Court of Session must ensure that within 15 days, from the date the Court receives a bail application of an accused standing trial for offences under Sections 376, 376AB, 376DA, the Court must notify the Public Prosecutor of the bail application before granting bail to the accused.