Complainant's Absence at Bail Hearing Not a Bar Under Section 483(2) BNSS, Holds Allahabad HC Lucknow Bench

Justice Subhash Vidyarthi rules that once a POCSO complainant is informed of a bail hearing, her non-appearance does not prevent the court from proceeding on merits.

The Lucknow Bench of the Allahabad High Court has held that a bail application in a POCSO matter cannot be kept in abeyance merely because the complainant chooses not to appear, provided she has already been informed of the hearing. Justice Subhash Vidyarthi, sitting singly, rejected a preliminary objection raised by the Additional Government Advocate and proceeded to examine the bail application on its merits. The court drew on Rule 4(13) and Rule 4(15) of the Protection of Children from Sexual Offences Rules, 2020, and a coordinate bench ruling in Rohit v. State of U.P. : 2021 SCC OnLine All 1071, to hold that the statutory obligation is to give the complainant an opportunity of hearing — not to compel her attendance. The applicant, Umesh Mali, was ultimately granted bail.

The Bail Application and the State's Preliminary Objection

Umesh Mali filed Criminal Misc. Bail Application No. 3976 of 2026 seeking release in Case Crime No. 0035 of 2026, registered at Police Station Naseerabad, District Raebareli. The case was registered under Sections 70(2) and 351(3) of the Bharatiya Nyaya Sanhita, 2023, Section 5/6 of the POCSO Act, and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

The learned A.G.A. raised a threshold objection: Section 483(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 makes the presence of the informant or an authorised person “obligatory at the time of hearing of the application for bail” in cases under Section 65 or Section 70(2) of the BNS. The complainant had been informed of the application on 26 May 2026 but had not appeared. The State argued that the bail application could not be heard in her absence.

What the POCSO Rules Require of the SJPU

Before addressing the objection, the court examined Rule 4(13) and Rule 4(15) of the POCSO Rules, 2020. Rule 4(13) places a duty on the Special Juvenile Police Unit or local police to keep the child, her parent or guardian, and any assigned support person informed about developments in the case — including arrests, applications filed, and court proceedings.

Rule 4(15) lists the specific information that must be conveyed. Item (vii) covers the schedule of court proceedings the child is required or entitled to attend. Item (viii) covers the bail, release, or detention status of an accused or suspected offender.

In Rohit v. State of U.P., a coordinate bench of the Allahabad High Court had read these rules together and held that the SJPU or local police must inform the child and her guardian about any bail application filed by the accused, and that the court must ensure this is done. Justice Vidyarthi noted that this obligation had been fulfilled in the present case: information of the application was delivered to the complainant on 26 May 2026.

Why Non-Appearance Does Not Stall the Hearing

The court drew a clear distinction between the right to be heard and the obligation to appear. The statutory mandate, the court held, is to provide an opportunity of hearing to the complainant. What the complainant does with that opportunity is her choice. If she chooses not to appear despite being informed, and instead reposes trust in the learned Public Prosecutor or the A.G.A. to oppose the application, the court cannot treat the bail application as non-maintainable.

The court observed that treating the complainant's absence as a permanent bar would effectively give the complainant a veto over the hearing of a bail application — an outcome not supported by the text of Section 483(2) BNSS or the POCSO Rules. The preliminary objection was accordingly turned down.

Facts of the Alleged Offence and the Medical Evidence

The FIR was lodged on 11 February 2026 by the 14-year-old victim herself. She alleged that on the evening of 10 February 2026, at around 7:00 p.m., while she had gone to a field, both Umesh Mali and a co-accused named Kuldeep Singh pressed her mouth, took her to a spot about 300 metres away, and that the applicant forcibly raped her while Kuldeep Singh held her mouth shut.

The victim reiterated the FIR version in her statement recorded under Section 180 BNSS. However, when narrating the incident to the doctor during the medico-legal examination, she did not mention the presence of the co-accused. In her statement recorded under Section 183 BNSS before the Magistrate, she again reiterated her earlier account but stated that she did not know who the other person involved in the incident was.

The medico-legal examination report recorded no mark of injury on any part of the victim's body. The hymen was found to be intact. The victim's clothes were collected; they were neither torn nor stained. The A.G.A. acknowledged that the pathological examination reports of samples drawn during the medico-legal examination were not available in the case diary, even though a charge-sheet had already been submitted on 14 April 2026.

The Court's Assessment on Merits

Justice Vidyarthi identified two strands of concern at the prima facie stage. First, there was an internal inconsistency in the victim's account: the FIR named Kuldeep Singh as the person who shut her mouth, but before the Magistrate she said she did not know who the other person was. Second, the allegation of forcible abduction over 300 metres and rape was not supported by the medical findings. No injury, no sign of force, an intact hymen, and untorn, unstained clothing all sat uneasily with the version of events in the FIR.

The court also took into account that the applicant was approximately 20 years old with no criminal history, had been in custody since 12 February 2026, and that the investigation had already concluded. These factors, read together with the medical evidence, were held sufficient to make out a case for bail.

Outcome

The bail application was allowed. The court directed that Umesh Mali be released on bail upon furnishing a personal bond and two sureties each in the like amount, to the satisfaction of the Magistrate or court concerned. Three conditions were imposed: he shall not tamper with prosecution evidence; he shall not pressurise prosecution witnesses; and he shall appear on each date fixed by the trial court. The order was marked as both speaking and reportable.