In a significant ruling, the Rajasthan High Court has clarified the involvement of victims in bail applications. The Court, comprising Justice Arun Bhansali and Justice Pankaj Bhandari, pronounced that a victim’s presence isn’t mandatory in bail proceedings, except in certain rape cases where the law specifically necessitates the informant’s attendance. This ruling stemmed from a criminal reference addressing the obligatory participation of the complainant or the first informant in bail applications under Sections 437, 438, and 439 of the Code of Criminal Procedure (CrPC).


The High Court’s decision contradicted a Standing Order issued on September 15, requiring the victim’s inclusion as a party-respondent in such proceedings. This order arose from observations made by a Single Judge in a prior case (Nitoo Singh @ Nitu Singh Versus State of Rajasthan) on August 8. However, another single-judge disagreed with this stance and referred the matter to a larger bench for resolution.


During the recent proceedings, lawyers representing the accused and the State contended that involving the victim was unnecessary. Upon examining the relevant provisions of the CrPC governing bail, the Court found no legal obligation to include victims in bail applications, barring specific situations mentioned under the law, particularly in certain rape offenses under Sections 376AB, 376DA, and 376DB of the Indian Penal Code.


The Court emphasized the violation of the accused’s right to liberty guaranteed under Article 21 of the Constitution if they were to remain in custody awaiting victim notices, as mandated by the Standing Order. Additionally, it highlighted the challenges in serving notices to all victims and determining their identities in criminal cases. This would burden the accused and potentially delay their bail applications, contrary to their rights.


Citing the Supreme Court’s stance on victim participation in criminal proceedings, the High Court clarified that while victims deserve to be heard at all stages, their involvement doesn’t replace the State’s role as the prosecuting agency. The bench further emphasized that if the legislature intended the victim’s inclusion in all cases, it would have explicitly stated so in the law.

Section 437, 438, and 439 of the Code of Criminal Procedure (CrPC) are pivotal legal provisions governing bail in India:


  1. Section 437 – Bail in non-bailable offenses:

– Enables courts to grant bail in non-bailable offenses based on specific conditions.

– Requires the court to ensure reasonable grounds suggesting the accused’s innocence before granting bail.

– Factors like the gravity of the offense and the possibility of the accused fleeing or tampering with evidence are considered.


  1. Section 438 – Anticipatory Bail:

– Allows individuals to seek bail in anticipation of arrest in non-bailable offenses.

– Aims to prevent unjust arrest of individuals fearing false implications.

– May include conditions such as cooperation with the investigation.


  1. Section 439 – Special Powers to Higher Courts:

– Grants High Courts and Sessions Courts special powers regarding bail.

– Allows these higher courts to grant bail in cases where the accused’s bail was denied or in custody.

– Applies to situations like warrantless arrests or appeals against conviction orders.


Highlighting the State’s responsibility to prosecute offenders, the Court underscored the importance of ensuring access to justice, especially for victims whose voices might otherwise go unheard. The Court disagreed with the need for the victim’s mandatory inclusion as a party-respondent in bail applications, clarifying that neither the law nor the previous judicial decision necessitated such participation. The ruling affirmed that while victims have the right to be heard, their inclusion in legal proceedings shouldn’t hinder an accused person’s access to timely jjustice This decision by the Rajasthan High Court has significant implications for the judicial process, balancing the rights of victims and the accused within the framework of the law.



Leave a Comment

× Need legal help?