Bail Hearing Can Proceed In Informant's Absence If Notice Was Served Despite Section 483(2) BNSS Mandate: Allahabad High Court

"In case the informant chooses not to appear in spite of having been given information about the application... it cannot be said that the bail application cannot be heard in absence of the informant," Allahabad High Court (Lucknow Bench), in a significant ruling, held that a bail application can be heard on its merits even in the absence of the informant or victim, provided they were duly served with notice.

A Single Judge bench of Justice Subhash Vidyarthi observed that while Section 483(2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, makes the presence of the informant obligatory during bail hearings for certain sexual offences, it does not mean the court is paralyzed if the informant voluntarily chooses to stay away.

The Court clarified that the statutory intent is to provide an "opportunity of hearing," and if the informant reposes trust in the Public Prosecutor rather than appearing personally, the bail proceedings cannot be stalled. The bench noted that "The statutory mandate is to provide an opportunity of hearing to the complainant and, thereafter, it is at the sweet will of the complainant to appear before the Court at the time of hearing of the bail application or not."

The applicant, Umesh Mali, sought bail in Case Crime No. 0035 of 2026 involving allegations under Sections 70(2) (Gang Rape) and 351(3) (Criminal Intimidation) of the BNS, along with provisions of the POCSO Act and the SC/ST Act. The case was registered at Police Station Naseerabad, District Raebareli, following an FIR lodged by a 14-year-old victim alleging she was forcibly taken to a field and raped by the applicant while an accomplice assisted.

The primary question before the Court was whether the mandatory presence of the informant under Section 483(2) of the BNSS, 2023, acts as an absolute bar to hearing a bail application if the informant fails to appear despite receiving notice. The Court was also called upon to determine if the applicant was entitled to bail based on the contradictions between the victim's statements and the medical evidence.

Interpretation Of Section 483(2) BNSS Regarding Informant's Presence

The State raised a preliminary objection that under Section 483(2) of the BNSS, the presence of the informant is "obligatory" at the time of hearing a bail application for offences under Section 65 or Section 70(2) of the BNS. The Court examined this in light of the Protection of Children from Sexual Offences (POCSO) Rules, 2020, which place the responsibility on the Special Juvenile Police Unit (SJPU) or local police to keep the child’s parents or guardians informed of court proceedings, including bail applications.

The Court emphasized that the procedural requirement is designed to ensure the victim's side is heard, but it cannot be used as a tool to indefinitely delay the accused's right to have their bail application considered.

Court Relies On Precedent Regarding Duty Of Police To Inform Victim

The bench referred to the coordinate bench decision in Rohit v. State of U.P. (2021), which interpreted similar rules under the previous regime. The Court noted that the rules make it incumbent upon the SJPU or local police to inform the child and their guardian about the schedule of court proceedings. It held that the Court’s duty is to ensure that this information has been delivered, which was confirmed in the present case as the police had delivered the information on May 26, 2026.

"The statutory mandate is to provide an opportunity of hearing to the complainant and, thereafter, it is at the sweet will of the complainant to appear before the Court at the time of hearing of the bail application or not."

Absence Of Informant Does Not Prevent Hearing On Merits

Justice Vidyarthi observed that if the informant chooses not to appear despite being informed, it must be presumed they are satisfied with the representation provided by the Public Prosecutor or the Additional Government Advocate (A.G.A.). The Court held that the "obligatory" nature of the presence mentioned in BNSS must be understood as a right to be heard rather than a mandatory physical attendance that could otherwise be used to obstruct the judicial process.

"In case the informant chooses not to appear in spite of having been given information about the application and he reposes trust in the learned Public Prosecutor or the learned A.G.A... it cannot be said that the bail application cannot be heard in absence of the informant."

Contradictions In Victim's Statements And Medico-Legal Findings

Moving to the merits of the bail plea, the Court scrutinized the victim's allegations. While the FIR and the statement under Section 180 BNSS alleged gang rape involving the applicant and one Kuldeep Singh, the victim later stated under Section 183 BNSS (Magistrate statement) that she did not know who the other person involved was. Furthermore, the Medico-Legal Examination (MLE) report did not support the prosecution's narrative of forcible rape.

The MLE report specifically mentioned that there were no marks of injury on any part of the victim's body, the hymen was found to be intact, and her clothes were neither torn nor stained. The Court noted that these findings prima facie contradicted the allegation that the accused forcibly took her 300 meters away and raped her.

"Although the victim has alleged that the accused persons forcibly took her away... and raped her, this allegation is not supported by the findings of the medico-legal examination report as no mark of injury or sign of use of force has been found on any part of the victim's body and the hymen has been found to be intact."

Applicant's Clean Record And Length Of Incarceration

The Court also took into account that the applicant is a 20-year-old man with no prior criminal history and had been in jail since February 12, 2026. Given that the investigation was already concluded and the charge-sheet had been submitted, the bench found that there was no further need for the applicant's custodial detention.

The Court turned down the preliminary objection raised by the State regarding the informant's absence and allowed the bail application. The bench ordered the release of Umesh Mali on bail subject to a personal bond and two sureties, with conditions prohibiting the tampering of evidence or pressurizing witnesses.

Date of Decision: June 16, 2026