The classical bail hearing had two voices: the accused seeking liberty and the prosecutor opposing. Parliament has deliberately added a third. Following amendments first introduced in the CrPC in 2018 and now carried into the Bharatiya Nagarik Suraksha Sanhita, 2023, courts hearing bail applications in specified sexual offences must give notice to the Public Prosecutor within a fixed window and secure the presence of the informant or a person authorised by her at the hearing. Beyond these mandatory pockets, the victim's participation in bail, cancellation and condition-modification hearings has become a settled feature of criminal practice. This explainer maps who must be heard, when, and what it means for both sides of a bail fight.
Where the obligation comes from
The Criminal Law (Amendment) Act, 2018 — enacted in the wake of public outrage over child rape cases — inserted sub-sections (1A) and (2) into Section 439 CrPC: notice of a bail application to the Public Prosecutor within fifteen days, and obligatory presence of the informant or her authorised representative, in cases of rape of a girl under sixteen or twelve and gang rape of a minor. The BNSS carries this scheme forward in its bail chapter, aligned to the corresponding BNS offences under Sections 65 and 70(2). The provisions bind the High Court and Court of Session exercising bail jurisdiction, and their spirit informs magistrate-level practice as well.
Who is the "informant", and who can she authorise?
The informant is the person who set the criminal law in motion — often the victim\'s parent or guardian in child sexual offence cases, sometimes the victim herself. The statute\'s allowance for "a person authorised by her" is practical: a family member, support person or counsel may attend where the informant cannot or should not be exposed to repeated hearings. Delhi\'s POCSO practice adds the support-person framework, so that participation does not become re-traumatisation. What the law requires is a real opportunity — service proved, presence recorded, objections heard — not a ritual appearance.
1. Application filed
Bail plea in a covered sexual offence lands before the Sessions Court or High Court.
2. Notice within 15 days
Court issues notice to the Public Prosecutor; the IO is typically directed to serve the informant and prove service.
3. Hearing with the informant present
The informant or her authorised representative attends; objections — written or oral — go on record.
4. Reasoned order
The court decides on the usual bail principles, having actually engaged with the victim-side material.
What victims can actually contribute
Victim participation is not a veto — bail remains governed by the triple test, the gravity of the offence and the stage of evidence. But the informant often holds facts the case diary does not: threats received after the incident, proximity of residences, attempts at pressure through relatives, or the accused\'s conduct during interim protection. Placed on affidavit, such material shapes conditions — no-contact directions, exclusion from the locality, reporting requirements — and grounds a future cancellation application if breached. Conversely, an informant\'s fair statement that no threat exists can support liberty; the provision cuts both ways.
For orders already granted, breach of a no-contact or no-influence condition stands among the strongest cancellation grounds, and the victim\'s contemporaneous complaints — police complaints, calls recorded, messages preserved — are the proof that moves courts. Victims should document breaches immediately rather than saving them for the next hearing.
The larger trajectory
The victim\'s procedural presence has grown steadily: a right of appeal against acquittal under the proviso now found in Section 413 BNSS, the right to be heard on withdrawal of prosecution, compensation frameworks, and identity-protection obligations. The mandatory bail-hearing provisions are part of this arc — a recognition that liberty decisions affect two people, and that decisions made after hearing both are more durable. For practitioners on either side, the working rule is simple: in covered offences, procedural compliance is part of the merits; everywhere else, anticipate the victim\'s voice and engage with it rather than around it.
The chamber of Advocate Manish Jha appears in bail, cancellation and criminal trial proceedings — for accused persons and for victims — before the District Courts of Delhi, the High Court of Delhi and the Supreme Court of India. This article is for general information; it is not legal advice and does not create an advocate-client relationship.
Frequently Asked Questions
In which cases is the informant's presence at the bail hearing obligatory?
Where bail is sought by a person accused of rape of a woman under sixteen or under twelve, or gang rape of a woman under eighteen — the offences corresponding to Sections 376(3), 376-AB, 376-DA and 376-DB IPC, now within Sections 65 and 70(2) of the BNS. The BNSS requires notice of the bail application to the Public Prosecutor and makes the presence of the informant, or a person authorised by her, obligatory at the hearing.
What is the notice period to the Public Prosecutor?
The court must give notice of the bail application to the Public Prosecutor within fifteen days of receiving it in the specified offence categories, so that the prosecution — and through it the informant — is never taken by surprise by a listing. In practice, Delhi courts also direct the investigating officer to serve the informant and file an affidavit of service.
Does the victim have a say in bail matters outside these categories?
Increasingly, yes. Victims are routinely permitted to file objections and address the court in serious offences, and a bail order passed without hearing a victim entitled to be heard is vulnerable in cancellation or revision proceedings. The BNSS separately requires the victim to be heard before withdrawal of prosecution, reflecting the same participatory principle.
What should the defence do about these requirements?
Build them into the timeline. An application in a covered offence that ignores the notice and presence requirements will be adjourned, and an order obtained in breach invites cancellation on procedural grounds alone. Ensuring service, recording the informant's presence or authorisation, and answering her objections on merits produces an order that survives scrutiny.