POCSO Act: Allahabad HC Says Anticipatory Bail Order Passed Without Hearing Victim Is Void Ab Initio

The Allahabad High Court recently set aside an anticipatory bail order granted to two accused in a case involving alleged sexual assault of a minor under the POCSO Act, holding that the order could not stand because the victim/informant had not been afforded an opportunity of hearing.

Court rejected the argument that bail could not be cancelled without proof of post-bail misconduct.

"When an order granting pre-arrest bail is passed in direct contravention of a mandatory statutory command and in violation of the principles of natural justice (audi alteram partem), such an order is void ab initio and suffers from a jurisdictional error. It is liable to be set aside on this ground alone irrespective of whether the accused has misused the liberty after the order," said the bench of Justice Vivek Kumar Singh.

Why was anticipatory bail challenged?

The informant lodged an FIR on February 6, 2023, alleging sexual assault of a minor by the two accused. The case was registered under Sections 74, 115(2), 351(1) and 352 of the Bharatiya Nyaya Sanhita (BNS), and Sections 7/8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

After investigation, the police submitted a final report. The informant challenged this by filing a protest petition.

On February 14, 2025, the Special Judge (POCSO Act), Bulandshahar, allowed the protest petition and treated the matter as a complaint case. After considering the material and evidence produced, the special judge summoned the two accused on October 15, 2025, to face trial.

After learning of the summoning order, the accused applied for anticipatory bail on January 5, 2026. The special judge granted them anticipatory bail on January 17, 2026. The record did not show that notice had been issued to the victim, her natural guardian or the informant, or that they had been given an opportunity to be heard before bail was granted.

The informant moved the high court seeking cancellation of the anticipatory bail order.

In pursuance of high court's order, the explanation provided by the special judge admitted that no notice had been issued before granting bail to the accused. However, it stated that the police had informed the informant about the pending bail application.

Victim's right to participate cannot be ignored in POCSO cases

Court examined Rules 4(13), 4(14) and 4(15) of the POCSO Rules, 2020, which require the police or Special Juvenile Police Unit (SJPU) to keep the child and the child's parents, guardian or trusted person informed about developments in the case, including applications filed, court proceedings and the bail status of the accused.

It also considered Section 40 of the POCSO Act, which entitles the child's family or guardian to legal assistance, including a lawyer provided by the Legal Services Authority if they cannot afford one.

Relying on the Supreme Court's decision in Jagjeet Singh v. Ashish Mishra @ Monu, (2022) 9 SCC 321, court reiterated that victims have participatory rights in criminal proceedings and must receive a fair and effective hearing when they seek to participate.

Regarding the explanation of the special judge, the high court pointed out that the material placed on record did not establish how the police had informed the informant. It was not clear as to how this information was communicated or who had received it.

Court noted that the purported notice dated January 16, 2026, did not contain the signature of the informant or victim. It also did not clarify whether the information had been conveyed verbally or through WhatsApp.

Bail can be set aside for procedural illegality

The high court referred to the Supreme Court's decision in Mahipal v. Rajesh Kumar Alias Polia, AIR 2020 SC 670, which recognised that a bail order may be set aside where the court failed to consider relevant factors or the order reflects non-application of mind.

Court held that since the victim or her guardian had not been given an opportunity of hearing and that the statutory provisions had been violated, the anticipatory bail order suffered from manifest illegality and procedural irregularity and could not be sustained in law.

Accordingly, it set aside the anticipatory bail order and remanded the matter to the special judge for fresh consideration after notice and a fair hearing to the victim and the State.

Meanwhile, court granted the accused protection from coercive action for six weeks.

Case Title: Veer Singh v. State of Uttar Pradesh & 2 Others

Order date: September 29, 2026

Bench: Justice Vivek Kumar Singh