The Delhi High Court has set aside a trial court order granting regular bail to a man accused of rape on a false promise of marriage, holding that the prosecutrix was entitled to be heard, and has sent the bail application back for a fresh decision within two weeks, without expressing any view on the merits.
New Delhi: The Delhi High Court has set aside a trial court order granting regular bail, within three days of arrest, to a man accused of rape on a false promise of marriage, holding that the prosecutrix had to be given an opportunity to be heard, and has remanded the bail application for a fresh decision [Ms G v. State NCT of Delhi and Another].
Justice Saurabh Banerjee passed the judgment on September 28, 2026 in Crl.M.C. 4970/2026, after reserving it on September 3, 2026. The petition, under Section 483(3) read with Section 528 of the BNSS, was filed by the prosecutrix. The allegations are untested, the accused is presumed innocent, and the Court has not gone into the merits. The names of the parties are withheld, since the case concerns an allegation of a sexual offence.
The background
FIR No. 317/2026 was registered on June 29, 2026 at Police Station Dayalpur under Section 376 of the IPC read with Section 69 of the BNS, on the prosecutrix’s complaint. She was in judicial custody at the time in connection with a separate FIR, in which she is herself an accused. Her case is that the accused, her neighbour, had physical relations with her several times from January 2022 on a false pretext of marrying her, after proposing to her on October 10, 2021. She says that on April 14, 2026 the accused’s fiancée and her family threatened and assaulted her, and that she was falsely implicated in the separate FIR.
Her statement was recorded on June 29, 2026, and the accused was arrested the next day. The Additional Sessions Judge-03, North-East District, Karkardooma Courts, granted him regular bail on July 3, 2026 in Bail Application No. 625/2026. The prosecutrix challenged that order and sought cancellation of the bail.
The question before the Court
The Court said the short question was whether the prosecutrix should have been given an opportunity to be present and be heard when the trial court granted regular bail. It heard counsel for the prosecutrix, the accused and the Additional Public Prosecutor. Advocates Bharat Sharma and Jyoti Sharma appeared for the prosecutrix, APP Satish Kumar for the State, and Advocates Dhananjay Singh, Mandeep Baisara, Kavesh Bidhuri and Shobhit Anand for the accused.
The law on hearing the victim
The Court noted that Section 439(1A) of the CrPC makes the presence of the informant, or a person she authorises, obligatory at the hearing of a bail application in cases under Sections 376(3), 376AB, 376DA and 376DB of the IPC, and that Section 483(2) of the BNSS is the corresponding provision for Sections 65 and 70(2) of the BNS. It also noted that the High Court’s Practice Direction No. 67/Rules/DHC of September 24, 2019, applicable to it and to the subordinate Sessions Courts, prescribes the form in which the Investigating Officer must inform the informant of a bail application.
Beyond those provisions, the Court relied on the Supreme Court’s decision in Jagjeet Singh v. Ashish Mishra, which held that a victim has a legally vested right to be heard at every step after an offence, that the presence of the State does not amount to hearing the victim, and that victims cannot be expected to sit on the fence while bail is decided. It also relied on Ms X v. State of Maharashtra, where the Supreme Court held, in a challenge to anticipatory bail in a rape case, that the State’s presence could not whittle down the prosecutrix’s right, especially where she is ordinarily the only witness, and that it was she who had set the criminal machinery in motion. It noted that a coordinate Bench, in Ms P v. State (NCT of Delhi), cancelled regular bail in a rape case solely because the prosecutrix had not been served with the bail application or heard.
The Court’s conclusion
The Court held that a victim like the prosecutrix, who set the machinery in motion by filing a complaint under Section 376 of the IPC or Section 69 of the BNS, has to be given an opportunity to take part at all stages of the case, including when the accused applies for regular bail. It held that the grant of bail within three days, in these circumstances, had to be set aside.
The Court added that it was not going into the merits, and that the accused might have a good case on merits, but that the impugned order could not stand.
The order
The trial court’s order of July 3, 2026 was set aside, and Bail Application No. 625/2026 was remanded to be decided afresh after giving the prosecutrix an opportunity to be heard, preferably within two weeks. The trial court is to decide it on its own merits, without being influenced by any observations of the High Court. Since the order was being set aside only because the trial court failed to issue notice to the prosecutrix, the accused is not to be re-arrested until the fresh decision. The petition and the pending application were disposed of.
Why it matters
The judgment applies the Supreme Court’s rulings on victim participation to a case of rape on a false promise of marriage, treating notice and a hearing for the prosecutrix as a requirement for the bail hearing, and not something that depends on the State’s presence. The Court set aside the bail order for that procedural reason alone.
The order does not decide whether bail should be granted or refused, and it protects the accused from re-arrest in the meantime. The trial court will now decide the application after hearing all sides, and the allegations against the accused remain to be tested at trial.
Case Title: Ms G v. State NCT of Delhi and Another [Crl.M.C. 4970/2026] (names withheld)
Bench: Justice Saurabh Banerjee, Delhi High Court
Date of Judgment: September 28, 2026
Appearances: Advocates Bharat Sharma and Jyoti Sharma appeared for the prosecutrix, Additional Public Prosecutor Satish Kumar, with SI Shiv Dayal Kumar, appeared for the State, and Advocates Dhananjay Singh, Mandeep Baisara, Kavesh Bidhuri and Shobhit Anand appeared for the accused.