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STATE OF
MADHYA PRADESH
CRIMINAL
APPEAL NO. 329 OF 2021 as decided on March 18, 2021
Judges: A. Khanwilkar& S. RavindraBhat, JJ.
Facts: A
group of public-spirited individuals filed a special leave petition regarding
the adverse precedent set by the imposition of certain bail conditions in a
case involving a sexual offense against a woman. The petitioner impugns a part
of the Madhya Pradesh High Court’s judgment that imposed these bail conditions.
The petition sought directions that all Courts be directed to refrain from
making observations and imposing conditions in rape and sexual assault cases at
any stage of judicial proceedings that trivializes the trauma undergone by
survivors and adversely affects their dignity.
A bail order of the Madhya Pradesh judgment while
granting bail to an accused of sexual harassment imposed the condition that the
accused shall visit the complainant’s house with Rakhi thread/ band with a box
of sweets. The accused shall request the complainant to tie Rakhi to him with
the promise to protect her at all times to come. The accused was also directed
to tender Rs. 11,000/- to the complainant as a customary ritual offered by the
brothers to sisters. The accused was also directed to tender Rs. 5,000/- to the
son of the complainant – Vishal, for purchase of clothes and sweets. The
accused was also directed to obtain photographs and receipts of payment made to
the complainant and her son. The same shall be filed through the counsel for
placing the same on record of this case.
Issue: What is the scope of discretion of the Courts in granting
bail, in light of the expressions “in the interest of justice,” “such other
conditions court considers necessary” and “as it may think fit” provided in
Section 437(3)(c) as well as Section 438(2)(iv) of the CrPC?
Held: The
Court held that the “use of reasoning/language which diminishes the
offense and tends to trivialize the survivor, is to be avoided under all
circumstances”. The judgment illustrated certain conduct and actions as
irrelevant for adjudication – to say that the survivor had in the past
consented to such or similar acts or that she behaved promiscuously, or by her
acts or clothing, provoked the alleged action of the accused, that she behaved
in a manner unbecoming of chaste or “Indian” women, or that she had
called upon the situation by her behavior, etc.
The Court held that the conduct, actions or situations
are hereby deemed irrelevant, e.g., to say that the survivor had in the past
consented to such or similar acts or that she behaved promiscuously, or by her
acts or clothing, provoked the alleged action of the accused, that she behaved
in a manner unbecoming of chaste or “Indian” women, or that she had
called upon the situation by her behavior, etc. These instances are only
illustrations of an attitude that should never enter judicial verdicts or
orders or be considered relevant while making a judicial decision; they cannot
be reasons for granting bail or other such relief. Similarly, imposing
conditions that implicitly tend to condone or diminish the harm caused by the
accused and have the effect of potentially exposing the survivor to secondary
trauma, such as mandating mediation processes in non-compoundable offenses,
mandating as part of bail conditions, community service (in a manner of
speaking with the so-called reformative approach towards the perpetrator of
sexual offense) or requiring tendering of apology once or repeatedly, or in any
manner getting or being in touch with the survivor, is especially
forbidden.
The law does not permit or countenance such conduct,
where the survivor can potentially be traumatized many times over or be led
into some kind of non-voluntary acceptance, or be compelled by the
circumstances to accept and condone behavior that is a serious offense. The
Court gave the following directions in lieu of the imposing of conditions while
granting bail:
a.
Bail conditions
should not mandate, require or permit contact between the accused and the
victim. Such conditions should seek to protect the complainant from any further
harassment by the accused;
b.
Where circumstances
exist for the Court to believe that there might be a potential threat of
harassment of the victim, or upon apprehension expressed, after calling for
reports from the police, the nature of protection shall be separately21
considered and appropriate order made, in addition to a direction to the
accused not to make any contact with the victim;
c.
In all cases where
bail is granted, the complainant should immediately be informed that the
accused has been granted bail and a copy of the bail order made over to him/her
within two days;
d.
Bail conditions and
orders should avoid reflecting stereotypical or patriarchal notions about women
and their place in society and must strictly be in accordance with the
requirements of the Cr. PC. In other words, discussion about the dress,
behavior, or past “conduct” or “morals” of the prosecutrix
should not enter the verdict granting bail;
e.
The courts, while
adjudicating cases involving gender-related crimes, should not suggest or
entertain any notions (or encourage any steps) towards compromises between the
prosecutrix and the accused to get married, suggest or mandate mediation
between the accused and the survivor, or any form of compromise as it is beyond
their powers and jurisdiction;
f.
Sensitivity should
be displayed at all times by judges, who should ensure that there is no
traumatization of the prosecutrix during the proceedings, or anything said
during the arguments; and
g.
Judges especially
should not use any words, spoken or written, that would undermine or shake the
confidence of the survivor in the fairness or impartiality of the Court