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