POCSO AND GRANTING OF BAIL BASED ON COMPROMISE: NO
MANDATE
Before entailing any discussion,
let us begin with the following observation of Supreme Court in a matter
captioned as APARNA BHAT & ORS. VERSUS STATE OF MADHYA PRADESH & ANR
CRIMINAL APPEAL NO. 329 OF 2021:
“A woman
cannot be herself in the society of the present day, which is an exclusively
masculine society, with laws framed by men and with a judicial system that
judges feminine conduct from a masculine point of view.”
To
take it a step further, the observation of Supreme Court in Para no.21 of
Aparna Bhat (Supra) shall be worthwhile to refer at the outset:
“Gender violence is most often unseen and is shrouded in a
culture of silence. The causes and factors of violence against women include entrenched
unequal power equations between men and women that foster violence and its
acceptability, aggravated by cultural and social norms, economic dependence,
poverty and alcohol consumption, etc. In India, the culprits are often known to
the woman; the social and economic "costs" of reporting such crimes
are high. General economic dependence on family and fear of social
ostracization act as significant disincentives for women to report any kind of
sexual violence, abuse or abhorrent behaviour. Therefore, the actual incidence
of violence against women in India is probably much higher than the data
suggests, and women may continue to face hostility and have to remain in
environments where they are subject to violence. This silence needs to be
broken. In doing so, men, perhaps more than women have a duty and role to play
in averting and combating violence against women”.
The Supreme Court had to revisit
the aspect again in view of repeated directions by several high courts relating
to granting of bail to the accused of sexual offences including the offenders
under the POCSO Act. The judgments of some high courts in this regard are as
under:
In Ravi Jatav v. State of M.P MCRC No. 13734/2020, the High Court of
Madhya Pradesh, while granting bail to an accused of committing offences under
Sections 376-D, 366, 506, 34 IPC) had imposed conditions that the accused
“shall register himself as a Covid-19 Warrior” and was to be assigned work of
Covid-19 disaster management at the discretion of the District Magistrate.
In Rakesh B. v. State of Karnataka Crl. P. No. 2427/2020 , the
Karnataka High Court granted bail to an accused alleged to have committed
offences under Sections 376, 420, 506 IPC and Section 66-B of the Information
Technology Act, 2000 (“IT Act”), and made remarks on the survivor’s conduct.
In Vikash
Garg Vs State of Haryana, the Punjab & Haryana High Court had
granted bail to three persons accused of committing offences
under Sections 376 D , 376 (2) (n), 376, 292, 120-B, 506 IPC
and Section 67 of the IT Act, and made observations regarding the
prosecutrix’s “casual relationships”, “promiscuous attitude”, “voyeuristic
mind”, etc. The appellants submit that no observation/condition should be made
which grants bail on the ground that the victim is of “loose character” or is
“habituated to sexual intercourse.”
In Samuvel v. Inspector of Police Crl OP No. 1881/2015 the High Court
of Madras was pleased to refer the case to mediation in a case of rape where
the prosecutrix was a minor and had become a mother of a child as a consequence
of rape, because the accused agreed to marry her.
The immediate cause of concern
was the order of Madhya Pradesh High Court, even while granting bail to the
applicant imposed the following conditions:
(i)
“The
applicant along with his wife shall visit the house of the complainant with
Rakhi thread/ band on 3rd August, 2020 at 11:00 a.m. with a box of sweets and
request the complainant –“X” to tie the Rakhi band to him with the promise to
protect her to the best of his ability for all times to come. He shall also
tender Rs. 11,000/- to the complainant as a customary ritual usually offered by
the brothers to sisters on such occasion and shall also seek her blessings. The
applicant shall also tender Rs. 5,000/- to the son of the complainant – “Y” for
purchase of clothes and sweets. The applicant shall obtain photographs and
receipts of payment made to the complainant and her son, and the same shall be
filed through the counsel for placing the same on record of this case before
this Registry. The aforesaid deposit of amount shall not influence the pending
trial, but is only for enlargement of the applicant on bail.”
Of course, it
does not go in consonance with what Supreme Court had earlier enunciated in a
matter reported as Kunal Kumar Tiwari v. State of
Bihar (2018) 16 SCC 74
and Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570.
Yet again, the Supreme Court in State of M.P v. Madanlal, 26 (2015) 7
SCC 681 has already dealt held that in cases of sexual offences, the idea of
compromise, especially in the form of marriage between the accused and the
prosecutrix is abhorrent, and should not be considered a judicial remedy, as it
would be antithetical to the woman’s honour and dignity.
In State of MP Vs Madanlal (Supra) it is
held as under:
“18. …We would like to clearly state that in a case of rape
or attempt of rape, the conception of compromise under no circumstances can
really be thought of. These are crimes against the body of a woman which is her
own temple. These are offences which suffocate the breath of life and sully the
reputation. And reputation, needless to emphasise, is the richest jewel one can
conceive of in life. No one would allow it to be extinguished. When a human
frame is defiled, the “purest treasure”, is lost. Dignity of a woman is a part
of her non- perishable and immortal self and no one should ever think of
painting it in clay. There cannot be a compromise or settlement as it would be
against her honour which matters the most. It is sacrosanct. Sometimes solace
is given that the perpetrator of the crime has acceded to enter into wedlock
with her which is nothing but putting pressure in an adroit manner; and we say
with emphasis that the Courts are to remain absolutely away from this
subterfuge to adopt a soft approach to the case, for any kind of liberal
approach has to be put in the compartment of spectacular error. Or to put it
differently, it would be in the realm of a sanctuary of error.”
The Supreme Court has thus
clarified and laid down various guidelines and therefore aforesaid appeal-Aparna Bhat (Supra) as filed has its genesis on several judgments
rendered by various high courts such as aforementioned, thereby, permitting
bails to the offenders on the basis of compromise and the marriage between the
victim and the accused. This did not pass
muster with the Supreme Court. The
appeal before Supreme Court was for seeking directions that all the High Courts
and trial Courts be directed to refrain from making plenary observations and
imposing conditions in rape and sexual assault cases, at any stage of judicial
proceedings. The concern was that trauma undergone by survivors cannot be
trivialized and in no manner these conditions should be allowed to adversely
affect the dignity of victim. The essence of the appeal was that clear
directions be passed to all Courts to refrain from imposing “irrelevant, freaky
or illegal bail conditions”.
The cause of concern and rightly
so, before the Supreme Court was that while granting bail in sexual offences
cases and even in the Protection of Children from Sexual Offences
Act, 2012 (POCSO) cases courts often took note of the compromise
between the survivor and accused, whereas such compromise should be of no relevance,
when deciding on cases of rape and sexual assault. These observations in
offences against women including in POCSO cases were extraneous. Moreover
granting of bail on the plea that an agreement to marry had been reached
between the accused and prosecutrix
also cannot be endorsed. Sometimes, shocking remarks are made on the character
of the prosecutrix, which is also
deplorable.
In APARNA BHAT (Supra) the
Supreme Court has laid down guideline in para no. 45, in respect of words
spoken during proceedings or in judicial order. The guidelines are as under:
The Courts should desist from
expressing opinion to the effect that:
(i)
Women are physically weak and need protection;
(ii)
Women are incapable of or cannot take
decisions on their own;
(iii)
Men are the “head” of the household and should
take all the decisions relating to family;
(iv)
Women should be submissive and
obedient according to our culture;
(v)
“Good” women are sexually chaste;
(vi)
Motherhood is the duty and role of every
woman, and assumptions to the effect that she wants to be a mother;
(vii)
Women should be the ones in charge of
their children, their upbringing and care;
(viii)
Being alone at night or wearing
certain clothes make women responsible for being attacked;
(ix)
A woman consuming alcohol, smoking,
etc. may justify unwelcome advances by men or “has asked for it”;
(x)
Women are emotional and often
overreact or dramatize events, hence it is necessary to corroborate their
testimony;
(xi)
Testimonial evidence provided by women
who are sexually active may be suspected when assessing “consent” in sexual
offence cases; and
(xii) Lack
of evidence of physical harm in sexual offence case leads to an inference of
consent by the woman.
The Supreme Court has also laid
emphasis on training and sensitization of judges, lawyers and prosecutors. The
emphasis is also on a module on gender sensitization to be included as part of
the foundational training of every judge. This should aid in according techniques
for judges to be more sensitive while hearing and deciding cases of sexual
assault. It is a common knowledge that the social biases such as misogyny are
entrenched in the society and efforts should be made to obviate that. The
module should also emphasize the prominent role that judges are expected to
play in society, as role models and thought leaders, in promoting equality and
ensuring fairness, safety and security to all women who allege the perpetration
of sexual offences against them. The use of apt and appropriate language, words
and phrases should be necessary and emphasized as part of this training.
ROLE
OF The National Judicial Academy
The Supreme Court has further
emphasized the role of National Judicial academy in order to devise speedily,
the necessary inputs which could form part of the training of young judges.
Adequate awareness regarding gender sensitization should be encouraged while
shunning stereotyping and unconscious biases that may sneak into judicial
reasoning. There should be emphasis on syllabi and content of such courses and necessary
consultation with sociologists and teachers in psychology, gender studies or
other relevant fields should be taken as a must. The course should be designed
in such a way so that due emphasis on the relevant factors are inbuilt, and besides
that requite training needs to be imparted about what should be avoided during
court hearings and what should not descend in judicial mind. It is also
important that Public Prosecutors and Standing Counsel too should undergo
mandatory training so that the prosecution, defence and bench should be well
aware of the do’s and don’ts. The duration of courses and contents should be
developed by the National Judicial Academy, in consultation with State
academies.
ROLE
OF BAR COUNCIL OF INDIA
The Supreme Court has also
emphasized the role of Bar Council of India (BCI) in as much as BCI should
consult subject experts and circulate a paper for discussion with professors in
law, faculties and colleges/universities with a view to devise courses that
should be taught at the undergraduate level in the LL.B program. It is
necessary so as to inculcate the element of gender sensitization amongst
students while studying law. Te topics on sexual offences and gender
sensitization should be mandatorily included as part of curriculum and this
should be also included in the syllabus for the All India Bar Examination.
Further, according to Supreme
Court, each High Court should also formulate a module on judicial sensitivity
to sexual offences with a view to test the candidates in the Judicial Services
Examination. The high court should in this regard take the help of relevant
experts in this regard.
In view of the repeated observation by
several high courts and granting bail in POCSO cases because of compromise and
/or upon marrying with the victim did not find favour with the Supreme Court.
The directions of Supreme court for grant of bail in POCSO cases/ cases of
sexual offences as contained in para no. 44 in Aparna Bhat (Supra) are as under:
(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
separately 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 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.
The aforesaid guidelines
enumerates as to what should not be part of oral observation and /or part of
judicial orders and the need of adequate training for the judges, lawyers,
prosecutors, including standing counsels are necessary, in as much as the very
nature of cases of sexual offences are sensitive and as it is significant that part
of society has inherent biases towards women, therefore, any uncalled for
observation is prone to heap further misery on women and Supreme Court has thus
deprecated such observation in clear words and the guidelines are also provided
for, while granting bail to the accused with a view to balance the rights of
accused and the victim. After all, no premium can be accorded to a misdemeanor
and marriage should not absolve a perpetrator of heinous crime such as sexual
offences.
---------
Anil k
khaware
Founder &
Senior Associate
Societylawandjustice.com
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