Saturday, October 21, 2023

POCSO AND GRANTING OF BAIL BASED ON COMPROMISE: NO MANDATE

 


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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