Aparna Bhat v. State of M.P., 2021, SCC

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The analysis on this case law is done by, Ms. Sonika, a B.A.LL.B (Hons) student from Amity University, Lucknow. 

In The Supreme Court Of India

(CRIMINAL APPELLATE JURISDICTION)

NAME OF THE CASEAparna Bhat v State of MP
CITATION2021 SCC OnLine SC 230
DATE OF JUDGMENTMarch 18th, 2021
APPELLANTSAparna Bhat and Others
RESPONDENTSState of Madhya Pradesh and An others
BENCH/JUDGESA.M. Khanwilkar and S. Ravindra Bhat
STATUES/CONSTITUTION INVOLVEDIndian Penal Code, 1860
Code of Criminal Procedure, 1973
Information Technology Act, 2000
Protection of Children from Sexual Offences Act, 2012
SC/ST (Prevention of Atrocities) Act, 1989
IMPORTANT SECTIONS/ARTICLESIndian Penal Code, 1860- Sections 323, 354, 354A, 376, 452, 506
Code of Criminal Procedure, 1973- Sections 437(3), 438
Information Technology Act, 2000- Sections 66-B, 67
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989- Sections 3(1) (w), 3(2)(V), 3(2) (v-a)

Abstract

The appellants are public-spirited individuals who are apprehensive about the negative precedent set by the imposition of certain bail conditions in a case involving a sexual offense against a woman. In this case, they challenge a part of the Madhya Pradesh High Court’s verdict that imposed some questionable bail conditions on the accused.

The brief facts of the case are that on 20.04.2020 at about 2.30 a.m., the accused, a neighbor of the complainant, entered her residence and caught hold of the complainant’s hand, allegedly attempting to sexually harass her. A complaint was registered at the Police Station, Bhatpachlana, District-Ujjain, for the offenses punishable under sections 452, 354A, 323 and 506 of the Indian Penal Code. A charge sheet was filed once the case was investigated. The accused filed an application under Section 438 of the Code of Criminal Procedure, seeking pre-arrest bail. The High Court, by the impugned order, while granting bail to the applicant, imposed some conditions which are challenged in this petition.[1]

Introduction

The United Nations Organisation has defined “violence against women” as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.”[2]

Violence against women shall be understood to include but not be limited to physical, sexual, and psychological violence occurring in the family, including battering, sexual abuse of female children in their household, dowry-related violence, marital rape, and female genital mutilation, and other traditional practices harmful to women, non-spousal violence, and violence related to exploitation. Physical, sexual, and psychological violence occurs within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions, and elsewhere, trafficking in women, and forced prostitution.

 Physical, sexual, and psychological violence perpetrated or condoned by the State; physical, verbal, or other acts that threaten or give them acute discomfort, undermining their dignity, self-worth, and respect; or is to silence or subdue the survivor. The State, wherever it occurs, must bear the full brunt of the violence against women.[3]

Section 354 of the IPC “criminalizes any act by a person that assaults or uses criminal force against a woman with the intention or knowledge that it will outrage her modesty. Such an act is punishable with either simple or rigorous imprisonment of up to 2 years, or a fine, or both”.[4]

The term “Bail” isn’t defined in the Criminal Procedure Code. In general, bail is described as the procedure of releasing an accused in exchange for a quantity of money and a promise that they will appear in court in the future. Bail is considered to be an individual right accorded by the Constitution under Article 21. Anticipatory bails are issued before a person is arrested. It’s also known as a pre-arrest bail. It is referred to as ‘grant apprehending arrest’ in Section 438 of the Code of Criminal Procedure.

Facts Of The Case

  • The accused is a neighbor of the complainant, Sarda Bai. He intruded into her house and attempted to sexually harass her. The complainant filed an FIR for the offenses punishable under sections 452[5], 354A[6], 323[7], and 506[8] of the Indian Penal Code. A charge sheet was filed once the case was investigated.
  • The accused applied for anticipatory bail under Section 438[9] of the Code of Criminal Procedure.
  • The High Court, while granting bail, imposed certain conditions on the accused which are being challenged in this case.
  • The conditions were that the accused was instructed to visit the victim, Sarda Bai’s house along with his wife. He had to bring a Rakhi thread/band along with a box of sweets and had to request the complainant to tie the Rakhi and promise to protect her. He must also pay Rs. 11,000/-to the complainant as a customary ritual on the occasion of Raksha Bandhan and ask for her blessings. The applicant should additionally submit Rs. 5,000/-to the complainant’s son, Vishal, for the purchase of clothing and sweets.[10]
  • A petition was filed by Advocate Aparna Bhat and eight other advocates in response to a questionable order issued by the Madhya Pradesh High Court on July 30 ordering the man accused of sexual assault to visit the victim’s home on the occasion of Raksha Bandhan with a Rakhi and get it tied by her as a condition of bail.[11]
  • The Court reviewed a variety of rulings from various courts involving sexual assault that demonstrated archaic gender beliefs, gender stereotyping, and insensitivity towards the victims of sexual assault.

Issues Raised Before The Courts

  1. Can a compromise be reached between the accused and the victim in these cases?
  1. Do such orders constitute unfair trial procedures?
  1. Are such court orders acceptable, and if so, what effect would such rulings have on our society?
  1. Should the accused be allowed to meet the victim or any of her family members or acquaintances?
  1. What are the guidelines that should be followed by the courts when granting bails or anticipatory bails to the accused?

Arguments From The Appellant’s Side

Learned counsel for the appellants challenged the negative precedent being set by the bail conditions being set by the High Court of Madhya Pradesh in a case involving sexual assault.

The appellants brought to the notice of the court various similar cases and decisions where the courts and judges made questionable observations about the victims of sexual assault or violence.

The appellants stated that in many cases, particularly under the POCSO Act, the courts granted bail on the grounds that the accused and prosecutrix had reached an agreement to marry. Furthermore, they said that when hearing cases of sexual harassment and rape, judges made alarming statements about the prosecutrix’s character.[12]

Petitioners cite State of M.P vs Madanlal,[13] and argued that in cases of sexual offenses, the idea of compromise, particularly marriage between the accused and the prosecutrix, is detestable and should not be considered a judicial remedy.

The appellants submitted that no observation or condition should be made which grants bails on the assumption that the victim is of “loose character” or “habituated to sexual intercourse.” This was observed in the case Vikas Garg v. State of Haryana,[14] by the High Court of Punjab.

The appellants reference Kunal Kumar Tiwari v. State of Biyar,[15] and Sumit Mehta v. State (NCT of Delhi)[16] and claim that the judgment made by the respective courts in both of these cases must be adopted by all courts while evaluating and dealing with bail applications.

Suggestions From The Intervenors

Counsel for the Intervenors contended that the power to impose conditions has been conveyed in broad terms under Sections 437(2) and 438 by using the phrase “any condition.” Recently, the High Courts have begun imposing irrelevant conditions on bails granted under these clauses.

The Intervenors also submitted that the Court cannot act as a social reformer or charity fundraiser while ruling on a bail application and imposing conditions that have no connection with the offense or are relevant to the object of the bail provisions.[17]

They urged the Court to issue guidelines and directions on gender sensitization of the bar and bench, especially in judicial empathy towards the prosecutrix.

The learned Attorney General, who had been issued a notice in this case, submitted remarks in support of the appeal. He filed a detailed note suggesting the steps that should be taken to educate and sensitize all stakeholders, particularly courts and judges, when dealing with crimes against women.[18]

Judgment

The bench stated that in rape and sexual assault cases, no compromise may be reached or even considered since it would be against the honour of the victim. Courts and other law enforcement authorities are expected to be unbiased and are responsible for ensuring fair conduction of the trial by being impartial and neutral. Such negative approaches in rape and sexual assault trials would damage the survivor’s faith in the fairness and impartiality of the courts.

The Court held that use of reasoning or language that undermines the offense and seeks to belittle the survivor should be avoided in all situations. In the circumstances of sexual offenses, the notion of compromise, particularly marriage between the accused and the prosecutrix, should not be considered, since any such attempt would be disrespectful to the woman’s dignity.[19]

At various stages, judgments establish precedents that are adopted by society at large. By the Courts orders such as tying Rakhi on the wrist of the accused converts the molesters into brothers, reducing and weakening the charge of sexual harassment. As a result, under all circumstances, the use of reasoning/language that reduces the crime and seeks to belittle the survivor should be avoided.[20]

By using Rakhi tying as a bail requirement, a molester is transformed into a brother through a judicial mandate. This is completely inappropriate, as it dilutes and diminishes the offence of sexual harassment.

S. Ravindra Bhat, J.: stated—

“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.”[21]

The court issued the following directives after establishing several guidelines:

  • Contact between the accused and the complainant or her acquaintances should never be authorized as a condition for bail, and if bail is granted, the complainant should be informed promptly, along with a copy of the bail order delivered to her within two days.
  • Any offer for a compromise between the accused and victim, such as getting married or mandating mediation, shouldn’t be entertained.
  • Judges must ensure that nothing they say undermines the Court’s impartiality or justice, and they must remain sensitive to the complainant’s anguish.
  • In terms of the training and sensitization of judges and attorneys, including public prosecutors, the court ordered that a gender sensitization module must be incorporated as part of every judge’s foundational training.
  • Every High Court will develop, with the assistance of competent experts, a module on judicial sensitivity towards sexual offenses that will be tested in the Judicial Services Examination.
  • The National Judicial Academy has also been urged to incorporate gender sensitization into young judge training as soon as feasible.
  • Similarly, the Bar Council of India was mandated to incorporate gender sanitization in the LL.B. curriculum and as a mandatory topic in the All-India Bar Examination syllabus.[22]

Conclusion

The historic decision outlawed arbitrary bail terms, which can negatively affect and further traumatize the victim. It also investigated the limitations of Section 438 of the CrPC, the impact such irresponsible restrictions imposed by the courts have on the victims, and discussed other cases in which the courts had treated the victims unfairly or with a bias.

Whatever the judges say becomes precedent, which is subsequently followed by lesser courts in their judgments. Therefore, judges must exercise extreme caution when making any comment that impacts the fundamental foundation of the judiciary and people’s faith. In situations involving women’s bodies, particularly sexual offenses, even minor errors in judgment or statements made by the courts can result in grave offenses against the survivors.[23]

In my opinion, the judgment made by the Supreme Court is a progressive step toward humanizing the survivors of sexual assault and treating them with respect and dignity. By delivering this judgment and expressing regret for the paternalistic and sexist attitudes displayed in past court rulings, the Supreme Court has kindled optimism for the healthy progress of our society. The guidelines and regulations laid down by the Supreme Court will help fight judicial bias/stereotyping and act as a deterrent for all courts and judges from delivering such judgments in the future.

Reference Links

[1] 2021 SCC Online SC 230.

[2] WHO, ,https://www.who.int/health-topics/violence-against-women# (Last visited July 7, 2022).

[3] Joanne Conaghan, Law and Gender (Oxford: Oxford University Press, 2013) at 113.

[4] Safecity, https://www.safecity.in/sexual-violence-laws-under-the-indian-penal-code/# (Last visited July 7, 2022).

[5] Indian Penal Code, 1860, § 452.

[6] Indian Penal Code, 1860, § 354A.

[7] Indian Penal Code, 1860, § 323.

[8] Indian Penal Code, 1860, § 506.

[9] Code of Criminal Procedure, 1973, § 438.

[10] Supra note 2.

[11] Vishalakshi, Aparna Bhat v/s State Of Madhya Pradesh, Legal Service India (July 7, 2022, 4:00 PM), https://www.legalserviceindia.com/legal/article-5587-aparna-bhat-v-s-state-of-madhya-pradesh.html.

[12] Supra note 2.

[13] State of M.P v. Madanlal, (2015) 7 SCC 681.

[14] Vikas Garg v. State of Haryana, (2014) SCC Online P&H 698.

[15] Kunal Kumar Tiwari v. State of Bihar, (2018) 16 SCC 74.

[16] Sumit Mehta v. State (NCT of Delhi), (2013) 15 SCC 570.

[17] Indian Kanoon, https://indiankanoon.org/doc/13024806/ (Last visited July 8, 2022).

[18] Id.

[19] Supra note 2.

[20] Supra note 18.

[21] Supra note 2.

[22] Supra note 12.

[23] Id.