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‘Sexual offences against woman’ - bail conditions that go against the mandate of “fair justice” to the victim should not be imposed

Dated: May 29, 2021

                                                                                                                                                            -by Megha Bhatia

The Allahabad High Court recently held that when granting bail in cases involving sexual offenses against women, bail conditions that go against the mandate of “fair justice” to the victim should not be imposed, such as requiring the victim to make any kind of compromise or marriage with the accused.

Justice Saurabh Shyam Shamshery’s single judge bench further stated that the Court should consider the Supreme Court’s directive in Aparna Bhat and others vs. State of Madhya Pradesh and another, while granting bail in such situations.

Importantly, in the Aparna Bhat matter, the Apex Court had held thus: “Imposing (Bail) 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 no compoundable offences, mandating as part of bail conditions, community service (in a manner of speaking with the so-called reformative approach towards the perpetrator of sexual offence) or requiring tendering of apology once or repeatedly, or in any manner getting or being in touch with the survivor is especially forbidden.”

The case of Aparna Bhatt 

In March 2021, the Supreme Court overturned a Madhya Pradesh High Court judgment that required the individual accused of insulting his neighbour’s modesty, to beg the victim, to tie the Rakhi around his wrist as part of his bail conditions.

Following guidelines were issued by the court:

1. Contact between the accused and the victim should not be mandated, required, or permitted under bail terms. The complainant should be protected from additional harassment by the accused under such conditions;
2. The nature of protection shall be separately considered and appropriate order made, in addition to direction to the accused not to make any contact with the victim, 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;
3. In all situations when bail is granted, the complainant should be told right once that the accused has been granted bail and should get a copy of the bail decision within two days;
4. Bail conditions and orders must rigorously follow the provisions of the Cr. PC and avoid expressing stereotyped or patriarchal beliefs about women and their role in society. In other words, there should be no debate regarding the prosecutrix’s attire, behaviour, or previous “conduct” or “morals” in the decision granting bail;
5. While adjudicating cases involving gender-related crimes, the courts should not suggest or entertain any notions (or encourage any steps) toward compromises between the prosecutrix and the accused to marry, suggest or mandate mediation between the accused and the survivor, or any other form of compromise because it is outside their powers and jurisdiction;
6. Judges should be sensitive at all times, ensuring that the prosecutrix is not traumatized by anything stated during the processes, or by anything spoken during the arguments; and 
7. Judges, in particular, should avoid using any comments, whether spoken or written, that may undermine or disturb the survivor's faith in the court's justice or impartiality.

Before the High Court 

Following the denial of his Bail Application by Additional Sessions Judge, Firozabad, the applicant - Imran, filed a Bail Application in connection with offences under Sections 452, 377, and 506 of the Indian Penal Code.

His lawyer contended that the applicant is a driver and a married man and has a child, and that the victim, a transgender man, used to take his cab to go places, and that the applicant had been unfairly accused in the current case to extort money from him.

It was also revealed that applications for filing First Information Reports (FIRs) against each other had been filed at the pertinent court on behalf of the victim and the applicant’s wife, and which is still pending.

The first informant’s counsel and the Additional Government Advocate(AGA) relied on the victim’s statement under Section 164 of CrPC, to argue that the first informant was victimized and forced into a sexual connection; yet, he did not dispute that the applicant and the victim were in a consensual relationship for two years.

The Court found that there was no persuasive evidence to indicate the potential of tampering with the evidence after reviewing the submissions, material on record, and the detention already undergone.

Accordingly, bail was granted to the applicant.

“Prima-facie the applicant and the victim were in consensual relationship for a period of two years and that there are applications for lodging F.I.Rs. against each other and further prima-facie there is a dispute for exchange of money and also considering that the applicant is in jail since 13.1.2021 and the prevailing situation due to Covid-19 Pandemic, a case of bail is made out. Let the applicant Imran, involved in aforesaid case crime number be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned.”

Observations of the Court 

The Court stated at the start that while evaluating an application for bail, the Court should not go too deeply into the merits of the case, such as the question of the prosecution witnesses’ credibility and dependability, which can only be tested at the trial.

The Court further said that the grounds that the court considered while using its discretionary power to grant or deny bail should be recorded. Conditions for the issuance of bail should not be so rigorous that they are impossible to meet, rendering the grant of bail illusory.

Significantly, while granting him bail, the Court observed: “The Court while granting bail in the cases involving sexual offence against a woman should not mandate bail conditions, which is/are against the mandate of “fair justice” to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others Vs. State of Madhya Pradesh and another, 2021 SCC Online SC 230, in this regard.”

In this regard, the court also remarked that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be “exercised judiciously and in a humane manner, compassionately and not in whimsical manner.”