Judgement on Sexual Harassment Case

Case Number:      Crl.A. No.-000329-000329 / 2021

Petitioner:   APARNA BHAT

Respondent:         THE STATE OF MADHYA PRADESH

Petitioner's Advocate    PUKHRAMBAM RAMESH KUMAR

Bench:            HON'BLE MR. JUSTICE A.M. KHANWILKAR, HON'BLE            MR. JUSTICE S. RAVINDRA BHAT

Judgement by:     HON'BLE MR. JUSTICE S. RAVINDRA BHAT

 

Brief Facts:

On 20/04/2020at about 2.30 a.m., the accused, a neighbour of the complainant, entered her house and caught hold of her hand, and allegedly attempted to harass her sexually.

Accordingly, Crime No. 133/2020 was registered at Police Station, Bhatpachlana, District-Ujjain for the offences punishable under sections 452, 354A, 323 and 506 of the IPC. The case was investigated and a charge sheet was filed.

 An application under Section 438 of CrPC seeking pre-arrest bail was filed by the accused. The High Court, by the impugned order, even while granting bail to the applicant imposed the following condition which is under challenge in this petition.

(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 -Sarda Bai 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 –

Vishal 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.”

Submission by the appellant was made that the expressions “in the interest of justice”, “such other conditions court considers necessary” and “as it may think fit” as provided in the bare text of the Section 437(3)(c) as well as Section 438(2)(iv) of the CrPC, give discretion to the Courts to impose such other conditions as may be required in the facts of a particular case, but those conditions have to be in consonance with the other conditions in the provisions, the purpose of granting bail and no other consideration.

Judgement

The Court held that that the use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is especially to be avoided under all circumstances. 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 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 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 behaviour what is a serious offence.

It was directed by the court that henceforth

(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 21 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.

It was also directed that the courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, 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 22 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 court also mandated that a module on gender sensitization be included, as part of the foundational training of every judge aiming at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny. 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.