Can't Take Cognizance Of Rape Accused Willingness To Marry Victim While Hearing Bail Plea: Allahabad High Court

Importantly, the Bench of Justice Vivek Agarwal said that it was estopped from taking cognizance of any such compromise (between the rape accuse and victim) once the statements of the victim are read, as recorded under Section 164 Cr.P.C.

The matter in brief

The court was hearing the regular bail application filed by the applicant-Kamil, who was aggrieved of an order passed by Special Judge, POCSO Act, Allahabad, rejecting his bail application.

The counsel for the applicant submitted that prosecutrix was major and that she had filed an application to the effect that she was willing to marry the accused.

Further, placing reliance on such documents, it was submitted that since prosecutrix was willing to marry the applicant, it was a good case for enlarging the applicant on bail.

Lastly, it was also submitted that prima facie, it appeared to be a case of consent especially, once it comes on record that prosecutrix, as per the medical determination of age, was 18 years of age at the time of the incident.

On the other hand, the AGA, in his turn, submitted that prosecutrix had not supported the case of the applicant and that in her statement under Section 164 Cr.P.C., she had supported the prosecution version.

The AGA also submitted that in the light of the law laid down in the case of Gold Quest International Private Limited vs. State of Tamil Nadu and Others; (2014) 15 SCC 235, such heinous crime as under Section 376 IPC, cannot be compounded or proceedings, cannot be quashed merely because the prosecutrix decides to marry the accused.

Importantly, the Court noted that it had also come in the order-sheet that though the victim had stated that she wanted to marry the applicant, but the affidavit filed in this regard only contained a thumb impression of the victim and does not contain a reciprocal sentiments of the accused.

Court's order

At the outset, the Court said:

"Notwithstanding the sentiments of the victim, as has been held by Supreme Court in the case of Aparna Bhat and Others vs. State of M.P. and Anothers; 2021 CRI. L. J. 2281, this Court is estopped from taking cognizance of any such compromise once the statements of the victim are read, as recorded under Section 164 Cr.P.C. before the Magistrate and therefore, bail application fails and is dismissed."

Further, the Court also declined to take into account the statement of the accused that he was willing to marry the prosecutrix.

"This Court cannot take cognizance of such statements while considering bail application," said the Court.

In an important observation, the Allahabad High Court recently held that while granting bail in sexual offences against a woman, bail conditions which is/are against the mandate of "fair justice" to the victim shouldn't be imposed such as to make any form of compromise or marriage with the accused.

The Bench of Justice Saurabh Shyam Shamshery also ruled that the Court, while granting bail in such cases, shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others Vs. State of Madhya Pradesh and another, LL 2021 SC 168

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 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."

Case title - Kamil v. State of U.P. and Another

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