'Totally Impermissible': SC On Custody Of Social Activists Who Supported Bihar Gangrape Survivor; Directs Release

A Bench comprising of Justices Arun Mishra, BR Gavai and Krishna Murari heard the matter and issued notice in the same. While directing for the release of the Petitioners on bail on furnishing personal bond for a sum of Rs. 10,000, Justice Mishra orally observed that the order by way of which they had been sent to custody was "totally impermissible".

Advocate Vrinda Grover, along with Advocates Ratna Appnender and Soutik Banerjee, appeared on behalf of the Petitioners.

The Petitioners, Kalyani Badola and Tanmay Nivedita, both working with the NGO Jan Jagran Shakti Sangathan (JISS) have been in custody since 10^th July, 2020 for allegedly misbehaving with the Magistrate while attempt to provide support to a gangrape survivor. The two activists, along with the gangrape survivor, had been sent to custody after the Araria magistrate Mustafa Shahi found them in contempt.

Consequently, the Chief Judicial Magistrate Court granted bail to the gangrape survivor vide Order dated 17^th July. However, the same was denied to the two social activists who remain in judicial custody.

The plea, filed by Advocate-on-Record Liz Mathew, contends that the order of the Ld. CJM is unsustainable in law as "it is contrary to settled bail jurisprudence as laid down in catena of judgements of this Hon'ble Court including Sanjay Chandra v. CBI (2012), Gurcharan Singh & Ors. v. State (Delhi Administration) (1978)".

It is further submitted in the plea that the arrest of the Petitioners and their subsequent detention is contrary to the scheme of Section 41A of the Code of Criminal Procedure. Subsequently, a bail petition was filed before the Sessions Court, Araria, Bihar. A Criminal Writ Petition was also filed before the Patna High Court, however, due to an outbreak of COVID-19 across the State, and amongst the High Court staff, proceedings before the HC were suspended.

The FIR registered against the Petitioners enlists provisions of the Contempt of Courts Act, 1971, and sections of the Indian Penal Code, of which only Section 353 is non-bailable. Additionally, it is averred that the FIR is not maintainable in law as there is a statutory bar against police investigating criminal contempt of court.

"The inclusion of provisions from the Contempt of Courts Act, 1971, in the FIR reveal non-application of mind and arbitrary exercise of authority which unfortunately is writ large over the entire proceedings against the Petitioners. Further, in grave violation of Section 228A IPC, the rape survivor's identifying details, including her father's name and full address were made known to and reported by the local press, thereby breaching her fundamental right to dignity and privacy".

The plea submits that the Petitioners have been incarcerated for over twenty days now, and due to the suspension of court proceedings in Bihar as a result of the pandemic, the Petitioners have been constrained to approach the Supreme Court.

"The Petitioners also seek to bring to this Hon'ble Court's notice some very disturbing facts concerning the administration of justice in cases of sexual violence against women, thereby seeking the Hon'ble Court's intervention to uphold the rule of law and to ensure the dignity of women and an enabling environment for a victim/survivor of sexual violence to access justice".

Click Here To Download Order

[Read Order]

Click Here To Download Petition

[Read Petition]