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Sexual Offence Against Woman- Any Form Of Compromise/Marriage With Accused Shouldn't Form Part Of Bail Condition: Allahabad High Court
Sparsh Upadhyay
29 May 2021 8:10 PM IST
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 the victim: Allahabad High 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...
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."
The matter before the High Court
The applicant, one Imran filed a Bail Application in connection with offences under Sections 452, 377, and 506 of I.P.C., after the rejection of his Bail Application by Additional Sessions Judge, Firozabad.
His counsel argued that the applicant is a driver and a married person and allegedly, the victim who is a transgender used to hire his taxi for the purpose of visiting places and the applicant had been falsely implicated in the present case to extract money from him.
The counsel for the first informant and the A.G.A relied upon the statement of the victim to submit that the first informant was victimised and was indulged in a sexual relationship forcefully, however, he did not dispute that initially for two years the applicant and the victim were in a consensual relationship.
Court's observations
At the outset, the Court observed that the Court while considering an application for bail must not go into deep into the merits of the matter such as the question of credibility and reliability of prosecution witnesses which can only be tested during the trial.
The Court further remarked that the Court should record the reasons which have weighed with the court for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making 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."
Aparna Bhatt's matter
The Supreme Court in March 2021, set aside Madhya Pradesh High Court Judgment wherein the Court had imposed a bail condition upon the person (accused of outraging the modesty of his neighbor) to request the victim to tie the rakhi around his wrist.
The Court issued the following guidelines:
- 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;
- 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 considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;
- In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and a copy of the bail order made over to him/her within two days;
- 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;
- 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;
- 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
- 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.
Case title - Imran v. State Of U.P
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