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CASE COMMENT: APARNA BHAT & ORS. VERSUS STATE OF MADHYA PRADESH & ANR (2021) SCC 230
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CASE COMMENT: APARNA BHAT
& ORS. VERSUS STATE OF MADHYA PRADESH & ANR (2021) SCC 230
Authored By - Rachana Panthari
B.A.L.L.B (Hons.),
(2008-13) NLIU, BHOPAL
ABSTRACT
A case commentary of APARNA BHAT
& ORS V. STATE OF MADHYA PRADESH & ANR, which the Honourable Supreme
Court determined on March 18, 2021 is presented in the current paper. The
Supreme Court pronounced its ruling in the matter following a Special Leave
Petition under Article 136 of the Constitution. Justices A.M. Khanwilkar and S.
Ravindra Bhat presided over the hearing, while J. Ravindra Bhat wrote the
verdict. The appellants had filed an appeal to challenge a portion of the
Madhya Pradesh High Court's ruling that imposed certain bail conditions in a
case involving sexual offence against a woman. The petitioners requested the
Court's involvement and urged it to give directives or guidelines on bail
and anticipatory bail to ensure that courts impose only legal conditions.
In addition, the apex court was encouraged to provide directives about the
gender sensitization of the bar and the bench, particularly in terms of
judicial empathy for the prosecutrix.
INTRODUCTION
In Vikram V. State of Madhya Pradesh
(MCRC-23350-2020) the Madhya Pradesh High Court, in granting bail to the
accused under Section 439 of the Code of Criminal Procedure, 1973 (CrPC),
stipulated many conditions, one of which was challenged by the Petitioner
Aparna Bhat (an advocate) and eight other lawyers. In the case in question, the
hon’ble Supreme Court determined that the condition was arbitrary and,
therefore, invalidated it. It also laid down a number of guidelines for the
Courts to follow while granting bail in sexual offences.
In an unprecedented order, the Apex
court discussed elaborately about the trauma of survivors of sexual offences,
and how the courts have to be sensitive while also being unprejudiced in
dealing with such cases. It also laid a list of gender stereotypes which should
be avoided in judicial orders.
FACTS
The facts of the case can be
summarized as:
1. As per the prosecution story in
Vikram v. State of M.P, on April 20, 2020, at around 2.30 a.m, the accused as a
neighbour had entered the house of the complainant and caught hold of her hand
attempting to outrage her modesty.
2. For the offences punishable under
Sections 452, 354A, 323 and 506 of the Indian Penal Code 1860 (hereinafter
referred to as the ‘IPC’), Crime number 133/2020 was subsequently reported at
Police station, Bhatpachlana, District – Ujjain.
3. The accused submitted a request for
anticipatory bail under Section 439 of the Code of Criminal Procedure, 1973.
The following condition was placed by the High Court while granting bail
to the applicant and was challenged in the Special Leave Petition (SLP):
On August 3, 2020, at 11:00 a.m., the
applicant and his wife will go to Sarda Bai's home with a basket of sweets and
a Rakhi thread or band. They will ask Sarda Bai to tie the band to him while
promising to protect her to the best of his ability in the future. As part of a
customary ceremony that is typically performed by brothers to sisters on such
occasions, he will also give the complainant Rs. 11,000 and ask for her
blessing. The applicant must also give Vishal, the complainant's child, Rs.
5,000 to buy him clothes and candy. Photographs and receipts for payments given
to the complainant and her son must be obtained by the applicant, who must then
file them with the registry through the counsel. The aforementioned amount
deposit is merely for the enlargement of the applicant on bail and will have no
bearing on the ongoing trial.
ISSUES
1. The major issue was how are 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 , 1973 to be construed? What kind of conditions can the courts impose
while granting bail to an accused under the aforementioned provisions?
2. Another issue in the case was whether
bail conditions can mandate acts such as ‘Rakhi tying’, requiring
tendering of apology, rendering community service or presenting a gift to the
survivor or even promising to marry her, as the case may be.
3. Further the court also addressed the
remarks made by various Trial Courts and High Courts in a plethora of cases, on
the survivor’s conduct in rape and sexual assault cases.
THE CONTENTIONS OF THE
APPELLANTS:
1. The appellants claimed that the words "in the interest
of justice," "such other conditions court considers necessary,"
and "as it may think fit", which can be found in the plain text of
Sections 437(3)(c) and 438(2)(iv) of the CrPC, give the courts discretion to
impose additional conditions that may be necessary given the facts of a
particular case. However, those conditions must be consistent with other
conditions in the provisions, the purpose of granting bail, and no other
consideration.
2. The appellants also emphasized that the impugned decision
placed a requirement on the applicant's receipt of bail that he or she visit
the complainant's home. The appellants argued that this was unacceptable and
that no condition or observation should be set that would allow the accused to
interact with the survivor and her family.
CONTENTIONS
OF THE INTERVENORS
1. A request in favour of the appeal was
also preferred by several intervenors. The Intervenors' counsel claimed that by
employing the wording "any condition," in sections 437(2)
and 438 (CrPC) the power to impose conditions were conveyed in extremely broad
terms. Recently, in granting bail under these sections, High Courts have begun
to impose extraneous stipulations. The intervenors have attached about
twenty-three orders in which these bail requirements were imposed.
2. The intervenors further argued that
the court cannot take the role of social reformer or charity fund-raiser when
assessing a bail application and cannot impose conditions that have no
connection to the offence or relation to the purpose of the bail provisions.
SUBMISSIONS BY THE
ATTORNEY GENERAL
1. The Court had issued notice to the
Attorney General in this matter, who also made his submissions in this matter.
The learned Attorney General submitted a lengthy memorandum outlining the
procedures that should be taken to sensitize all parties, particularly the
courts, while addressing crimes against women. He also submitted a list of
additional considerations that should be kept in mind while dealing with crimes
against women.
2. On gender equality and gender
sensitivity, the Attorney General emphasized that for gender justice to be
achieved, judicial officers, judges, and members of the bar must be made aware
of gender stereotypes that impede justice.
PREVIOUS RULINGS
While deciding the petition, the SC
referred to the following precedents in the matter :
1.
In Kunal Kumar Tiwari v. State of Bihar[1], the Supreme court while dealing
with Section 437(3)(c), Cr. PC (general conditions of bail) observed as
follows:
“9. There is no dispute that Sub-clause (c) of Section
437(3) allows Courts to impose such conditions in the interest of justice. We
are aware that palpably such wordings are capable of accepting broader meaning.
But such conditions cannot be arbitrary, fanciful or extend beyond the ends of
the provision. The phrase 'interest of justice' as used under the Sub-clause
(c) of Section 437(3) means "good administration of justice" or
"advancing the trial process" and inclusion of broader meaning should
be shunned because of purposive interpretation.”
2.
In Sumit Mehta v. State (NCT of Delhi)[2]
it was held While granting relief in accordance with Section 438(1), suitable
conditions may be imposed pursuant to Section 438(2) to ensure that an
investigation continues uninterrupted. The purpose of imposing such constraints
should be to prevent the individual from interfering with the investigation.
Thus, any condition that has no bearing on the fairness or appropriateness of
the investigation or trial cannot be permitted under the law. Therefore, the
Court's discretion in imposing conditions must be exercised with the utmost
caution.
3.
In Ramphal V. State of Haryana[3] The
court acknowledged the compromise between the survivor and the accused, but
determined that such an agreement is irrelevant when resolving rape and sexual
assault cases.
JUDGMENT
a)
On Conditions of Bail
While
referring to its previous judgment viz Kunal Kumar Tiwari V. state of Bihar the
Court held that - In the interest of justice, Subclause (c) of Section 437(3) clearly
permits courts to impose such limitations. Such phrasing is obviously capable
of accommodating a broader meaning. Nonetheless, these criteria cannot be
arbitrary, imaginative, or stretch beyond the provisions' limits.
b)
On Compromise in Sexual
offences
The court also recognized the
appellants' argument that in cases of sexual offences, the concept of
compromise, notably in the form of marriage between the accused and the
prosecutrix, shall not be considered, as any such attempt would be an affront
to the dignity of the woman.
It said that utilizing Rakhi tying
as a bail condition transforms a molester into a brother by court order. This
is completely unethical and has the consequence of diluting and undermining the
sexual harassment offence. The act committed against the survivor constitutes a
criminal offence and cannot be repaired by an apology, community service, tying
a Rakhi or offering a gift to the survivor, or even vowing to marry her,
depending on the circumstances.
The legislation criminalizes the
violation of a woman's modesty. By granting bail under such terms, the court
risks being accused of renegotiating and mediating justice between opposing
parties in a criminal case and reinforcing gender stereotypes.
c)
On remarks about
Victim’s/Survivor’s Conduct
The court ruled that the use of reasoning/language that
minimizes the offence and seeks to trivialize the survivor must be avoided in
all circumstances. It laid out a list of conduct, actions, or situations that
are to be deemed irrelevant, e.g., to say that the survivor had previously
consented to such or similar acts, or that she behaved promiscuously, or by her
actions or clothing, provoked the alleged action of the accused, that she
behaved in a manner unbecoming of chaste or "Indian" women, or that
she had provoked the situation by her behaviour, etc.
The court
also said these incidents are merely examples of an attitude that should never
be reflected in judicial verdicts or orders or deemed relevant when reaching a
judicial determination; they cannot serve as justifications for providing bail
or other similar relief.
d)
Directions
The
Supreme Court directed that:
·
Conditions
of bail should not dictate, compel, or allow contact between the accused and
the victim. These criteria should safeguard the complainant from additional
harassment by the accused;
·
If
the court has reason to believe that the victim is at risk of being harassed,
or if the victim expresses fear, after requesting police reports, the court
shall separately consider the nature of protection and issue an appropriate
order, in addition to directing the accused not to make contact with the
victim.
·
In
all instances where bail is granted, the complainant must be notified
immediately and given a copy of the bail order within two days.
·
Bail
conditions and orders shall closely adhere to the provisions of the Cr. PC and
avoid expressing stereotypical or patriarchal conceptions about women and their
status in society. In other words, consideration of the prosecutrix's attire,
conduct, or past "conduct" or "morals" should not be
included in the verdict granting bail.
·
While
adjudicating cases involving gender-related crimes, the courts 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 other form of
compromise, as it is beyond their powers and jurisdiction;
·
Judges
should demonstrate sensitivity at all times, ensuring that the prosecutrix is
not traumatized by the proceedings or anything said during the arguments; and
·
Judges
should not use any words, spoken or written, that would undermine or shake the
survivor's confidence in the court's fairness or impartiality.
e) On Sensitization of Legal Community
The court mandated that a module on gender sensitization be
included as part of the fundamental training of every judge. This curriculum
must try to teach judges how to be more sympathetic while hearing and deciding
sexual assault cases, as well as eliminate persistent social bias, particularly
misogyny.
The court requested the
National Judicial Academy to quickly develop the necessary inputs that
must be incorporated into the training of young judges and the continuing
education of judges with regard to gender sensitization, including adequate
awareness programmes regarding stereotyping and unconscious biases that can
infiltrate judicial reasoning.
f)
Final order
Bail
conditions in the impugned judgment set aside and expunged from the record.
IMPORTANCE
The decision in the Aparna Bhat case
recognizes the entrenched paternalism and misogyny that are sometimes reflected
in judicial orders. In addition, it takes into account offensive remarks and
gender stereotyping made by judges in situations involving sexual offences. It
discusses and emphasizes in length that such remarks are completely undesirable
and have the potential to inflict great harm to the prosecutrix and society.
In addition, the judgement
established certain requirements for judicial orders. The ruling was the first
of its kind to address gender sensitivity in the legal community, including the
bar and the bench. The case discussed elaborately, the greater role of judges
in society. At all levels, judges play a crucial role as educators and thought
leaders. It is their responsibility to remain unbiased at all times, especially
in cases involving crimes against women.
if they falter, they endanger justice and inflict great cruelty on the
hopelessness of survivors.
The judgment will prove to be a
torchbearer for courts to follow in the future when dealing with victims of
sexual assault. By discussing the faults of a patriarchal culture, it has set
an example for its enormous audience. This will go down in history as a significant
step towards the emancipation of women.
Article Information
CASE COMMENT: APARNA BHAT & ORS. VERSUS STATE OF MADHYA PRADESH & ANR (2021) SCC 230
Authors: Rachana Panthari
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/03/27
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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