Criminal appeal no. 329 of 2021 @special leave petition (Crl.) no. 2531 of 2021 arising out of S.L.P. (Crl.) Diary No. 20318 of 20201
Bench: Hon’ble Justice Ravindra Bhat and Hon’ble Justice A M Khanwilkar - Judgement dated: 18.03.2021

facts:

• The plea was filed by Advocate Aparna Bhat and eight other advocates against the impunged order passed by Madhya Pradesh High Court on July 30, where the accused of sexual assault was asked to visit the victim’s home on the occasion of Raksha Bandhan along with Rakhi and get in tied by her as a condition of bail
• The accused who is a neighbour of the complainant Sarda Bai, entered her house on 20.04.2020 and attempted to harass her sexually followed by which an FIR was filed by the police for the offences punishable under sections 452, 354A, 323 and 506 of the Indian Penal Code (hereafter referred to as IPC). The case was investigated and a charge sheet was filed
• The accused filed an application seeking anticipatory bail under section 438 of Code of Criminal Procedure (hereafter referred to as Cr.P.C.)
• The High Court of Madhya Pradesh while granting bail imposed the conditions on the accused that he along with his wife shall visit Sarda Bai’s house on 3rd August, 2020 on the occasion of Raksha Bandhan with a box of sweets and request her to tie the Rakhi to him with the promise that he will protect her in future with all his best ability. The accused was also asked to tender an amount of Rs. 11,000 as a token of gift given by brothers to their sisters as a part of the customary rituals f Raksha Bandhan which has been challenged by the petitioners before the Hon’ble Supreme Court.

issue:

• Can a compromise be made between the accused and the victim in such cases
• Are such orders given by the courts acceptable and if yes what will be the effect of such judgments on society?
• Do such orders amount to conduct of trial in an unfair manner?
• Can the accused be permitted to meet the survivor or any of the members of her family?
• Most importantly what should be the guidelines to be taken into consideration by the courts while granting bails and anticipatory bails?

Arguments:
Petitioners

• The petitioners had argued to set aside the judgment of High Court
   
• The petitioners had submitted that Section 437 (3)(c) and Section 438(2)(iv) of the CrPC empowers the courts to impose any condition as it may deem fit ‘in the interest of public’ but the conditions required in any case has to be in accordance with other conditions of the provisions.
   
• Petitioners took reference of State of M.P v. Madanlal 2, and urge that in cases of sexual offences, the idea of compromise, especially in the form of marriage between the accused and the prosecutrix is abhorrent, and should not be considered a judicial remedy, as it would be antithetical to the woman’s honour and dignity.
  
  In Ramphal v. State of Haryana 3 the court had found that compromise is of no relevance when deciding on cases of rape and sexual assault.
   
• The petitioner also requested to the court that no such judgement or order should be passed by the court which can affect the dignity of women and conduct of trial in fair and unbiased manner and citied various cases where the apex court has denied the idea of compromise on the ground that it will be antithetical to the woman's honour and dignity and that it disparages and downgrades and otherwise heinous crime thereby indicating that such offences are remediable by the way of compromises

Counsel for Intervenors

• The counsel for intervenors had submitted that the u/s 437(2) and 438 the power of court to impose. Conditions have a wide array under “any manner” and citied a number of judgements when courts have put forward certain conditions for granting bails.

Judgement:
The order passed by Madhya Pradesh High Court was quashed by hon’ble Supreme Court. Hon’ble judges emphasized the Courts to stay away from adopting soft approach or any kind of liberal approach that would be in the realm of a sanctuary of errors.

Various guidelines had been framed and directions were given by the court:

• Under no circumstances should the contact between accused and complainant be permitted as a condition for bail and in case, bail is granted, the complainant should immediately be regarding the same along with proving a copy of the bail order to her within two days
• Bail conditions must strictly follow the provisions of Cr.P.C. and order should avoid reflecting patriarchal notions against the women
• Any kind of suggestion for compromise to the accused and victim such as to get married or to mandate mediation should not be entertained as this is outside the jurisdictions of the courts
  Apart from all the above-stated directions the Court also set guidelines by highlighting the importance of gender sanitization at all levels of judiciary, as submitted by Attorney General in his arguments
   
• The court has mandated a module as a part of fundamental training of every judge to ensure the sensitivity of judges while hearing cases related to sexual offence and to eliminate entrenched social bias and misogyny
• National Judicial Academy has also been directed to include gender sanitization as a part of training of young judges as soon as possible
• Likewise, Bar Council of India was directed to include gender sanitization in the curriculum of LL.B. and as a compulsory topic in All India Bar Examination syllabus.

Observations:
The bench clarified that in rape and sexual assault cases, no compromise can be made or even can be thought of under any circumstance as it would be against her honour. Courts and other law enforcement agencies are supposed to be neutral agencies and are entrusted to ensure fair conduct of the trial by maintaining impartiality and neutrality. And such approaches in rape and sexual assault cases will shake the confidence of rape survivor in the impartiality of the courts.

Apex court also highlighted the condition of women and the attribute of society towards them is not good and they suffer a lot. They are already facing various challenges in their lives for being a woman in this society.

Judgements set precedents that is followed by community at large at various stages and such:
Orders like tying Rakhi on the wrist of accused transforms the molesters in brothers by judicial mandate which has effect of diluting and eroding the offence of sexual harassments. Therefore, the use of reasoning/language which diminishes the offence and tends to trivialize the survivor is especially to be avoided under all circumstances.

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”

Conclusion
No doubt that judges play the most vital role as the teacher, as the protector and as the guardian and whatever they say becomes the precedents that is then followed by lower courts in their rulings and hence it becomes very important for the judges to take highest degree of care while making any statement which affects the very basis of judiciary and faith of people. In cases related to the body of women and especially in sexual offences cases, even small error either in the form of judgement or any statement made by courts may lead to serious offence against the survivors.

There have been various instances of gender-related cases in recent times when courts have opined the victim to make compromise by allowing the accused to marry her or as in present case by ordering him to get Rakhi tied on his wrist by the victim or by making any other compromise as the court may direct.

Such interpretations are catastrophic in nature and show the attribute of judges towards the women but as it is said Judiciary is a self-healing process, present judgement by Supreme Court proved the statement to be true. Framing the rules for gender sanitization and adding it to the curriculum of LLB will help the lawyers to inculcate the unbiased and neutral attribute towards the women which will surely help the victims in fair conduct of trial without any fear on their part.

References:

1. https://indiankanoon.org/doc/13024806/
2. (2015) 7 SCC 681
3. C.W.P. No.2625 of 2012