9 Women Lawyers Move SC Challenging MP HC's Bail Condition Asking Man Accused Of Sexual Assault To Get Rakhi Tied By Victim [Read Petition]
Supreme Court advocate Aparna Bhat and eight other women lawyers have challenged (before the Apex Court) one of the Bail Conditions in the Bail Order dated July 30 passed by Madhya Pradesh High Court, wherein the Court had imposed a bail condition upon the person (accused of outraging the modesty of his neighbour) to request the victim to tie the rakhi around his wrist.The Plea has been...
Supreme Court advocate Aparna Bhat and eight other women lawyers have challenged (before the Apex Court) one of the Bail Conditions in the Bail Order dated July 30 passed by Madhya Pradesh High Court, wherein the Court had imposed a bail condition upon the person (accused of outraging the modesty of his neighbour) to request the victim to tie the rakhi around his wrist.
The Bail condition which has been challenged in the Petition stated,
Key averments of the Plea
· The plea states that the High Court erred in imposing a condition that defeated the very purpose of granting bail by directing the alleged perpetrator to establish contact with the victim and that the HC failed to appreciate that in most cases of sexual violence, the prosecutrix turns hostile and in many of these cases it is because she gets intimidated and/or induced by the family of the accused.
· The Petition avers that the High Court ought to have been cognizant and sensitive to the fact that in a case involving a sexual offence having been committed against a woman; it is immeasurably difficult for the survivor to lodge an FIR and pursue a criminal case against the accused at the threshold.
· The plea further states,
"In the context of Rakshabandhan being a festival of guardianship between brothers and sisters, the said bail condition amounts to the gross trivialization of the trauma suffered by the Complainant in the present case." (emphasis supplied)
· Importantly, the plea also states,
"That the present case is of particular concern since it has taken years to undo the damaging approach followed by Courts whereby cases involving sexual offences committed against women are attempted to be compromised by way of marriage or mediation between the accused and the survivor." (emphasis supplied)
Application filed seeking directions of the Supreme Court
Further, the application states that the violence against women and more particularly sexual violence against women, are extremely serious offences and needed to be treated stringently by the Courts.
In this context, the Applications lists out those instances where observations have been made in cases relating to offences against women including cases under the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act") which are totally extraneous and stand to trivialise the trauma suffered by a woman which violates the dignity of a woman as protected by Article 21.
[NOTE: The details of such cases along with the observations of different Courts could be found in the Application filed by the Petitioners which has been attached below.]
In many of these cases, the Application states, while granting bail to the accused in rape cases and cases under the POCSO Act, the courts, by relying upon the factum of marriage having been arranged/solemnized between the victim and accused, have made extraneous observations.
It has been averred in the application that in many cases these conditions are actually like compromise, which dilute or completely obliterate the heinousness of the crime against the dignity of a woman.
These observations, the Application opines, by no stretch of the imagination, can be conditions under Section 439 of the Code of Criminal Procedure and are in fact extraneous to the parameters for grant of bail. These observations also have an impact on the trial and in many cases on account of such observations, the accused get the benefit of acquittal or imposition of a lesser sentence.
Subsequently, the Application states that the Apex Court can issue directions within its vast jurisdiction and that it is a fit case for issuance of such directions, as may be required, by this Hon'ble Court under Article 142 of the Constitution of India to all the High Courts and Trial Courts to refrain them from passing observations and imposing conditions in rape and sexual assault cases that trivialize the trauma undergone by survivors and which violate their human dignity under Art.21.
Lastly, the prayer of the Application states,
"Direct all the High Courts and Trial Courts to refrain from passing observations and imposing conditions in rape and sexual assault cases, at any stage during the judicial proceedings, which trivializes the trauma undergone by survivors, adversely affects their dignity besides being against the criminal justice system"
The matter will be heard on Friday (October 16) by the Supreme Court.
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[Read Petition]