APARNA BHAT & ORS. Vs STATE OF MADHYA PRADESH & ANR.

CRIMINAL APPEAL NO. 329 OF 2021

Decided on 18-01-2021

Access the judgement here1

Bench: Justice Ravindra Bhat, Justice A M Khanwilkar

Advocate (Appellant) –Aparna Bhat

Respondent – Mr. K K Venugopal, Ld. A.G. Mr. B V Balaram Das, Mr. Vinam
Gupta (Counsel for Intervenors)

KEYWORDS: Sexual assault, Sexual violence, POSCO, Women, Gender stereotype,

Court bias, Section 437 (CrPc), Section 438 (CrPc), Bail, Patriarchy, Gender Equality,
Justice.

FACTS

A plea was filed by Advocate Aparna Bhat and eight other advocates to dispute an
order passed by the Madhya Pradesh High court, where the accused who was
accused of sexual assault was granted bail if he visits the victim’s home during
Raksha Bandhan. The accused was a neighbour of the complainant Sarda Bai, who
entered her house on 20.04.2020 at 2:30 am 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 accused then filed an application seeking anticipatory bail under section
438 of the Code of Criminal Procedure (hereafter referred to as CrPc.). The High
Court of Madhya Pradesh while granting his bail imposed the conditions on the
accused that he along with his wife shall visit Sarda Bai’s house on 3rd August 2020

1
https://main.sci.gov.in/supremecourt/2020/20318/20318_2020_35_1501_27140_Judgement_18-
Mar-2021.pdf.
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. The accused
was also made to pay Rs. 5,000/- to the son of the complainant Vishal for purchase
of clothes and sweets. This condition did not seem like an appropriate judgment
given by a High Court leading to the appellant and other public-spirited individuals
to challenge it in the Supreme Court.

ARGUMENTS

PETITIONER

The petitioners firstly argued that there were many cases of rape and sexual
harassment (especially those under the POSCO Act) in which the courts have given
shocking remarks on the character of the prosecutrix. The case of Vikas Garg v. the
State of Haryana,2 was cited by the appellant as the judge, in that case, granted bail to
the assailment due to the victim being known for her “casual relationships”,
“promiscuous attitude”, and “voyeuristic mind.” The case of Rakesh B. v. State of
Karnataka,3 was also cited as the judges, in that case, questioned the victim's habits as
to them it was not how “Indian women” acted.

Secondly, the appellant stated that the marriage between the victim and the abuser
was also seen as a remedy to rape cases even in the case of minors as cited in the case
of Samuvel v. Inspector of Police,4 and Sopikul Sk. @ Safikul Islam v. State.5 This was also
stated with the fact the victim and their family members should not be forced to
interact with the assailant/abuser.

Finally, the appellant concluded by stating that such remarks against victims should
be seen as unacceptable as it has the potential to cause grave harm to the prosecutrix
and the society at large, judicial orders must conform to certain judicial standards,

2
Crl.M.No.26930 of 2017.
3
Crl. P. No. 2427/2020.
4
Crl. O.P. No. 1881/2015.
5
CRM No. 2961/2020.
and necessary steps needed to be taken to ensure that such cases do not happen in
the future.

COUNSEL OF INTERVENORS

The counsel for intervenors agreed with the appellants argument, however they
submitted that under sections 437(2) and 438, the power to impose conditions have
been expressed in very wide terms by using the phrase “any condition.” This led to
the courts misusing the section by granting bail under irrelevant conditions. They
reiterated that the guidelines for these sections was clearly laid down by the
Supreme Court in the case of Munish Bhasin v. State,6 and reiterated in Parvez Noordin
Lokhandwalla v. State of Maharashtra.7 The Intervenors further submit that the accused
cannot be put under conditions like compulsive community service while they are
yet to be be adjudicated by the Court as it is violative of the right to equality and
personal liberty, including procedure established by law in the Indian Constitution.
The Intervenors also submit that the Court while deciding a bail application, cannot
assume the role of a social reformer or fund raiser for charities and impose
conditions which have no nexus with the offense or relevance with the object of the
bail provisions.

JUDGMENT AND OBSERVATION

The Hon’ble Supreme Court quashed the judgement that was passed in the case of
Vikram v. State of Madhya Pradesh,8 as its reasoning and language minimizes the crime
and makes it harder for the victim to attain justice. The Hon’ble Court also observed
that it is the duty of the court to be neutral and judge cases without bias. The tying of
the Rakhi to the perpetrator would only cause harm to the victim and was seen as
completely unacceptable as it dilutes and weakens the crime of sexual harassment to
something that can be solved by an apology or community service. The court ruled
that outraging a woman's modesty by presenting a gift to the survivor, or even
6
(2009) 4 SCC 45.
7
(2020) 10 SCC 77.
8
MCRC 23350/ 2020.
offering to marry her, is illegal under the law. The court further observed that
judges, public prosecutors should undergo gender sensitization as would help
eradicate harmful stereotypes from the justice system. It also declared that each High
Court should develop a module on judicial sensitivity to sexual offences, which
would be tested in the Judicial Service Exam. The bar was also told that similar
courses should be included in the LLB and AIBE curriculum.

In his judgement Hon’ble Justice Ravindra Bhat gave rules which all judges must
follow to not be biased against women or follow any stereotype in court, the rules
are as follows:

(a) 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;

(b) 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;

(c) In all cases where bail is granted, the complainant should immediately be
informed that the accused has been granted bail and copy of the bail order
made over to him/her within two days;

(d) Bail conditions and orders should avoid reflecting stereotypical or

patriarchalnotions 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;

(e) 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;
(f) 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

(g) 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.