In an order grounded on conservative values, the Punjab and Haryana High Court recently released three rape accused on bail, after devoting fair effort into patronising and shaming the victim.

The order passed by Justices Mahesh Grover (pictured left) and Raj Shekhar Attri (pictured right) is intended to “balance the concerns of the victim, demands of society and law and the element of reformatory and rehabilitative justice.”

The three accused were former students in Jindal Global Law School, while the prosecutrix was part of the Management School at OP Jindal University. It is the case of the prosecutrix that all three accused had forced her to comply with their sexual demands over a two year period, before she registered a complaint with the police.

The first accused, Hardik Sikri had coaxed the prosecutrix into sending nude pictures to him, after he had done the same. These pictures served as the basis for blackmailing the prosecutrix into submitting herself for the sexual gratification of Sikri throughout this period. The other accused, Karan Chhabra and Vikas Garg,  friends of Sikri, were accused of having committed similar acts on a couple of occasions.

Among other accusations, the prosecutrix contended that she had been made to have sex against her will, cut classes to comply with demands made by the accused and had been threatened with publication of the nude photographs if she did not abide by the wishes of the accused. The testimony of the prosecutrix before the Magistrate, as noted by the High Court, appeared to be free from any pressure.

On the issue of blackmail, the Court observed that if the accusations are true, they need the strongest condemnation with equal forceful retribution that the law mandates.

But prior to this, setting the dominant tone for the orders that followed, the Court expressed that the testimony of the prosecutrix illustrated “the immature but nefarious world of youngsters unable to comprehend the worth of a relationship based on respect and understanding“.

It is of course debatable as to whether this statement would find equal relevance if the parties concerned where middle-aged, or whether the law recognises the need for such observations in deciding a bail application.

The observation that took precedence and thereafter became a running theme for the order was,

“The entire crass sequence actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world.”

The court went on to state that apart from the gravity of the situation, a balance should also be struck between retributory, reformative and rehabilitative justice. To this end, the court ultimately thought it fit to grant bail to the accused who were convicted by the trial court. The High Court observed,

“It would be a travesty if these young minds are confined to jail for an inordinate long period which would deprive them of their education, opportunity to redeem themselves and be a part of the society as normal beings. Long incarceration of this stage when the appeal is not likely to mature for some time is likely to result in an irreparable damage…”

These observations may have been slightly more palatable, had the Court not made it a point to imply that the alleged offences may be viewed less seriously given that,

“The testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters and these factors would therefore, offer a compelling reasons to consider the prayer for suspension of sentence favourably particularly when the abused themselves are young and the narrative does not throw up gut wrenching violence, that normally precede or accompany such incidents.”

The curious conclusion that can be derived is that the Court is still undecided as to which assumes priority – a legally recognised and punishable offence, or the denigration of moral values, which, fortunately or unfortunately, has not been recognised as a specific offence. Not just yet.

The following observation demonstrates this dilemma:

“We are conscious of the fact that allegations of the victim regarding her being threatened into submission and blackmail lends sufficient diabolism to the offence, but a careful examination of her statement again offers an alternative conclusion of misadventure stemming from a promiscuous attitude and a voyeurisitc mind.

She states that ‘he (Hardik) then sent his own nude pictures and coaxed me into sending my own nude pictures’…The perverse streak in both is also revealed from her admission that a sex toy was suggested by Hardik and her acceptance of the same.”

For context, the following extract which forms part of the testimony of the prosecutrix, as noted in the order, may be referred to:

“He then forced me to purchase a sex toy against my will. I kept pleading that I do not want as it is a very shameful thing to have but he kept insisting as he wanted me to use it, so he could gratify himself via skype on the days when he could not force himself physically upon me. On 26.1.2015, I acceded to his demand of buying the sex toy under pressure of my photographs getting exposed in the entire university.”

The Court appears to have also found another novel logical reason for granting bail to persons pending appeal, although it is unclear as to whether this was a general observation or case-specific statement:

“We are also of the opinion that the pendency of the appeal, ironically may work as a guarantee to prevent a repeat resulting from the fear of incarceration in the event of failure of the appeal.”

Bail was granted on the condition that the accused should not leave the country, contact the victim in any manner and further that they should undergo psychiatric counselling “until they are free of their voyeuristic tendencies”. Reports made regarding the progress made by the accused in counselling were directed to be furnished to the Court.

Further the Court also directed that the victim be given a compensation sum of Rs 10 lakhs, to be shared equally by all the accused.

Finally, the Court also specifically noted,

“Nothing above should be construed to be an expression on the merits of the case.”

Perhaps this means that victim shaming is only allowed up until the matter of bail is decided.

Read order below