An innocent accused and a culpable victim? Critique of the Kerala court order granting anticipatory bail to Civic Chandran

A sessions court in Kozhikode, Kerala on August 19 granted anticipatory bail to writer Civic Chandran in a case registered against him under Section 354A(2) (sexual harassment), Section 341 (wrongful restraint) and Section 354 (assault with criminal force to woman with intent to outrage her modesty) of the Indian Penal Code.

The said anticipatory bail order made headlines and received substantial criticism for the various observations it made about the victim. Not only does it carry sexist stereotypes, the order is also based on poor legal reasoning and flies in the face of settled law.

Delay in filing of an FIR does not vitiate the prosecution case

In its order, the Sessions Court observes that while the incident took place on February 8, 2020, the FIR came to be filed only on July 29, 2022. Further, the present FIR only came to be filed after another case came to be registered at the same police station. The Sessions Court remarks that that the complainant is an “educated lady who is fully aware of the consequences of sexual assault” and that no explanation has been forthcoming from her end as to why she was reluctant to file the complaint.

It is established law that delay in filing a complaint would not be fatal to the prosecution case. [See State of Chhattisgarh v. Derha] Further, it is common knowledge that victims of sexual crimes often take time to recover from the trauma they have experienced before they can muster the strength to initiate legal proceedings. It is often the case that a victim finds the courage to come forward only after they find out that their perpetrator has subjected others to similar offences. Therefore, the Sessions Court granting anticipatory bail on account of delay is erroneous and insensitive, to say the least.

Furthermore, the literacy of the victim is not an indicator of the pace at which she processes the trauma induced upon her to muster the courage to initiate legal action. Not only are these comments unnecessary, they also discourage victims from taking legal recourse against their perpetrators.

Court conducted a mini-trial at the stage of bail

While considering a anticipatory bail application, a court must take into account the material on record and form a prima facie opinion as to whether there is a case against the accused. It cannot take into consideration any material placed before it by an accused which does not form a part of the case diary/investigation record, nor can it examine the evidence on record in detail, as doing so would turn the bail hearing into a mini-trial. [See Sangitaben Shaileshbhai Datanta v. State of Gujarat]

In the present case, the Court has proceeded to examine the allegations of the complainant on merits instead of considering them prima facie. The Court has also looked into material placed before it by the accused. By doing so, the Court has conducted a mini trial at the anticipatory bail stage and has thus prejudiced the investigation.

Court has taken irrelevant factors into consideration

Generally, while considering an anticipatory bail plea, a court has to consider:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offense;

(ii) nature and gravity of the charge;

(iii) severity of the punishment in the event of conviction;

(iv) danger of accused absconding or fleeing if released on bail;

(v) character, behaviour, means, position, and standing of the accused;

(vi) likelihood of the offense being repeated;

(vii) reasonable apprehension of the witnesses being tampered with;

(viii) if the accusations made in the FIR are made to harass or humiliate the applicant by having him arrested; 

(ix) if any recovery needs to be made and/or custodial interrogation is necessary for the same;

(x) danger, of course, of justice, being thwarted by grant of bail.

[See Prahlad Singh Bhati v. NCT, Delhi, Gurcharan Singh v. State (Delhi Administration) and Sushila Aggarwal v. State (NCT of Delhi)]

In the present case, the Kozhikode Sessions Court has not taken even one of these factors into consideration while granting anticipatory bail to the accused. Rather, it has taken completely irrelevant factors into consideration. These include the fact that the accused is 74 years old; his daughter is a Deputy Collector; his son is an Assistant Professor in an Engineering College; he has a good reputation in society; he has been granted bail in an earlier unrelated case under the same charges; the age gap between the accused and the victim; and most outrageously, photographs of the victim which were procured from her personal social media account and placed before the Court by the counsel for the accused.

In fact, if the accusations in the complaint - that the accused took the complainant to a secluded spot, forced her to sit on his lap, and then pressed her breasts and outraged her modesty - are considered, there is a prima facie case against the accused and the same should have debarred him from obtaining anticipatory bail. Further, that the accused has obtained bail in an unrelated case under similar charges is an irrelevant factor when grant of anticipatory bail is to be decided.

What is equally absurd is the Court’s observation that even if it was assumed that the allegation was true, it would have been impossible for a 74-year-old disabled man to sexually assault the complainant. The age and the disability of the accused have no nexus to the accusations whatsoever.

Surprisingly, an unhealthy amount of reliance has been placed on these factors, whilst ignoring material considerations.

The order reeks of sexism and reinforces misogynistic stereotypes

While relying on photographs extracted from the personal social media account of the victim, the Sessions Court observes that the victim was dressed in a manner which was “sexually provocative” and thus, prima facie, an offence under Section 354A IPC would not stand against the accused. To put it simply, this is the crudest form of victim blaming and also amounts to character assassination of the victim.

Courts, while deciding cases arising out of sexual offences and while making observations therein, must safeguard the dignity of the victim, even assuming that her allegations are misconceived or ill-founded.

However, this is not the first time such an order has been passed. The fight for justice in cases of gender-based violence can be summarized in one line: we go one step forward and two steps back. Courts have laid down that it is unbecoming of an Indian woman to sleep after being “ravished”; the victim being habituated to sexual intercourse, so much so she had cut her pubic hair; a feeble 'no' means a yes; the prosecutrix was supposed to attack the appellant like a wild animal, but she did not even resist; the resistance has to be forceful; it is for the woman to maintain her purity, chastity and virtues; victim had a “promiscuous attitude and a voyeuristic mind” etc. These rulings indicate that there is an inherent bias with which the judiciary decides culpability in sexual offences. The present judgment runs along the same jurisprudential lines.

Further, the term “provocative dressing” is vague and subjective and therefore, its meaning is predicated upon the wisdom of the judge. The chances of her getting assaulted do not double up because she dressed a certain way. These prescriptive standards not only undermine the judicial process, but seem to subvert it, thereby putting the future of “autonomy” in jeopardy.

Also, for the Court to accept such a submission and pass crude remarks is a blatant example of “judicial stereotyping.” Coming down heavily on judicial stereotyping, the Supreme Court of India in Aparna Bhat v. State of MP had observed that the use of reasoning/language which diminishes the offence and tends to trivialize the survivor should be avoided under all circumstances and that irrelevant conduct, actions, and situations should not be taken into account. The Court provided an illustrative list of irrelevant considerations, including: to say that the survivor had in the past consented to such or similar acts or that she behaved promiscuously, or by her acts 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 called upon the situation by her behaviour, etc.

Conclusion

The order is not only based on an erroneous application of the law, but is also borderline incoherent. The fact that gender stereotypes continue to overrun judicial precedents is concerning. The Kozhikode Session Court’s order has once again highlighted the need for gender sensitization training for judicial officers as well as for advocates. It is a classic case where the victim has been put to trial to prove that her allegations stand. Gender justice can only be achieved when the system designed to deliver it is sensitized about its intricacies. The present order, if challenged, ought to be set aside by a declaratory judgment reiterating the law on sexual harassment.

Racheeta Chawla is a lawyer based out of New Delhi. Hamza Lakdawala is a lawyer based out of Mumbai. He tweets @hamzamlakdawala.