How was rape case settled without checking whether illiterate victim understood settlement? Supreme Court

The Supreme Court on Tuesday set aside a Gujarat High Court order that allowed the quashing of a rape case based on an 'amicable settlement' between the parties [XYZ v State of Gujarat and anr].

A Bench of Justices Abhay S Oka and Augustine George Masih remanded the matter back to the High Court after noting that there was nothing on record to confirm that the rape survivor was made aware of the contents of the settlement deed.

"What is this? How can High Court allow this without even calling victim? No where it is stated that the lady was told about the contents. Lady is illiterate and contents were not even said to be explained to her. Somebody has to do it. Lady puts her thumb impression. There has to be endorsement by someone else that she was explained the contents," Justice Oka remarked.

The High Court's verdict cannot be sustained without such verification, the top court opined.

The Court also observed that the ideal course of action in such cases is to have an endorsement on affidavit by a third party that the settlement was explained to the survivor.

"Normally such an affidavit is moved by an illiterate person putting her thumb impression; there has to be an endorsement by a third person stating that content of affidavit is explained to victim. The High Court should have directed the lady victim to be personally present in court to verify whether she was informed about contents of the affidavit," its order stated.

The High Court was directed to get the settlement verified in such terms, and then take a fresh call on whether the rape case should be quashed.

"As the High Court has passed impugned Judgment without verifying the settlement, the said judgment cannot be sustained. we therefore remand the matter back to High Court with a direction to appellant-victim to appear before the court. ... We accordingly set aside the impugned Judgment and remand the matter back to High Court," the top court said.

The Supreme Court was hearing an appeal challenging a September 2023 Gujarat High Court ruling passed by Justice Samir J Dave, by which the High Court had taken note of an affidavit filed on behalf of the rape survivor in which it was "categorically stated that the dispute is amicably resolved."

In view of this development, the High Court observed that it would be futile to continue the criminal trial and, therefore, quashed the case.

During yesterday's hearing before the Supreme Court, Senior Advocate Indira Jaising appeared for the appellant and highlighted that the affidavit indicating a settlement was in Gujarati language, a language unknown to the rape survivor.

She pointed out that the survivor is an illiterate adivasi woman, who never consented to so-called 'amicable settlement'.

"How can the High Court endorse this and whether this court will endorse such practice in Gujarat? I want to know who is the lawyer for her. Please call for records. This affidavit is not read even to her," Jaising argued.

Another counsel suggested that an enquiry could be conducted to settle suspicions of whether the settlement was genuine.

"I enquired from the lady's advocate that whether she had signed and I was informed that she has done that with the notary. Enquiry is required here and when enquiry would be done, everything will come out, whether she went to notary office or not and who was her advocate," the counsel said.

The Supreme Court, in turn, agreed that the High Court could inquire into the earlier case 'settlement.'

"The High Court would be well within the power to order enquiry about the manner in which affidavit have been executed and on the question of how the thumb impression was taken of the appellant without explaining her the contents of affidavit ... The High Court is well within the power to order enquiry by a judicial officer, if required," it added in the order passed yesterday.

Senior Advocate Jaising appeared along with Advocate Paras Nath Singh for the appellant, the first informant/complainant.

Senior Advocate Rakesh Khanna with Advocate Savita Singh appeared for the accused.

Senior Advocate Ruchi Kohli with Advocate Swati Ghildiyal appeared for the State of Gujarat.