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 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."When illiterate persons affirm such affidavits by putting their thumb impressions, usually, the affidavit must bear an endorsement that the contents of the affidavits were explained to the person affirming the same. After noticing the absence of such an endorsement, the High Court ought to have directed the appellant to personally remain present before the Court so that the High Court could have verified whether the appellant had put her thumb impressions on the affidavits after she was informed about the contents of the affidavit and after she had fully understood the 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 the impugned judgment and order without verifying whether there was a genuine settlement between the appellant and the second respondent, the impugned judgment and order cannot be sustained. We are, therefore, inclined to remand the case to the High Court with a direction to the appellant to remain present before the High Court on the date fixed by this Court. The High Court will allow the appellant to explain her position vis-a-vis the stand taken by the second respondent about the settlement," the top court said..It explained the necessity of High Courts having to satisfy itself of genuine settlements between the survivo and the accused. "Without the Court being satisfied with the existence of a genuine settlement, the petition for quashing cannot proceed further. If the Court is satisfied about the existence of a genuine settlement, the other question to be considered is whether in the facts of the case, the power of quashing deserves to be exercised."Even with a settlement affidavit being on record, in serious cases involving women and children, they must be be present in court to verify the same, it added. "In cases of serious offences and especially against women, it is always advisable to procure the presence of the victim either personally or through video conference so that the Court can properly examine whether there is a genuine settlement and that the victim has no subsisting grievance.".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', after hearing the survivor and letting her file an affidavit."The High Court would be well within its powers to order an inquiry to be held by a Judicial Officer about the manner in which the affidavits have been executed and on the question of whether the thumb impressions of the appellant were taken on the affidavits without explaining to her the contents of the affidavits ... the High Court can always order an inquiry to be held by a Judicial Officer on the question of whether there was a settlement between the appellant and the second respondent and whether the affidavits were affirmed after explaining the contents thereof to the appellant," 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.