CASE COMMENT

APARNA BHAT & ORS.

versus

STATE OF MADHYA PRADESH & ANR (2021)

[Criminal Appeal No. 329/2021]

INTRODUCTION
Gender violence is most often unseen and is shrouded in a culture of silence. The
causes and factors of violence against women include entrenched unequal power
equations between men and women that foster violence and its acceptability,
aggravated by cultural and social norms, economic dependence, poverty, and alcohol
consumption, etc. But as Joanne Conaghan pertinently points out that “removing the
doctrinal debris of a legally instituted gendered hierarchical order does not necessarily
get rid of deeply ingrained social and cultural attitudes which law has long endorsed
and which continue to infuse the criminal justice process, albeit in more covert, less
accessible forms.”1

FACTS

On 20th April 2020, the Accused, a neighbour of the Complainant Sarda Bai, entered
her house and allegedly attempted to harass her sexually. Accordingly, a case was
registered for the offences punishable under Sections 452, 354A, 323, and 506 of the
Indian Penal Code (IPC), 1860, wherein S. 354A lays down the penal provision
relating to sexual harassment by a man. The case was investigated and a charge sheet
was filed. The accused filed an application under Section 438 of the Code of Criminal
Procedure, 1973 an anticipatory bail. The High Court, by the impugned order,
imposed certain conditions upon the Accused, while granting the bail.

The Accused in the case was granted bail on the condition that he and his wife shall
pay a visit to Sarda Bai's home on August 3, 2020, during the Raksha Bandhan
festival, bringing a box of sweets and promising to protect her to the best of his ability
in the future as a “brother would protect his sister”, and further to tender her Rs.
11,000 as a sign of a gift given by brothers to their sisters as part of traditional Raksha
Bandhan customs. The aforementioned bail conditions of the Order were challenged
by some public-spirited individuals.

1
Joanne Conaghan, Law and Gender (Oxford: Oxford University Press, 2013) at 113
ISSUES

1. Whether Sections 437 and 438 of the CrPC give unfettered discretion to the
Courts to impose “such other conditions as necessary” “in the interest of
justice” while granting bail?
2. Whether observation/conditions in an order relating to bail, which reflect bias
of the judge or affect the dignity of a woman are permissible in law?
3. Where there is a need for mandatory guidelines regarding the nature of
conditions to be imposed while deciding on bail applications?

DECISION BY THE COURT

The Honourable Court held that using conditions such as Rakhi tying transforms a
molester into a brother and has the effect of diluting and eroding the offence of sexual
harassment. The act perpetrated on the survivor constitutes an offence in law and is
not a minor transgression that can be remedied by way of an apology, rendering
community service, tying a rakhi or presenting a gift to the survivor, or even
promising to marry her, as has led to the transgression of a woman’s sacrosanct right
to dignity and protection of laws, through numerous cases cited by the Appellant,
notably in Kunal Kumar Tiwari v. State of Bihar2 and State of M.P v. Madanlal3.

The Court observed that the law criminalizes outraging the modesty of a woman.
Hence, granting bail, subject to such conditions, renders the Court susceptible to the
charge of re-negotiating and mediating justice between confronting parties in a
criminal offence and perpetuating gender stereotypes. The term “Judicial
stereotyping” was defined and placed importance upon the duty of the Judges to
identify how the application, enforcement or perpetuation of these stereotypes
discriminates against women or denies them equal access to justice.

It was therefore held by the Honourable Apex Court that the use of reasoning or
language which diminishes the offence and tends to trivialize the survivor, is
especially to be avoided under all circumstances by the Judiciary. It recognised the
following conduct, actions or situations as irrelevant while deciding upon conditions
2
(2018) 16 SCC 74
3
(2015) 7 SCC 681
granting bail – “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. These
illustrations were stated to be not exhaustive.

The Court laid down certain directions, in light of the issues raised, such as Bail
conditions should not mandate, require or permit contact between the accused and the
victim. Secondly, In all cases where bail is granted, the complainant should
immediately be informed that the accused has been granted bail and a copy of the bail
order made over to him/her within two days. Further, the bail conditions and orders
should avoid reflecting stereotypical or patriarchal notions about women and their
place in society, and must strictly be in accordance with the requirements of the CrPC
and any discussion about the dress, behaviour, or past “conduct” or “morals” of the
prosecutrix, should not enter the verdict granting bail. The Courts should not suggest
or entertain any notions of compromise or mediation between the accused and the
victim, as doing so it beyond their powers and jurisdiction.

It was further directed that the Courts must desist from expressing any stereotypical
opinions with respect to gender or otherwise. A pertinent mandate was made ordering
that a module on gender sensitization be included, as part of the foundational training
of every judge and gender sensitisation must be incorporated in legal studies and
AIBE.

CONCLUSION

Justice R. Bhat quoted numerous judgments from the submissions of the Parties that
highlighted the deep-rooted stereotypes that have been perpetuated at all levels of the
Judiciary and how gravely they have been engrained to put women’s rights and
dignity at peril, while also imposing incongruous conditions for granting bail to the
Accused that have no co-relation with the nature or gravity of the offence.

The primary role of all courts is to make sure that the survivor can rely on their
impartiality and neutrality, at every stage in a criminal proceeding, where she is the
survivor and an aggrieved party. The Hon’ble Author also quoted the Inter-American
Commission on Human Right’s definition of judicial stereotyping which states that it
“is a common and pernicious barrier to justice, particularly for women victims and
survivors of violence.

The Bangalore Principles of Judicial Conduct, 2002 were also incorporated with the
guidelines issued in the judgment, depicting a horizontal approach towards addressing
the issue with sensitivity and mandate upholding the dignity of victims in cases of
sexual harassment and crimes against women. The bail conditions in the instant case
were thus set aside and the appeal was disposed of. Though such conditions are
arbitrary and have no nexus with the object sought, the applications for bail must be
strictly construed and it is only just if the guidelines laid down are conformed with, to
bring a fair and equitable trial outcome to both the parties, especially the victim.