“Judges play – at all levels – a vital role as teachers and thought leaders”- Supreme Court

Gender violence is an indiscriminate problem that is existing all over the world. The United Nations Organisation has defined “violence against women” as “any act of gender-based violence that results in or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.” In India, we have a number of statutory codes, that secures to provide protection to women, however, to what extent they provide such protection is still a question of fact as well as a question of law.

In the case of Aparna Bhat & Ors. v. The State of Madhya Pradesh & Anr. [CRIMINAL APPEAL NO. 329 OF 2021] the facts of the case initiates on April 20, 2020, at approximately 2.30 a.m., when the accused-applicant, a complainant’s neighbor, approached her house and grabbed the complainant’s hand, reportedly attempting to sexually assault her. As a result, Case No. 133/2020 was lodged at Bhatpachlana Police Station in the District of Ujjain for offenses punishable under sections 452, 354A3, 323, and 506 of the Indian Penal Code (IPC). A charge sheet was filed after the case was reviewed. The accused applied for pre-arrest bail under Section 438 of the Code of Criminal Procedure, 1973 (hereafter “CrPC”). The High Court, in the aforesaid judgment, The appellants argue that the expressions “in the interest of justice,” “such other conditions as the court deems necessary,” and “as it may think fit,” as found in the bare text of Section 437(3)(c) and Section 438(2)(iv) of the CrPC, grant the Courts power to enforce such other conditions as may be necessary in the facts of a particular case, but those conditions must be in concordance with the statute.

The court held that “Having regard to the foregoing discussion, it is hereby directed that henceforth: (a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;

(b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;

(c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days;

 (d) 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 Cr. PC. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;

(e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;

 (f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and

 (g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.

Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that (i) women are physically weak and need protection; (ii) women are incapable of or cannot take decisions on their own; (iii) men are the “head” of the household and should take all the decisions relating to family; (iv) women should be submissive and obedient according to our culture; (v) “good” women are sexually chaste; (vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother; (vii) women should be the ones in charge of their children, their upbringing and care; (viii) being alone at night or wearing certain clothes make women responsible for being attacked; (ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”; (x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony; (xi) testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and (xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

In the light of the above, the bail conditions in the impugned judgment, extracted at para 3 above, are set aside, and expunged from the record”.

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