The complexities of false implication in sexual assault cases and delay in filing FIRs

The Allahabad High Court's observations in the order granting bail to rape accused raises questions on whether we need broad guidelines to adjudicate on delay in filing First Information Reports alleging rape 

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On February 16, the Allahabad High Court granted bail to gang rape accused Sandeep Kumar Mishra and Chandan Kumar and remarked that the instances of false implications in sexual offence cases are on the rise. In the order, Justice Krishan Pahal opined that the delay in filing the First Information Report (FIR) needs consideration while deciding on the grant of bail. 

According to the prosecution, the accused persons allegedly raped the victim on July 1, 2019, in Varanasi. Following the victim's return to Meerut, where she lived, she informed her husband of the incident on August 3, 2019. Thereafter, an application consisting of the details of the alleged incident was filed by the victim's husband (the informant) on August 5, 2019, and an FIR was registered in Meerut. Subsequently, the FIR was sent for investigation at the Rohaniya police station of Varanasi, since it fell within Varanasi's jurisdiction, and the FIR was lodged at Rohaniya police station on September 9, 2019.

Also read: Supreme Court to hear petitions challenging marital rape exception in Indian Penal Code

The state counsel and counsel for the informant opposed the bail application on the grounds that it is not possible in Indian society for a woman to foist false allegations of rape. According to the counsels, the delay in lodging the FIR was natural as the victim was under acute pressure not to reveal the crime. 

The counsels for the accused argued that the victim had falsely implicated the accused to avenge the measures taken by the accused in revealing the illegal activities of godman Chandra Mohan and his organisation, of which the victim and her husband are a part. It was also submitted that the prosecutrix was an educated woman who could have informed her husband of the alleged incident over a mobile phone or lodged the FIR at Varanasi itself. The delay points towards the malicious intent of the informant to implicate the applicants at the behest of godman Chandra Mohan, the counsels for the accused claimed.

Referring to the judgment in the case of Bharwada Bhoginbhai Hirjibhai versus State of Gujarat (1983), Justice Pahal's order noted the observation made by the Supreme Court that in the "tradition bound non-permissive Indian society", a girl or woman would rarely make false allegations of sexual assault to avoid being maligned in society. The Supreme Court opined that in such cases, there is a built-in assurance that the charge is genuine rather than fabricated.

Also read: Married woman with children can't be said to have acted under false promise to marriage, says SC; acquits rape accused

Noting such an observation of the Supreme Court, the High Court remarked on the change of time since the judgment was passed in 1983 and emphasised the rise of false cases in relation to sexual offences. It said, "Much water has flown down the Ganges since passing of the aforesaid judgment by the Apex Court. The Indian society has undergone a complete change during the said period of about 40 years and now it is more often observed that false implication in sexual offences is on a rise. The inordinate delay in lodging the FIR is to be considered at the time of adjudicating the bail."

False cases

Under Section 173 of the Code of Criminal Procedure, 1973, on completion of an investigation, the police officer in charge is required to forward a final report on the details of the offence to the magistrate. One of the situations that may arise after the completion of the investigation is the revelation that the FIR was falsely lodged by the complainant. According to the National Crime Records Bureau (NCRB)'s Crime in India report published in 2020, less than 8 percent of all cases under investigation for rape were found to be 'false' in the final report. The NCRB's report of 2021 states that of the 31, 677 rape cases registered in India, a mere 4,009 cases ended in a 'final report false' condition. 

Reportedly, the National Family Health Survey data of 2021 states that 99 percent of rape cases are not reported. However, in rape cases that are reported, the complexity of the issue can be seen from the reasons for which some of the cases might be held to be 'false'.

According to an investigation conducted in 2014 by The Hindu, of the 600 rape cases registered in Delhi, 25 percent involved parents of the girls filing cases of rape and kidnapping in situations where the couples had eloped — several of which were inter-caste and inter-religious couples. 

This, thus, raises the question of whether the Indian society has, in reality, undergone a "complete change" for women, as claimed by Allahabad High Court in the present case.

Also read: Rape is non-consensual sex. Period.

Delay in filing FIR

The courts have time and again attempted to interpret the acceptable period of delay in filing FIRs in cases of sexual assault, keeping the issue open for interpretation and contest. 

On November 17, 2022, the Supreme Court bench comprising Justices M.R. Shah and Hima Kohli, set aside the bail granted to a rape accused by the Karnataka High Court, and highlighted that when examining the delay in filing the FIR, the courts must consider the trauma and shock undergone by the victim. The order noted that although the complaint was filed five days after the alleged rape, the high court failed to appreciate that on regaining consciousness after the incident, the victim had visited a hospital. Further, even after trying to lodge the FIR, the victim's complaint had not been registered, the order highlighted.

In the case of Tulshidas Kanolkar versus State of Goa (2003), the Supreme Court noted that a satisfactory explanation of the delay is enough to reject the plea of false implication by the accused. In its judgment, the bench remarked the delay in lodging FIR cannot be used as a "ritualistic formula" for doubting the prosecution's case. Further, it stated, "In a case where the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor."

The Allahabad High Court, in the case of Mukhtayar Ahmad versus State of U.P. (2018), upheld this view of the Supreme Court and observed that the delay in lodging of two FIRs, with the delay of 21 days and one-and-a-half years respectively, was explained and substantiated with evidence.

Also read: Supreme Court cancels the bail of the rape-accused who publicly celebrated his release

On the other hand, in January 2021, the Delhi High Court, presided by Justice Suresh Kumar Kait, granted bail to an accused for allegedly raping a two-and-a-half-year-old minor girl due to "considerable" delay of eight and a half hours in the filing of the FIR. 

In the case of State of Rajasthan versus Om Prakash (2002), in a matter involving the rape of an eight-year-old, the Supreme Court considered the delay of 26 hours in lodging of FIR as "fully explained", and remarked that it is not unnatural for the family members to await the arrival of elders of the family to lodge a report. 

By an order dated December 2021, the Madhya Pradesh High Court discharged an accused charged with rape of a minor on the ground of delay in registering the FIR. According to the prosecution's case, the victim died by suicide after delivering the child allegedly conceived through the accused. Thereafter, an FIR was lodged by the parents of the deceased victim, accusing him of rape. Setting aside the order of the high court, on August 12, 2022, the Supreme Court bench comprising Justices D.Y. Chandrachud and J.B. Pardiwala referred to it as "perverse" and "utterly incomprehensible" for the high court to essentially rely on the delay to discharge the accused. 

While the courts have repeatedly stressed the importance of a 'satisfactory explanation' of delay by the prosecution in lodging an FIR alleging sexual assault, the delay in lodging FIRs and the application of the criteria of seemingly vague 'satisfactory explanation' continues to be an irritant for the courts. 

According to Advocate Persis Sidhva, Director of Rati Foundation, which works to create spaces and communities where children are safe from sexual violence, courts tend to ignore the social and cultural context around sexual assault, making it difficult for women and children to report cases to the police. "Almost never do we have cases where the women or children have been sexually abused and they have rushed to the police station or the hospital to report it," she adds. 

Sidhva points out that the vast majority of perpetrators in cases of sexual violence are family members, making the reporting even more complicated. According to the NCRB data of 2021, in 96 percent of rape cases, the offender was known to the victim. Such known offenders include family members, friends, live-in partners, neighbours, and employers.

Considering that complexities are inherent in every sexual assault complaint, it seems worth examining whether a certain broad criteria/guideline to deal with the delay in filing complaints, keeping the uniqueness of each case in view, is needed.