The High Court’s reasoning that the delay in filing FIR in sexual harassment cases should be considered liberally in view of the stigma attached to it, has been hailed as gender-sensitive and progressive by observers.
ON Thursday, the Kerala High Court judge, Justice A. Badhrudeen, in State of Kerala versus Civic Chandran and XXXX versus Civic Chandrancancelled the anticipatory bail of the Kerala writer and social activist Civic Chandra, accused in a sexual harassment case.
The present criminal appeals were filed by the Kerala Government and the de facto complainant against the order granting anticipatory bail application by the Sessions Court Judge, Kozhikode, under theScheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, wherein Sections18 and18A(2) of the Act creates a bar with respect to granting anticipatory bail to those who are booked under the Act.
In the present case, a Dalit complainant had filed an FIR against the accused under sections354 (assault or criminal force to woman with intent to outrage her modesty),354A(1)(ii) (sexual harassment through demand or request for sexual favours),354A(2) (punishment for sexual harassment) and354D(2) (punishment for stalking) of the Indian Penal Code, andSection 3(1)(w)(i) and (2)(va) (punishments for offences atrocities) of the 1989 Act.
The accused filed for anticipatory bail during the course of the investigation, and the Sessions Court, Kozikhode, while granting the pre-arrest bailobserved that “[the accused] is writing and fighting for a casteless society. In such a circumstance it is highly unbelievable that he will touch the body of the victim fully knowing that she is a member of scheduled caste”. The judgment further read, “the victim is taller than the accused. Considering his age and poor health condition it cannot be believed that the accused made a kiss on her back without her consent”.
During the present appeals before the Kerala High Court, Justice Badhrudeen, on the delay in the filing of the FIR, held that the explanation given by the complainant was not insufficient. He observed, “The social stigma in disclosing the overt acts, its unfortunate aftermath and ordeals definitely would also persuade the victim not to divulge the occurrence and to subside the same”. The judgment further held, “…delay in lodging the F.I.R in sexual assault cases should be considered in a different yardstick and with extreme liberal approach”.
Addressing the question of whether Section 3(2)(va) of the SC/ST Act would be attracted in the present case, the court held that, “In this matter, the accused and defacto complainant are very familiar to each other as could be discernible from the prosecution records and other materials. Therefore, the required knowledge of the accused that the defacto complainant is a member of Scheduled Caste is well discernible from the materials available as ascribed in Section 3(2)(va) of the SC/ST Act.” It, thus, concluded that the commission of offences under Sections 3(1)(w)(i) and 3(2)(va) of the SC/ST Act were made out, and the specific bar under Sections18-A of the SC/ST Act would apply in the grant of the anticipatory bail.
On the contention of the counsel of the accused that Chandran is suffering from illness, the court observed, “in cases involving serious offences under the SC/ST Act where anticipatory bail is specifically barred by the statute, mere illness of the accused is not a ground for granting anticipatory bail against the mandate of the statute, where custodial interrogation or medical test etc., are necessary in particular.”
In its final directions, the judgment directed Chandran to surrender before the investigating officer within seven days for the purpose of investigation. It also directed that in the event that a regular application is filed, the Special Judge shall consider the same on merits and pass orders as early as possible.
Lastly, in the final paragraph of the judgment, Justice Badhrudeen acknowledged the alarming number of cases of atrocities and sexual harassment against girl children, women, and even against minor children regardless of their gender identity. He called upon the Investigating Officers and the stakeholders “to rise to the occasion and bestow their efforts to arrest the crimes and to give insight to the society in this regard”.
Advocate K.V. Bhadrakumari, counsel for the complainant, hailed the Kerala High Court’s order cancelling the anticipatory bail to be a progressive one and particularly welcomed the order on the ground that the explanation of the complainant in her delay in the filing of the FIR was accepted by the court. She opined that the observations made by the Session’s Court, Kozikhode, in its order granting anticipatory bail to Chandran, sent a wrong message to women, who wished to complain against cases of sexual abuse, that she will be attacked by society as well as the court of law. The order of Sessions Court ‘humiliated and insulted’ the complainant, thereby labelling her as a ‘liar’, she added. Whereas, according to the counsel, the Kerala High Court accepted the contentions of the complainant in the proper perspective.
Advocate J Sandhya, an activist, lawyer, and a former member of the Kerala Child Rights Commission welcomed the High Court’s order cancelling the anticipatory bail. According to her, the Session’s Court order infringed upon not only women’s rights but also the rights of the SC/ST community. According to Sandhya, the Sessions Court took a lenient view despite the strongamendment in 2018 to the 1989 Act.
On October 13, the Kerala High Court judge, Justice Kauser Edappagath,expunged the controversial remarks by a Sessions Court Judge in Kozhikode, Kerala while granting anticipatory bail order to Chandran, in another sexual harassment case. The High Court, however, upheld the decision of the Sessions Court in granting anticipatory bail to him.