The Sessions Court in Kozhikode, Kerala, which was in the news recently for granting anticipatory bail to the Kerala writer, Civic Chandran in a sexual harassment case, again gave him relief in another case, on the basis of ‘regressive’ reasoning: this time, on the basis of what the court described as ‘provocative’ photographs of the complainant on social media. In both, Chandran got relief from the same Sessions Judge: S. Krishna Kumar.
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ON August 12, the Sessions Judge in Kozhikode, Kerala, S.Krishna Kumar, granted anticipatory bail, filed under Section 438 of the Criminal Procedure Code, to the 74-year-old writer and social activist, Civic Chandran, pertaining to a complaint that alleged sexual assault under Sections 354A(2), 341 and 354 of the Indian Penal Code [‘IPC’].
This was the second complaint registered against Chandran with allegations of sexual assault. He was granted anticipatory bail in an earlier order, dated August 2, in respect of a complaint where he was accused of sexual harassment by a writer belonging to a Scheduled Tribe community.
In the instant case, it is the case of the prosecution that on February 8, 2020, at a camp convened by the accused and others, the accused committed acts of sexual abuse against the complainant and attempted to outrage her modesty.
The Sessions Court analysed Section 354A of the IPC which defines and punishes acts of sexual harassment. In its analysis, the court focussed on the photographs produced by the accused, published by the complainant on social media, and observed “…the defacto complainant herself is exposing to dresses which are having some sexual provocative one. So Section 354A will not prima facie stand against the accused”.
Further, highlighting the age of the accused, the Court held, “Even admitting there was a physical contact it is impossible to believe that a man having aged 74 and physically disabled can forcefully put the defacto complainant in his lap and sexually press her breast. So it is a fit case wherein the accused can be granted bail”.
The Public Prosecutor for the State contended that it is the ‘habit’ of the accused to molest women poets, and it was pointed out that while this was the second case registered against the accused, more persons were ready to file complaints.
Advocates for the accused, P.V. Hari and Sushama M., raised the contentions of delay in filing of the case. It was highlighted that while the alleged incident of sexual assault took place on February 8, 2020, the case was registered on July 29, 2022.
On this submission, the Court observed, “…the defacto complainant is a educated lady and who is fully aware of the consequences of sexual assault. Why was she reluctant to file the complaint has to be explained by her. But absolutely no explanation is forthcoming”.
It was submitted by the advocate for the accused that the complainant had visited the place of the alleged incident with her ‘boyfriend’ and that there were many people at the time and no one pointed out the complaint against the accused.
While allowing the bail application, the court directed that in case of arrest by the SHO, Koyilandy Police Station, the accused has to be released on bail on executing a bond of Rs.50,000.
Advocate J Sandhya, an activist, lawyer, and a former member of the Kerala Child Rights Commission shared her views with The Leaflet thus: “The observations made and the reasons given by the court are regressive and worth an inquiry by the higher courts”.
On the court citing the age of the accused, Sandhya said, “Age is not a reason for him not to engage in sexual activities. How can the court come to that kind of conclusion?” Sandhya added: “The order of the court says there is no prima facie case against the accused at all. This means deciding the case before the procedure of submitting evidence has even begun. The same observation was made in the previous order against the same accused”.
On the issue of delay in filing the complaint and the observation of the court on the complainant being ‘educated’, Sandhya stated: “The Supreme Court has repeatedly dealt with the basics of the issue and held that delay in filing a complaint cannot be a factor in considering cases of such nature”.
Sandhya pointed out that the victims themselves, in both cases against the accused, have to run to upper courts to seek remedy. “The High Court or the Supreme Court should make suo moto intervention in the matter”, Sandhya urged.
The complaint against the order of the court has been taken up by the Kerala Women’s Commission, a statutory body that is responsible to improve the social status of women, and functions to inquire into the complaints on any unfair practice, and recommends the government to take appropriate action. On the order of the Sessions Court in the present case, the Commission’s Chairperson P Satheedevi stated, “This sends a very wrong message in serious cases like rape”.
