New Delhi: The Allahabad high court recently made a significant observation, saying that bail cannot be granted to a person accused of a sexual offence against a woman on conditions that are against the mandate of fair justice to the victim, such as making any form of compromise or agreeing to marriage.

According to LiveLaw, the bench of Justice Saurabh Shyam Shamshery ruled that courts should take into consideration the directions passed by Supreme Court in Aparna Bhat while granting bail in such cases. In that case, the apex court had held that imposing bail conditions that "implicitly tend to condone or diminish the harm caused by the accused and have the effect of potentially exposing the survivor to secondary trauma" are "especially forbidden".

The Allahabad high court was hearing a bail application filed by one Imran, who is accused of forcing a transgender person to have a sexual relationship with him. His bail application was rejected by the additional sessions judge in Firozabad.

According to LiveLaw, his counsel argued that Imran, who is a driver and a married person, used to drive the first informant (the transgender person). He had been falsely implicated in the present case to extract money from him, the counsel argued.

Vehemently opposing the bail application, the counsel for the first informant and the government's advocate relied upon the statement of the victim to submit that the "first informant was victimised and was indulged in a sexual relationship forcefully". The first informant's lawyer did not dispute that "initially for two years the applicant and the victim were in a consensual relationship".

The judge's order records that while considering an application for bail, the court must not go "deep into the merits of the matter such as the question of credibility and reliability of prosecution witnesses which can only be tested during the trial".

The order also adds that the court should record the reasons which have were weighed before bail was granted or rejected.

It noted that conditions for the grant of bail "ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory". The order then proceeds to note:

"The court while granting bail in the cases involving sexual offence against a woman should not mandate bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused, etc. and shall take into consideration the directions passed by the Supreme Court in Aparna Bhat and others vs. State of Madhya Pradesh and another, 2021 SCC Online SC 230, in this regard."

The court granted bail to the accused, recording that it had considered the material available on record, the period of detention already undergone by the accused, the unlikelihood of early conclusion of trial and the absence of any convincing material to indicate the possibility of tampering with the evidence, among other factors, before taking this decision.

Conditions for the bail included cooperating with the trial, appearing before court when necessary and not misusing the liberty of bail.

What did SC say in Aparna Bhat's matter?

In the Aparna Bhat case, the Supreme Court overturned an order by the Madhya Pradesh high court which granted bail to a person accused of outraging the modesty of his neighbour by asking the victim to tie a rakhi to the man.

The top court also issued a series of guidelines. These included:

(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 a 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.

Before the Supreme Court pronounced its order, attorney general K.K. Venugopal had suggested that judges should be counselled and trained in gender sensitisation. "The judgments by [the Supreme Court] on conditions of bail should also be uploaded on all websites so that they[lower court judges] know what can be done and what can't," he had suggested.

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