Supreme Court sets guidelines on bail conditions in sexual offence cases: Aparna Bhat vs. State of Madhya Pradesh (2021)

Date of the Judgment: March 18, 2021

Citation: (2021) INSC 159

Judges: A.M. Khanwilkar, J., S. Ravindra Bhat, J. (authored the judgment)

Can a court impose conditions for bail that require an accused to interact with the survivor of a sexual offense? The Supreme Court of India addressed this critical question in a recent judgment, setting crucial guidelines for lower courts. This case arose from a challenge to a Madhya Pradesh High Court order that imposed a unique bail condition in a sexual harassment case. The Supreme Court, in its judgment, not only addressed the specific bail condition but also took the opportunity to discuss the broader issue of gender sensitivity in the judiciary.

Case Background

On April 20, 2020, at approximately 2:30 a.m., the accused, a neighbor of the complainant, allegedly entered her house and attempted to sexually harass her. The complainant reported the incident, leading to the registration of Crime No. 133/2020 at Police Station, Bhatpachlana, District-Ujjain. The accused was charged under Sections 452, 354A, 323, and 506 of the Indian Penal Code (IPC). After investigation, a charge sheet was filed. The accused then sought pre-arrest bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC).

Timeline:

Course of Proceedings

The accused filed an application under Section 438 of the CrPC, seeking pre-arrest bail. The Madhya Pradesh High Court granted bail but imposed a condition that the accused, along with his wife, visit the complainant’s house with a Rakhi and sweets. The High Court also directed the accused to tender Rs. 11,000 to the complainant and Rs. 5,000 to her son, framing it as a customary ritual. This unusual condition led to the appeal before the Supreme Court.

Legal Framework

The judgment references several key legal provisions:

• Section 437(3)(c) of the Code of Criminal Procedure, 1973 (CrPC): This section allows courts to impose conditions while granting bail, stating, “any other condition which the court considers necessary.”
• Section 438(2)(iv) of the CrPC: This section pertains to anticipatory bail and permits courts to impose conditions, stating, “such other conditions as it may think fit.”
• Sections 452, 354A, 323, and 506 of the Indian Penal Code (IPC): These sections relate to the offences for which the accused was charged: house-trespass, sexual harassment, voluntarily causing hurt, and criminal intimidation, respectively.
• Section 354A of the Indian Penal Code (IPC): Defines sexual harassment and its punishment, including physical contact, demands for sexual favors, showing pornography against a woman’s will, and making sexually colored remarks. The provision states:
  
  “354A. Sexual harassment and punishment for sexual harassment .—
  (1) A man committing any of the following acts—
  (i) physical contact and advances involving unwelcome and explicit sexual overtures; or
  (ii) a demand or request for sexual favours; or
  (iii) showing pornography against the will of a woman; or
  (iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
  (2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall
  be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
  (3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with
  imprisonment of either description for a term which may extend to one year, or with fine, or with both.”
• The Protection of Children from Sexual Offences Act, 2012 (POCSO): This act deals with offenses against children, including sexual assault.

Arguments

Appellants’ Submissions:

• The appellants argued that while the CrPC allows courts to impose conditions for bail, these conditions must align with the purpose of granting bail and not be arbitrary or extraneous.
• They contended that the High Court’s condition of visiting the complainant’s house with a Rakhi and sweets was unacceptable.
• They cited Kunal Kumar Tiwari v. State of Bihar [(2018) 16 SCC 74] and Sumit Mehta v. State (NCT of Delhi) [(2013) 15 SCC 570], emphasizing that bail conditions should not be used to hamper investigation or be unrelated to the fairness of the trial.
• They relied on State of M.P v. Madanlal [(2015) 7 SCC 681], arguing that the idea of compromise, especially through marriage, is abhorrent in sexual offense cases.
• They cited Ramphal v. State of Haryana (Crl. A. No. 438/2011), where the court held that compromises are irrelevant in rape and sexual assault cases.
• The appellants highlighted multiple cases where courts imposed irrelevant conditions, such as community service or encouraging marriage between the accused and the victim.
• They argued that no observation or condition should be made that reflects bias or affects the dignity of a woman or the fairness of a trial.

Intervenors’ Submissions:

• The intervenors submitted that the power to impose conditions under Sections 437(2) and 438 of the CrPC is wide but not unlimited.
• They cited Munish Bhasin v. State [(2009) 4 SCC 45] and Parvez Noordin Lokhandwalla v. State of Maharashtra [(2020) 10 SCC 777], stating that conditions like community service or donations are impermissible.
• They argued that imposing conditions like community service violates the right to equality and personal liberty.
• They submitted that courts cannot act as social reformers or fundraisers and impose conditions unrelated to the offense.

Attorney General’s Submissions:

• The Attorney General supported the appeal, emphasizing the need for gender sensitization in the judiciary.
• He cited Kunal Kumar (supra), Sumit Mehta (supra), State of Punjab v. Gurmit Singh [(1996) 2 SCC 384], and Sakshi v. State [(2004) 5 SCC 518], highlighting the need for additional considerations in cases of crimes against women.
• He suggested that bail conditions should not mandate contact between the accused and the victim, and should protect the complainant from harassment.
• He emphasized that courts should not encourage compromises or marriages between the accused and the victim.
• He argued for mandatory gender sensitization training for judges and members of the bar.

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue before the court was:

• Whether the High Court’s bail condition, requiring the accused to visit the complainant’s house with a Rakhi and sweets, was legally permissible and appropriate.
• Whether the High Court’s bail condition, requiring the accused to tender money to the complainant and her son, was legally permissible and appropriate.
• More broadly, what are the appropriate guidelines for imposing bail conditions in cases involving sexual offenses to ensure the dignity and safety of survivors?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

The Court also considered the following legal provisions:

Judgment

The Supreme Court set aside the bail conditions imposed by the Madhya Pradesh High Court, stating that they were inappropriate and unacceptable. The court emphasized that such conditions trivialize the trauma of sexual assault survivors and perpetuate gender stereotypes. The court also issued a series of directions to ensure that bail conditions in cases involving sexual offenses are fair, sensitive, and in accordance with the law.

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court followed Kunal Kumar Tiwari v. State of Bihar [(2018) 16 SCC 74]* and Sumit Mehta v. State (NCT of Delhi) [(2013) 15 SCC 570]*, emphasizing that bail conditions should be in the interest of justice and not arbitrary.
• The Supreme Court followed State of M.P v. Madanlal [(2015) 7 SCC 681]*, and Ramphal v. State of Haryana (Crl. A. No. 438/2011)*, reiterating that compromises are irrelevant in rape and sexual assault cases.
• The Supreme Court cited Munish Bhasin v. State [(2009) 4 SCC 45]* and Parvez Noordin Lokhandwalla v. State of Maharashtra [(2020) 10 SCC 777]*, regarding the impermissibility of conditions like community service or donations.
• The Supreme Court cited State of Punjab v. Gurmit Singh [(1996) 2 SCC 384]* and Sakshi v. State [(2004) 5 SCC 518]*, highlighting the need for courts to avoid stereotyping the victim and the need for sensitivity in cases of crimes against women.
• The Supreme Court cited V.K. v. Bulgaria, Communication No. 20/2008, UN Doc. CEDAW/C/49/D/20/2008 (2011) (CEDAW)* and Karen Tayag Vertido v. The Philippines , Communication No. 18/2008, UN Doc. CEDAW/C/46/D/18/2008 (2010) (CEDAW)*, regarding the impact of stereotyping on women’s right to a fair trial and the need for courts not to create “inflexible standards” for women in rape cases.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by several factors, primarily the need to ensure that the judicial process does not further traumatize survivors of sexual offenses. The Court emphasized that bail conditions should not perpetuate gender stereotypes or undermine the seriousness of such crimes. The Court also stressed the importance of gender sensitization for judges and lawyers to ensure fairness and impartiality in the justice system.

Fact:Law Ratio

The Court’s decision was primarily driven by legal considerations and the interpretation of relevant statutes and precedents, with a significant emphasis on ensuring justice and fairness for survivors of sexual offenses.

The Court’s reasoning emphasized the need to avoid conditions that could further traumatize survivors, perpetuate gender stereotypes, or undermine the seriousness of sexual offenses. The Court also highlighted the importance of judicial impartiality and gender sensitivity in ensuring a fair justice system.

The Supreme Court considered alternative interpretations but rejected them, emphasizing the need to avoid conditions that could further traumatize survivors, perpetuate gender stereotypes, or undermine the seriousness of sexual offenses. The Court also highlighted the importance of judicial impartiality and gender sensitivity in ensuring a fair justice system. The final decision was reached by setting aside the inappropriate bail conditions and issuing clear guidelines for future cases.

The Court’s decision was clear: bail conditions should not mandate contact between the accused and the victim, should protect survivors from harassment, and should avoid stereotypical or patriarchal notions. The court also emphasized that compromises or marriages between the accused and the survivor should not be encouraged.

The reasons for the decision were:

• The imposed bail conditions were deemed inappropriate and unacceptable.
• Such conditions trivialize the trauma of sexual assault survivors.
• The conditions perpetuate gender stereotypes.
• The court has a duty to ensure fairness and impartiality.
• There is a need for gender sensitization in the judiciary.

“Using rakhi tying as a condition for bail, transforms a molester into a brother, by a judicial mandate. This is wholly unacceptable, and has the effect of diluting and eroding the offence of sexual harassment.”

“The act perpetrated on the survivor constitutes an offence in law, and is not a minor transgression that can be remedied by way of an apology, rendering community service, tying a rakhi or presenting a gift to the survivor, or even promising to marry her, as the case may be.”

“The law does not permit or countenance such conduct, where the survivor can potentially be traumatized many times over or be led into some kind of non-voluntary acceptance, or be compelled by the circumstances to accept and condone behavior what is a serious offence.”

There were no minority opinions in this case. The bench consisted of two judges, both of whom concurred with the judgment.

Key Takeaways

• Bail conditions should not mandate contact between the accused and the victim.
• Bail conditions should protect the complainant from harassment.
• Courts should avoid reflecting stereotypical or patriarchal notions about women.
• Courts should not encourage compromises or marriages between the accused and the survivor.
• Judges and lawyers must undergo gender sensitization training.
• The judiciary plays a vital role in ensuring fairness and safety for all, especially victims of sexual violence.

This judgment has significant implications for future cases, as it sets clear guidelines for imposing bail conditions in sexual offense cases. It also emphasizes the need for a more sensitive and gender-aware approach within the judiciary, potentially leading to more equitable outcomes for survivors of sexual violence.

Directions

The Supreme Court issued the following directions:

• Bail conditions should not mandate, require, or permit contact between the accused and the victim.
• If there is a potential threat of harassment, the court should consider additional protection for the victim.
• The complainant should be informed immediately when the accused is granted bail.
• Bail conditions should avoid reflecting stereotypical or patriarchal notions about women.
• Courts should not suggest or encourage compromises or marriages between the accused and the survivor.
• Judges should be sensitive to the traumatization of the prosecutrix during proceedings.
• Judges should not use language that undermines the survivor’s confidence in the court’s impartiality.
• Courts should desist from expressing stereotypical opinions about women.
• A module on gender sensitization should be included in the foundational training of every judge.
• The National Judicial Academy should devise inputs for gender sensitization training for judges.
• The Bar Council of India should include topics on sexual offenses and gender sensitization in the syllabus for the All India Bar Examination.
• Each High Court should formulate a module on judicial sensitivity to sexual offenses, to be tested in the Judicial Services Examination.

Development of Law

This judgment clarifies the law regarding bail conditions in sexual offense cases. It reinforces that bail conditions must be relevant to the case, protect the survivor, and avoid perpetuating harmful stereotypes. It also mandates gender sensitization training for judges and lawyers, aiming to create a more equitable and sensitive justice system. The ratio decidendi of the case is that bail conditions in cases of sexual offences cannot be such that it trivializes the offence or traumatizes the survivor and should be in consonance with the object of bail provisions. There is a change in the previous position of law as now the court has specifically laid out guidelines for the lower courts to follow.

Conclusion

The Supreme Court’s judgment in Aparna Bhat vs. State of Madhya Pradesh is a landmark decision that sets clear guidelines for bail conditions in sexual offense cases. By setting aside the inappropriate conditions imposed by the High Court and mandating gender sensitization training, the Supreme Court has taken a significant step towards ensuring a fairer and more sensitive justice system for survivors of sexual violence. This judgment underscores the importance of judicial impartiality and the need to avoid perpetuating harmful stereotypes.