Sakina Tashrifwala
Published on: October 20, 2022 at 21:42 IST
The Kerala High Court on Thursday rejected novelist and social activist Civic Chandran’s anticipatory release in a sexual harassment case after hearing petitions from the state government and victims.
Justice A. Badharudeen stated that a prima facie case is brought out charging the conduct of offences under the SC/ST Act, as well as a non-bailable offence under Section 354 of the IPC; thus, the petitions were granted.
After reviewing the facts of the case to determine whether a prima facie case claiming commission of offences under Sections 3(2)(va) and 3(1)(w)(i) of the SC/ST Act is made out, the aforementioned case is expressly made out. Aside from that, a non-availability offence under Section 354 of the IPC is established.
In such a circumstance, the Special Judge’s decision to clear the accused at the investigation stage cannot be justified in order to dismiss the entire prosecution before the inquiry is completed.
The Kerala State Government and the de facto Complainant have petitioned the High Court to overturn the anticipatory bail granted to Writer-Activist Civic Chandran, alleging that the order violates the spirit of the special law established to prevent atrocities against members of the SC/ST community.
The accused was charged with sexual harassment under Sections 354, 354 A(1)(ii), 354A(2), and 354 D(2) of the IPC, as well as applicable provisions of the SC/ST(Prevention of Atrocities) Act, 1999.
During the course of the inquiry, the accused requested anticipatory bail, and the trial judge granted it over objections from the prosecution and the victim.
The prosecution claims that in February 2022, the de facto complainant, a Dalit writer, organised an event at Nandi to celebrate the launch of her book.
The accused reportedly sexually assaulted the complainant after the function by kissing the back of her neck without her consent. According to the police, the offender violated the victim’s modesty by knowing she belongs to the Scheduled Caste.
When the case was previously heard by the Supreme Court, the State claimed that the Sessions Court erred by considering the pre-arrest bail application under Section 438 of the Code of Criminal Procedure when there is an absolute bar under Sections 18 and 18 A of the Scheduled Castes and Scheduled Tribes (PA) Act, 1989.
Furthermore, it was argued that the Sessions Court made a fundamental error in noting in the ruling that there is no prima facie evidence made out against the accused, claiming that the finding was made solely to avoid the bar under Section 18 of the Act.
The Court stated that a simple reading of Section 3(2)(va) makes it abundantly evident that the conduct of the offences listed in the schedule would constitute an offence under Section 3(2)(va) of the SC/ST Act.
The accused must commit the offences listed in the schedule attached to the SC/ST Act against a member of a Scheduled Caste or Scheduled Tribe “knowing that such person is a member of a Scheduled Caste or Scheduled Tribe” in order to be charged with the aforementioned offence.
In the instant case, the offence alleged to have been committed by the accused under Section 354 of the I.P.C. is one in the schedule, and hence commission of the offence under Section 354 of the I.P.C. would attract offence under Section 3(2)(va) of the SC/ST Act, if knowledge is foreseeable.
According to the evidence presented before the Court, the accused and the de facto complainant are quite familiar with each other.
As a result, the Court found that the accused’s needed knowledge that the defacto complainant is a member of the Scheduled Caste is easily identifiable from the materials available, as specified in Section 3(2)(va) of the SC/ST Act.
Furthermore, the Court observed that in cases involving serious offences under the SC/ST Act where anticipatory bail is expressly prohibited 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 tests, among other things, are required.
To summarise, the commission of offences under Sections 3(1)(w)(i) and 3(2)(va) of the SC/ST Act appears to be clearly shown in this case.
As a result, the special bar under Sections 18-A of the SC/ST Act would apply in the case of anticipatory bail. In such a circumstance, anticipatory bail cannot be granted in defiance of the statutory bar.
As a result, the Court granted the appeal and reversed the impugned order granting anticipatory bail to the accused in this matter in defiance of the specific bar under Sections 18 and 18-A of the SC/ST Act.
The Court has ordered the accused to appear before the Investigating Officer within seven days to submit to interrogation and, if necessary, medical examination for the purpose of investigation.
The Court further stated that, in the event of his arrest, the accused should appear before the Special Judge on the day of his arrest, and that, because there is no legislative obstacle to granting conventional bail, it may be sought.
The Court further stated that if the accused requires medical assistance following his arrest, the Investigating Officer must provide it.
The same Sessions Court that issued the contested order granted anticipatory bail to the Writer-Activist in another sexual harassment case in which it is alleged that the accused made sexual advances toward a young female writer and tried to offend her modesty during a camp held at Nandi beach in February 2020.
While granting anticipatory relief in that case, the Court noted that the offence under Section 354A of the Indian Penal Code was not prima facie attracted since the woman was dressed in ‘sexually provocative clothing.’
The top court recently overturned the observation.
Both rulings in the Chandran case have been heavily criticised, particularly the court’s observation that the offence under Section 354A of the Indian Penal Code is not prima facie attracted when the woman is dressed in ‘sexually provocative clothing.’
Petitions were also filed in opposition to Chandran’s anticipatory bail order.
While hearing the two pleas filed by the State and the De facto complainant earlier this month, a Single Bench of the Kerala High Court observed that, while the reason given by the Court below for granting anticipatory bail cannot be justified, the order granting anticipatory bail cannot be set aside.
However, the Court found that the remarks in the assailed judgment about the victim’s suggestive attire could not be maintained and thus struck them down.
Before adjourning, the Court observed that, given the increase in the number of atrocities and harassment against girls, it is imperative that all parties involved, particularly the Investigating Officers and Stakeholders, rise to the occasion and bestow their efforts to apprehend the criminals and provide insight to society in this regard.