The Rape Capital: The media menace or judicial reality?

Feminazi is the latest beloved term of the opinion wave that believes feminism to be a sheer redundant misandry in recent modern times. Trending on Twitter or loosely thrown around in professional conversations, it is making people turn their heads towards the other side of the gender-debate. And the term gives expression to every anguish and agony faced by men who have suffered at the hands of gender-partial policies and laws.

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When ‘Game of Thrones’, the most popular T.V. series in the history of TV viewership, gave the world two phrases- ‘Valar Morghulis’ and ‘Valar Dohaeris’, they almost became the war cry of the anti-feminism brigades everywhere. The phrases meaning ‘all men must die’ and ‘all men must serve’ were projected as the real hidden feminist agenda. A complete subjugation of men and total control of matters and lives by women forms the crux of understanding of many concerned with suppression of men.

Men’s rights activism or MRA is no longer a western phenomenon. Its taking its roots strongly in our part of the world. There is an increased debate an awareness about harassment and misery faced by men in the society.

The degree of derogation that the word ‘Feminazi’ entails, the relevance or redundancy of feminism or the surge off insecure male chauvinists in a neo-patriarchy, in short the general gender-debate deserves a fully-drawn narrative and a separate write up. What we want to engage ourselves with right now is the menace of alarmingly increasing cases of abuse of laws initially brought into force for women empowerment. Section 375 of IPC is one such most misused law.

In january 2016 a judgement by an additional sessions judge in a special fast track court of Delhi was quoted and reported by various media houses and social media users. The judgment along with acquitting an accused in a rape case no 148 of sessions court of 2013 raised some essential issues plaguing Indian legal system in this context. Calling the accused a “Rape case survivor” judge said that, “His plight may also continue after his acquittal as his implication may have caused an uproar in society but his acquittal may not even be noticed. He would continue to suffer the stigma of being a rape case accused. He has remained in custody for a considerable period. It may not be possible to restore the dignity and honour of the accused nor compensate him for the humiliation, misery, distress and monetary loss.”

Adding to this, the judges also drew a much needed inference exclaiming that ” No one discusses about the dignity and honour of a man as all are only fighting for the rights, honour and dignity of women. Laws for protection of women are being made which may be misused by a woman but where is the law to protect a man from such a woman where he is being persecuted and implicated in false cases, as in the present case. Perhaps, now it is the time to take a stand for the man.”

Journalists and social media community uses an ever-upgrading terminology referring to the crime of rape. Title given to the Indian capital as ‘the rape capital’ is one such title used widely internationally. The statistics of actual conviction versus the accusations, however paints a different picture.

In a case ending in acquittal of the two accused persons under section 354 and 37,… vs …, the senior metropolitan magistrate Gaurav Rao noted how not only the entire legal system suffers but also image of cities and countries are maligned because of false rape cases. He said “She tried to extort money from the alleged accused and maligned their image. Such allegations not only defame and shame a person but also let the world label the capital as rape capital. She set the entire state machinery into motion and tried to use the law for her benefit knowing full well that the allegations levelled by her were false”.

Courts have time and again indicated that personal monetary gain and revenge have been primary reasons for false allegations. Since, in such cases, a mere statement of a woman is considered as a proof enough to get a person arrested, this particular law makes itself very vulnerable for abuse. This rather in turn puts women and children’s security under jeopardy for person seeking revenge can take advantage of a woman’s needy condition or a child’s innocence for assaulting an enemy.

Acquitting a father in an alleged rape case against his daughter, and canceling conviction orders of Additional Sessions Judge, (Sanjay vs State on 28 July, 2016, Crl. A. no. 1059/2015), the Delhi high Court opined that, “In this case the mother of the Prosecutrix, driven by the feeling of revenge, has gone to the extent of falsely implicating her husband for the rape of their daughter, being completely ignorant of the shame she has brought to her entire family including herself, her daughter and her husband by her such derogatory, disgraceful, intolerable and unacceptable conduct. At the first blush of this case, it appeared to us that the father has really committed such a heinous offence with his own daughter, however a deep scrutiny of all the evidences taken together gives an altogether different picture.”

The court also quoted the Apex Court in Radhu vs. State of Madhya Pradesh reported in 2007 CriLJ 4704. “The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.”

It is true that in a case of rape or outraging the modesty of a woman, the statement of the Prosecutrix is considered as a prime evidence but only if the story remains consistent and is not embellished or exaggerated. If proven otherwise the defendant or the accused is usually given a benefit of doubt.

In the case of Tameezuddin @Tammu vs State (NCT off Delhi) (2009) 15 SCC 566, the Supreme Court stated that “It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.”

In order to fight fraudulent cases under section 376 and 354 the courts of India have always laid a huge emphasis on the evidence corroborating the story of the prosecution. Its always important for the prosecution to build a proper and strong narrative against the accused even if all that the accused has is his denial to offer.

The apex court of india in the case Narender Kumar (Appellant) vs State (NCT of Delhi) Respondent, Crl. A. no. 2066-67 of 2009 acquitted an earlier convicted person saying “However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part off the duty of the defense to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on it own legs an cannot take support from the weakness of the case of the defense.”

In a case against airing of a controversial documentary about Nirbhaya gang-rape case, a bench of justices BD Ahmed and Sanjeev Sachdeva came down heavily on the role of media in such cases. They said, “Media trials do tend to influence judges. Subconsciously a pressure is created and it does have an effect on the sentencing of the accused/ convict.” Speaking about the accused’s interview in the documentary they said “Whether he has shown remorse or not would be considered at the time of his sentencing.”Murther reprimanding the media the bench remarked that, “,”We agree that earlier media had a self imposed code of not reporting sub-judice matters, but now “media has thrown it (the code) to the winds”.

Considering the fact that rape is a heinous crime of the highest degree, such media trials create pressure on judges for convicting the accused so that it sets precedence for other criminals and society in general. Not only that it does create a bias in the minds of judges as remarked in the above quoted judgement. Such kind of irresponsible reporting not only becomes fatal to the honour of accused in case of a false allegation but also proves bad for prosecution. Statements given by prosecutrix or key witnesses to the media could be given without much thought or legal counseling which could be used by the defense.

The backbone of all legal procedures is that a person is considered innocent until he is proven guilty and convicted by a court of law after a proper trial. The law pertaining to rape cases however, going against this basic presumption, assumes prosecutrix as victim in the beginning while putting the accused under arrest based on the FIR before the investigation and trial begins.

After Nirbhaya case in December 2012 the sensitivity towards rape victims and the working of law was being questioned. The rape laws witnessed amendments as an aftermath. Many rape accused have had to face media trials and humiliation in the society. However, the experts believe that the stringent laws that are widely worded are prone to be misused. The percentage of acquittals in the rape cases remains very high.

The legal community has begun taking notice of false accusations and courts are beginning to issue advisories to fight for the truth no matter on whose side it lies.

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Understanding Anticipatory Bail

Since the beginning of human civilization, right to liberty of a human being has been upheld in utmost esteem. The legal systems of the world have set procedures in place which ensure that individual freedom and liberty are never challenged except by a legal trial. Forefathers of India and authors of the biggest constitution of the world, in line with these basic principals, devised laws that celebrate “liberty, fraternity and equality” of all citizens. Section 438 of Criminal Procedure Code (CrPC) is one such law and our point of discussion.

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Section 438 of Cr.PC doesn’t use the phrase “Anticipatory bail“. The phrase therefore is a common euphemism used by the legal fraternity to ensure understanding by common man and effectively so. The difference between a regular bailand an anticipatory bail order is that the former is sought after the arrest while the latter is sought in anticipation of an arrest and can be presented during the time of arrest and is effectively immediately. The section, however, doesn’t specify whether the arrest is apprehended in a court or by the police. Issuance of summons for appearance by a magistrate also entitles one to apply for anticipatory bail.

This particular provision under Section 438 of CrPC was recommended by the Law Commission of India in its 41st report. Since then it has been invoked, defined and applied in many different legal scenarios. The report says ““The necessity for granting anticipatory bails arises mainly because some times influential persons try to implicate theirs rivals in the false cases for the purposes of disgracing them or for other purposes by getting them detained in jails for some days. In recent times, with the accentuation of political rivalry this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that persons accused of an offense is not likely to abscond or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.”

This section, however, has exceptions in case of the states of Uttar Pradesh and Uttaranchal. During a nationwide emergency in the year of 1975 by the then prime minister Indira Gandhi, the provision of anticipatory bail was omitted by inserting Section 9 in UP Amendment act, 1976. More recently formed state of Uttaranchal, carved out of Uttar Pradesh, also inherited the same law. An applicant seeking relief under Section 438 in these states has to move to Allahabad High Court or its bench in Lucknow to get a stay on arrest under Article 226. A PIL was filed in the Supreme Court of India in the year 2015 challenging this provision as a contradiction to the very preamble of constitution. The order on this is still pending.

In a milestone case of Gurbaksh Singh Sibbia & Ors. v. State of Punjab, (1980) 2 SCC 565, the Constitution Bench of Supreme Court summarized the law reflected in Section 438 and laid down certain principles as to when the discretionary power to grant anticipatory bail may be exercised by a Court.

As discussed earlier the anticipatory bail is issued before the arrest has been made. There have been cases in which SC has advised that an anticipatory bail can be granted even after filing of chargesheet and issuing of arrest warrant by a sessions court or a High court. Sheikh Kasim Bi vs The state of Andhra, AIR (1986) AP 345 says “…we hold that the filing of a charge-sheet by the police and issuing of a warrant by the Magistrate do not pub an end to the power to grant bail under S. 438(1), Cr. P. C., and on the other hand we are of the view that the High Court or the Court of Session has power to grant anticipatory bail under S. 438(1) to a person after the criminal court has taken cognizance of the case and has issued process viz., the warrant of arrest of that accused person.

In order to seek an anticipatory bail the applicant has to prove his/her apprehension for a possible suit against him. He is supposed to provide valid proofs/documentation substantiating his/her story; a mere statement is usually not entertained.

To ensure that the provision is not abused by unscrupulous elements, the opposing party is notified or a public-prosecutor is engaged to contest the application in front of a magistrate. The court, if it thinks fit, may grant the bail which could be produced by the applicant at the time of his arrest to the investigating officer. In case of rejection of the same the individual may move to a higher court and challenge the preceding order.

In many cases wherein the bail is rejected the court issues directions that the applicant may apply for a regular bail in case of an arrest. Rashmi Rekha Tathoi and anr. vs State of Orissa and Ors. Supreme Court Criminal appeal no 750 of 2012 Arising out of SLP (Crl.) no. 7281 of 2011 and Criminal appeal no 751 of 2012 Arising out of SLP (Crl.) no 7286 of 2011. In this judgment, though, the SC dismissed the bail application upholding the orders of Orissa High Court, it advised the applicant to apply for regular bail after the arrest has been made.

The orders granting bail remain valid until it is cancelled by the same or a higher court or until the final verdict. This bail, however, is not a blanket cover against multiple offenses or different parties. The bail is directed only against the particular apprehension contested and proved in the court.

This granting of freedom by the means of an anticipatory bail usually comes with a lot of responsibility. The Court may choose to apply conditions, it deems necessary, to the bail order. Commonly used conditions are:-

The accused should cooperate completely with the police during the entire investigations in order to solve the case.

Another and one of the most extensively discussed condition is that the accused should not try to hamper the investigation procedure by influencing any witness and/or co-accused by the way of thereat or bribe. In some cases magistrates or judges lay conditions directing that the co-accused and/or co-accused shouldn’t be seen in the vicinity (usually a prescribed radius) of a witness’ residence.

An accused is also sometimes directed not to leave the country or the state while the trial is still pending. This is done in order to ensure that the police have access to the accused for investigation. Few situations require accused reporting to the I.O. periodically or to seek approval for domestic or international travel.

In the renowned case of sexual harassment filed by a woman colleague against ex-TERI chief R.K. Pachauri, the sessions court and consecutively the High court of Delhi has imposed stringent travel restrictions during the pendency of trial. He has been warned against alleged threat to the complainant and has had a bail bond amount forfeited because of violating his travel restrictions.

Though freedom of a person is one of the most important driving factor behind granting anticipatory bail, a court has complete authority to dismiss this request and recommend judicial custody for a person. A high court or the Supreme Court may also cancel an earlier issued anticipatory bail order.

Denial for anticipatory bail is heavily based on the older antecedents of the accused. If the accused has had a series of suits against and/or convictions against him, the anticipatory bail may not be given. The declaration of being a “proclaimed offender” usually goes against the accused and poses a challenge in the way of getting his/her applications approved.

In the case Supreme Court criminal appeal no. 1331 (2012) the accused went absconding to avoid execution of arrest warrant against him and did not report to the assigned police station despite interim protection granted by the SC. In face of which his entitlement to an anticipatory bail stood cancelled and his application dismissed.

An anticipatory bail is usually denied in case of a grave offense, national threat issue or sedition charges. In this scenario the accused is considered as a possible threat to the society. Also these cases usually require longer and continual access to the accused by the police, hence the remand becomes inevitable.

Kerala High Court in its order denying anticipatory bail to a celebrated politician in Against The Order In Crl. M.C. vs By Advs. Sri.M.K.Damodaran (Sr.), (Crl.) A. No. 125 (2016) said, “The law applies equally to all. It applies to the rich and poor, mighty and downtrodden and literate and the illeterate alike. We do not find that the averments made, as stated above, would in any way help the appellant to get any extraordinary treatment in the matter of anticipatory bail.”

Anticipatory bail has been denied in cases where the weapon of offense, case property and/or vehicle of offense is yet to be recovered. If a co-accused is still to be identified and arrested, police requests for a remand period for the accused.  In such cases too a bail is denied.

The ambit of Section 438 pertaining to anticipatory bail is very wide with courts being given total discretion for decision. And it is so keeping in view the varied variety and nature of cases that are witnessed daily in different courts and it’s applicability in every one them. The basic principle at the root of all this exercise is delivery of justice to the aggrieved while safeguarding citizen rights.