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Allahabad HC grants bail to rape accused citing prior consensual sexual relationship

The court also appeared to place onus on minor survivor saying she had "sufficient knowledge" of nature and consequence of sexual activity

Sabrangindia 16 Apr 2021

Rape victim
Image: https://www.latestlaws.com
 

The Allahabad High Court has granted bail to a 22-year-old rape accused on grounds that the survivor/complainant was 17 years old and had “sufficient knowledge” to understand the nature and consequence of sexual activity.

The court observed that the accused and the survivor had been in a physical relationship before the alleged incident of rape. Justice Mohd. Faiz Alam Khan placed reliance on the statements of the woman under section 161 and 164 of the Code of Criminal Procedure (CrPC) as well as the statement of her father to conclude that his daughter and the accused were in a relationship and had engaged in consensual sexual activity before the alleged rape.

The order reads, “It appears that the applicant and prosecutrix were having an affair and the prosecutrix in her statement recorded under Section 161 Cr.PC. has admitted that the prosecutrix as well as the applicant had indulged in consensual sexual activity for 4-5 times prior to the impugned incident.”

Under section 161 statement, the survivor alleged that she was a close friend of the applicant/accused and that they had indulged in sexual intercourse four to five times, as they were in love. However, in the latter part of the statement, she claimed that the accused was blackmailing her on the basis of some obscene photographs.

In her statement recorded under section 164 CrPC, she said that on September 9, 2020, he had contacted her telephonically, and taken her on his motorcycle to a room, where he allegedly raped her. The survivor’s father, in his statement, had also said that his daughter had informed him that they were in a consensual physical relationship.

Although the survivor in this case is a minor, the court opined that she was well aware of the nature and consequence of her physical relationship with the accused. Justice Khan said, “The age of the prosecutrix is about 17 years and having regard to the fact that she was studying in D.N.M. Institute of Engineering, it could not be ruled out that she was possessing sufficient knowledge and was in a position to fully understand the nature and consequences of sexual activity.”

The court also noted the accused’s submission that no obscene photographs or videos of the survivor were obtained from his phone on his arrest last year. He was thus granted bail on conditions that he would not attempt to meet the survivor and shall “file an undertaking before the trial court that he will not seek any adjournment when the prosecution witnesses will be present.”

The order appears to disregard outright the survivor's agency in terms of having the right to withdraw consent despite being in a sexual relationship. It thus makes one wonder if the court has inadvertantly validated sexual violence by intimate partners. The order also uses terms like “having an affair” that sound loaded in a society that is already deeply patriarchal and judgmental. The order also comes across as insensitive to the minor survivor.

Indian courts have time and again issued guidelines on how to conduct sexual violence trials but this order appears to stand in contravention of the accepted practices.

In a recent case, involving a rape allegation against a TV anchor, a Delhi court rejected his anticipatory bail plea on grounds that “evidence of character or previous sexual experiences” are not relevant in sexual assault cases. In this case, the defense argued on the same lines that the complainant survivor and the accused anchor were in a ‘loving relationship’ before the alleged incident of rape.

In March, the Apex Court also took note of bizarre bail orders passed by different state courts addressing the paternalistic attitudes prevalent in the system. It scrapped a Madhya Pradesh High Court order requiring the accused to get a rakhi tied by the complainant in a case of sexual violence, and issued certain directions.

One of the guidelines laid down by a Bench comprising Justices AM Khanwilkar and Ravindra Bhat reads, “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. Discussion about the dress, behaviour, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail.”

But this Allahabad High Court order displays sheer insensitivity, commenting on the survivor’s agency and wisdom, using terms that could undermine the confidence of survivors in the face of fairness and impartiality of courts.

The order may be read here: 

 

Related:

HC grants bail to accused in minor’s rape, imposes strict conditions

SC addresses paternalistic and misogynistic attitudes reflected in judicial orders; issues directions

Delhi court rejects news anchor’s pre arrest bail plea in rape case

P&H High Court refuses bail to rape accused despite survivor’s “no objection” to bail

Witnesses turn hostile, rape accused BJP MP Chinmayanand acquitted

 

Allahabad HC grants bail to rape accused citing prior consensual sexual relationship

The court also appeared to place onus on minor survivor saying she had "sufficient knowledge" of nature and consequence of sexual activity

Rape victim
Image: https://www.latestlaws.com
 

The Allahabad High Court has granted bail to a 22-year-old rape accused on grounds that the survivor/complainant was 17 years old and had “sufficient knowledge” to understand the nature and consequence of sexual activity.

The court observed that the accused and the survivor had been in a physical relationship before the alleged incident of rape. Justice Mohd. Faiz Alam Khan placed reliance on the statements of the woman under section 161 and 164 of the Code of Criminal Procedure (CrPC) as well as the statement of her father to conclude that his daughter and the accused were in a relationship and had engaged in consensual sexual activity before the alleged rape.

The order reads, “It appears that the applicant and prosecutrix were having an affair and the prosecutrix in her statement recorded under Section 161 Cr.PC. has admitted that the prosecutrix as well as the applicant had indulged in consensual sexual activity for 4-5 times prior to the impugned incident.”

Under section 161 statement, the survivor alleged that she was a close friend of the applicant/accused and that they had indulged in sexual intercourse four to five times, as they were in love. However, in the latter part of the statement, she claimed that the accused was blackmailing her on the basis of some obscene photographs.

In her statement recorded under section 164 CrPC, she said that on September 9, 2020, he had contacted her telephonically, and taken her on his motorcycle to a room, where he allegedly raped her. The survivor’s father, in his statement, had also said that his daughter had informed him that they were in a consensual physical relationship.

Although the survivor in this case is a minor, the court opined that she was well aware of the nature and consequence of her physical relationship with the accused. Justice Khan said, “The age of the prosecutrix is about 17 years and having regard to the fact that she was studying in D.N.M. Institute of Engineering, it could not be ruled out that she was possessing sufficient knowledge and was in a position to fully understand the nature and consequences of sexual activity.”

The court also noted the accused’s submission that no obscene photographs or videos of the survivor were obtained from his phone on his arrest last year. He was thus granted bail on conditions that he would not attempt to meet the survivor and shall “file an undertaking before the trial court that he will not seek any adjournment when the prosecution witnesses will be present.”

The order appears to disregard outright the survivor's agency in terms of having the right to withdraw consent despite being in a sexual relationship. It thus makes one wonder if the court has inadvertantly validated sexual violence by intimate partners. The order also uses terms like “having an affair” that sound loaded in a society that is already deeply patriarchal and judgmental. The order also comes across as insensitive to the minor survivor.

Indian courts have time and again issued guidelines on how to conduct sexual violence trials but this order appears to stand in contravention of the accepted practices.

In a recent case, involving a rape allegation against a TV anchor, a Delhi court rejected his anticipatory bail plea on grounds that “evidence of character or previous sexual experiences” are not relevant in sexual assault cases. In this case, the defense argued on the same lines that the complainant survivor and the accused anchor were in a ‘loving relationship’ before the alleged incident of rape.

In March, the Apex Court also took note of bizarre bail orders passed by different state courts addressing the paternalistic attitudes prevalent in the system. It scrapped a Madhya Pradesh High Court order requiring the accused to get a rakhi tied by the complainant in a case of sexual violence, and issued certain directions.

One of the guidelines laid down by a Bench comprising Justices AM Khanwilkar and Ravindra Bhat reads, “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. Discussion about the dress, behaviour, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail.”

But this Allahabad High Court order displays sheer insensitivity, commenting on the survivor’s agency and wisdom, using terms that could undermine the confidence of survivors in the face of fairness and impartiality of courts.

The order may be read here: 

 

Related:

HC grants bail to accused in minor’s rape, imposes strict conditions

SC addresses paternalistic and misogynistic attitudes reflected in judicial orders; issues directions

Delhi court rejects news anchor’s pre arrest bail plea in rape case

P&H High Court refuses bail to rape accused despite survivor’s “no objection” to bail

Witnesses turn hostile, rape accused BJP MP Chinmayanand acquitted

 

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