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The Supreme Court, on August 4, granted bail to petitioners who were in custody since July 10, after being found in contempt of court by the Magistrate Court in Araria, Patna in Bihar. LiveLaw reported that Justice Arun Mishra observed that remanding them to custody was ‘totally impermissible’ and directed their release on bail on furnishing personal bond for a sum of Rs. 10,000. The petition was heard by a bench comprising Justices Arun Mishra, BR Gavai and Krishna Murari.
The petitioners, represented by Advocates Vrinda Grover as well as Ratna Appnender and Soutik Banerjee, were constrained to approach the Supreme Court since the Sessions Court has not listed the bail petition due to the pandemic and even the Araria District Court suspended its functioning till August 3 and the Patna high Court declared vacation until August 6.
Background
The petitioners, Kalyani Badola and Tanmay Nivedita, are social workers with Araria-based NGO Jan Jagran Shakti Sangathan. The incident that led to the petitioners landing up in jail was of a girl, 22 years of age, who was working as a cook at the petitioners’ house called them in a distraught state and asked to pick her up from a bus stand. After bringing her home, she related her trauma to the petitioner with whom she shared a trusting relationship and told them that four men had gang raped her. Until the matter reached the court where she was summoned for giving her statement, the petitioners were with her every step of the way, right from getting a medical examination done to filing of the FIR. She was dependent, emotionally, on the petitioners since the incident.
For questioning, the survivor was taken into the Magistrate’s chambers where she gave her statement. When the statement was being read over to her, the survivor expressed some concerns about not understanding the statement as read out by the Magistrate and requested that the petitioners be allowed to come in and read out the statement to her. Given her emotionally precarious condition, she repeatedly asked for the petitioners to be called into the chamber of the Magistrate. This was mistaken by the Magistrate as ‘distrust’ and also as a personal affront.
The Magistrate construed her anxiety as ‘distrust’ and also as a personal affront. The petitioners then approached the Magistrate and tried to explain why the survivor should not be blamed and requested for sensitivity to be shown towards her circumstance. The Magistrate, allegedly, kept insisting that the victim simply sign the statement, while the petitioners tried to persuade the judicial officer that it be again read out and explained to her. This was construed as criticism of the court and the court remanded the petitioners and the survivor to police custody.
An FIR was lodged against the three, allegedly, without their knowledge and they learnt about it only when they were produced before the Chief Judicial Magistrate (CJM). The CJM granted bail to the survivor on humanitarian grounds but not to the petitioners.
The Petition
The petition stated that “the arbitrary and disproportionate punishment meted out to the survivor and the petitioners displays a lack of sensitivity, and an ignorance of emerging jurisprudence on engagement with survivors of sexual violence in the criminal justice system, at best”. Further, it states that the “continued detention of the Petitioners, who are the support providers and confidants of the gang rape survivor, and the resultant separation is further aggravating the trauma of the already distraught victim”.
The petition also pointed out that local newspapers published personal details of the survivor in violation of section 228A of the Indian Penal Code. The petition also brought to the court’s attention how the incident at the Magistrate court was misreported in local newspapers stating that the petitioners had tried to tear the statement recorded under section 164 of CrPC; which was highly improbable as no damage was caused to the document. The petition also pointed out how the name of the survivor was mentioned repeatedly through the CJM order granting her bail and the ignorance of the court staff in publishing her full name and address.
The petitioners also justified them being with the survivor through the court process of recording her statement by pointing out that in “recognition of the concept of ‘re-victimisation’ and trauma experienced by women victims of rape, Criminal law, procedure, other guidelines and jurisprudence have expressly introduced the concept of a ‘support person’ for the support of the victim throughout her interface with the criminal justice system, from investigation to trial”.
The Supreme Court order may be read here.
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