Kerala High Court: In a criminal miscellaneous petition filed to set aside the order granting pre-arrest bail by the Sessions Court to Civic Chandran for offences under Sections 354 and 341 of the Penal Code, 1860 (IPC), Kauser Edappagath, J. has observed that even though the reason shown by the Sessions Court for granting pre-arrest bail cannot be justified, but the order granting pre-arrest bail cannot be set aside. Therefore, the Court confirmed the pre-arrest bail granted by the Sessions Court to Civic Chandran, subject to certain conditions.
In this case, on 8.2.2020, there was a cultural camp on Nandi beach, and after the function, the victim was taking rest near the seashore, and it was alleged by her that Civic Chandran forcefully embraced and outraged her modesty.
The Court observed that from the perusal of the statements there are sufficient ingredients to attract the offences punishable under Sections 354, 354-A (2) and 341 IPC; still, the Court by relying on certain pictures of the victim published on social media, observed that Section 354-A of the IPC will not be prima facie attracted, as the victim was wearing sexually provocative dress.
The Court viewed that everyone has the freedom to wear whatever he/she wants to wear subject to the laws of the land. Objectifying women about what she wears cannot be justified and there is no reason why a woman should be judged by her clothes. Further, the norms that categorize woman based on her attire and expressions can never be tolerated and there cannot be any thought that women dress only to lure male attention.
It was also viewed that it is wrong to say that a woman was sexually assaulted just because she was wearing provocative clothes and sexually provocative dressing of a victim cannot be construed as a legal ground to absolve an accused from the charge of insulting the modesty of a woman. Further, the right to wear any dress is a natural extension of personal freedom guaranteed by the Constitution of India; and even if a woman wears a sexually provocative dress, that cannot give a licence to a man to outrage her modesty.
The Court referred to the ruling in Aparna Bhat v. State of M.P., 2021 SCC OnLine SC 230, wherein it was held that “discussion about the dress, behaviour, or past conduct of the victim should not enter the verdict while granting bail to the accused ”, thus it was viewed that the remarks in the impugned order regarding provocative dress of the victim cannot be sustained, and they are hereby deleted.
Moreover, it was observed that there is a delay of 2½ years, and though in the matter of sexual offence, the delay does not have much significance, but, because the victim is a very educated lady, she should explain the delay satisfactorily, as the explanation given by her that the delay occurred due to fear and shame is vague and not convincing. Thus, the Court confirmed the prearrest bail order.
[XXX v. State of Kerala, 2022 SCC OnLine Ker 5248, decided on 13.10.2022]
Advocates who appeared in this case:
For the Petitioner: Advocate U. Jayakrishnan;
Advocate C.C. Anoop;
Advocate Sooraj D.;
For the Respondent: Advocate Nirmal S;
Advocate Veena Hari;