Delhi High Court: A petition was filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’) has been filed by the petitioner seeking to set aside the order dated 13-10-2020, passed by the Additional Sessions Judge whereby anticipatory bail was granted to accused/respondent 2. Swarana Kanta Sharma, J., directed the Trial Court to decide the case irrespective of observations made in the impugned order, without being influenced by the same, on the strength of merit of the case as per law, however, there are no reports of accused having approached the complainant in any manner or having influenced her or threatened her during the last three years, therefore, prayer for cancellation of bail is rejected.
The matter relates to an FIR being registered on 19-08-2020 under Sections 376 and 506 of Penal Code, 1860 (‘IPC’) based on a complaint lodged by the petitioner/complainant alleging therein that respondent 2 had committed rape upon her on false pretext of marriage and had cheated the complainant. The petitioner/ complainant is a single mother of two children and is doing her own business in Punjab and alleged that at Delhi, accused had made physical relations with the complainant on the pretext of getting married to her, at the earliest. It is stated in the complaint that in the meantime, she came to know that the name disclosed by the accused as Akash Thakur was not his real name and his actual name was Ashish Thakur.
It is alleged that the accused had misused her physically and emotionally with ulterior motive of only sexually exploiting her on the pretext of marriage whereas he never intended to get married to her. Thereafter, whenever the complainant used to make phone calls to him, he used to threaten her to destroy her family in case she will take any legal action against him, and always used abusive language with her and threatened her with dire consequences. As alleged, he had also offered her money so that she would not take legal action against him, however, she had told him that money cannot buy her as she is an emotional person and will take legal action against the wrong acts committed by him. On these allegations, the present FIR was registered. Thereafter, vide order dated 13-10-2020, the ASJ was pleased to grant anticipatory bail to the accused.
The Court noted that the impugned order recorded that it appears that the complainant is trying to harass the accused, though he has clean antecedents. The ASJ should have refrained from saying so when a bail order or even otherwise. Though the Courts must pass a reasoned order while granting or denying bail, but they are not required to decide the merits of the case or of the contentions in detail without mentioning in the order that the same will not be considered as opinion on the merit of the case. When the issues in question are still under investigation, regarding which evidence is yet to be collected by the prosecution; it would be a dangerous trend to give a categorical opinion about the same at the stage of grant of anticipatory bail, that too after two months of the registration of the FIR in question. In such circumstances, the categorical observations made at the time of passing of the anticipatory bail order were uncalled for and should have been avoided.
Thus, the Court condemned by observing that the language used in the Counter affidavit filed on behalf of the accused includes certain derogatory terms when referring to the complainant, including phrases such as ‘extremely wicked or villainous designs’ who by her ‘seductive acts’ made accused to propose her for the marriage’, he was shocked to know that the petitioner was not a virgin and was a divorcee’ and ‘typical case of misuse of law, particularly Section 376 of IPC, by a lady like present petitioner as a tool to pressurize men like respondent 2 to surrender before her and to accept her illegitimate demands’ and the like. Thus, use of inappropriate and derogatory language, undermining the dignity of individuals, based on their gender, falls beyond the permissible bounds of language expected in legal pleadings.
1. Necessity of Reasonable Diligence While Drafting Pleadings
The Court noted that it is incumbent upon the legal community to champion a culture of gender sensitivity, embracing the values of fairness and respect in both their professional conduct and the legal documents they create with their hard work and art of drafting at their command. The use of derogatory language in the pleadings goes against the basic minimum standard expected for promoting a gender-just environment as has also been reiterated by the Supreme Court by releasing the ‘Handbook on Combating Gender Stereotypes’ which aims to assist judges and the legal community in identifying, understating, and combating stereotypes about women which may be used while drafting pleadings as well as orders and judgments.
2. Balancing the Use of ‘Strong Language’ with the Cause of Justice
While strong language may be necessary at times in legal pleadings to further the cause of justice, it must not cross the line into offensiveness and should always be in keeping with the dignity of the legal profession. The pleadings should, as far as possible, maintain a dignified tone. However, in furthering his cause, respondent 2 herein became unmindful of the fact that he used disrespectful and stereotypical language in the counter affidavit. The case of the accused and the pleadings could have been equally forceful without resorting to the use of derogatory phrases. The use of infelicitous language transgressing on the character of the woman and stating that her marital status made her lesser than a person or a woman and the marital status of the man in question entitled him to a virgin woman and an unmarried person could not have had a sexual relationship with a woman already married was not only derogatory but an affront to the principles of equality, dignity and respect.
The Court issued the following directions as the Courts are authorized as well as judicially required to record reasons while granting or denying bail, thus, drawing conclusive findings even before the investigation is complete and evidence is collected, solely based on the contents of FIR and arguments addressed before the Court at the time of hearing of anticipatory bail application, should be avoided.
i. The Trial Courts at the time of passing orders on bail applications or Revisionist Courts while adjudicating upon the orders challenged before them, must add a paragraph in their orders/judgments that conveys that nothing expressed in the said order/judgment shall be construed as expression of opinion of the Court on the merits of the case, so that there is no confusion to the Trial Court at the time of final disposal of the case.
ii. Similarly, at the time of passing orders in other miscellaneous applications or revision petitions, which may not finally dispose of the case, a similar paragraph may be added in the order/judgment for the above-mentioned reason.
iii. Even otherwise, Trial Courts should desist generally from passing remarks which have tendency to be treated as the conclusion on an issue in question, at the stage of grant of bail itself when the chargesheet is yet to be filed by the prosecution.
[Rajan Devi v State, 2023 SCC OnLine Del 5931, decided on 13-09-2023]
Advocates who appeared in this case :
Mr. Tarun Gupta and Mr. Anmol Mishra, Advocates for petitioner
Mr. Manoj Pant, APP for the State with WSI Sanju Kumari, PS Palam Village. Mr. Nonu S. Khera, Senior Advocate alongwith Mohd. Ahsan Khanji, Advocate for R2