The High Court of Kerala on Thursday upheld the bail granted to activist Civic Chandran in a sexual harassment case by a lower court, but removed the controversial remarks made by a Sessions Judge over the matter.
The Single-Judge Bench of Justice Kauser Edappagath, while upholding the anticipatory bail granted to Chandran, chose to expunge the controversial remarks from the order.
The High Court passed the order on a petition filed by the State of Kerala, challenging the grant of anticipatory bail to Chandran, accused of committing offences punishable under Sections 354 A(2), 341 and 354 of the Indian Penal Code.
As per the prosecution, a cultural camp was organised by a group named ‘Nilanadatham’ in Kadal Veedu at Nandi beach in February, 2020 . After the function, while the de facto complainant was taking rest near the seashore, the accused forcefully embraced her and asked her to sit on his lap. The accused also pressed the breast of the woman, thereby outraging her modesty.
The complainant registered a case only in July, 2022, admitting that she was apprehensive and ashamed.
Session Judge S. Krishna Kumar had observed on August 12 that to attract the offence under Section 354A, there must be some unwelcome sexual advances but in the instant case, the photographs of the complainant showed her “exposing herself in provocative dresses”.
The Sessions Court noted that in order to attract Section 354A, there must be a physical contact and advances involving unwelcome and explicit sexual overtures. He further noted that there must be a demand or request for sexual favours or sexually coloured remarks.
However, the photographs produced along with the bail application by the accused revealed that the de facto complainant was exposing herself with dresses having some sexual provocative one (sic). Therefore, Section 354A will not prima facie stand against the accused, the Sessions court added.
The High Court had stayed this order on August 24, observing that the Sessions Judge seem to have relied on irrelevant material while passing the order.
Appearing for the State, Additional Public Prosecutor P Narayanan contended that the Sessions Court bail order was against the facts and circumstances of the case, thus amounting to an infringement of personal liberty of the survivor and violation of the right to life guaranteed under Article 21 of the Constitution.
He referred to the decision of the Supreme Court in Aparna Bhat & ors vs State of Madhya Pradesh, in which it was held that the dress, behavior, or past conduct or ‘morals’ of the procesutrix should not be considered while granting bail.
As per Narayanan, the court below flouted all the guidelines issued by the Supreme Court and granted pre-arrest bail to the accused by making such observations, which had been deprecated by superior courts.
The Counsel for the government contended that sexually provocative dressing of a victim could not be construed as a legal ground for absolving an accused from the charge of outraging the modesty of a woman, which was highly insensitive and insulting.
He added that the accused had committed a similar offence earlier also and was in the habit of molesting women. Such an accused was not entitled to get discretionary relief as mandated under Section 438 of the Code of Criminal Procedure (CrPC), noted Narayanan.
The government of Kerala has also challenged the bail granted by the same court to Chandran in another sexual harassment case, in which it was observed that Chandran, being an anti-caste social activist, would not have knowingly touched or sexually harassed a woman belonging to a Scheduled Caste/Scheduled Tribe.
The Sessions Judge who delivered this order, was transferred to a Labour Court in Kollam, while the High Court stayed this bail order too.
Case title: State of Kerala vs Civic Chandran