New Delhi: On Thursday, Justice Mukta Gupta of the Delhi high court granted anticipatory bail to a Mumbai-based journalist accused of rape in a 19-page order which quotes extensively from the victim’s statement recorded before a magistrate under section 164 of the Criminal Procedure Code. Realising that the bail order may thus have compromised the complainant’s right to confidentiality till the conclusion of the trial, Justice Gupta directed that the order not be uploaded on the court’s website.
However, the absence of any bar on the parties concerned sharing the order with others has meant that the media has got access to it, with the Indian Express breaking the story of how the accused, Varun Hiremath, got anticipatory bail on Friday. With the purpose of not uploading the bail order on the high court’s website completely defeated, Justice Gupta also faces the risk of falling foul of the Supreme Court’s clear directions in the Chinmayanand rape case last year.
The precedents
In Miss ‘A’ v State of Uttar Pradesh, the Supreme Court bench of Justices Uday Umesh Lalit, Vineet Saran and S. Ravindra Bhat last October set aside an Allahabad high court order allowing former Union minister and BJP leader, Chinmayanand access to the statement made by a woman law student to a magistrate in a rape case against him under section 164 Cr.P.C.
The bench laid down that under no circumstances could copies of statements recorded under section 164 CrPC be furnished till appropriate orders are passed by a court after taking cognizance in the matter. The bench clarified that where offences alleged against the accused are of sexual exploitation, utmost confidentiality is required to be maintained. “In our view, the High Court (Allahabad) completely failed in that behalf”, the bench had concluded.
Also read: Rape Complainant ‘Laughed at’ By Sessions Judge During Hearing, Writes to CJI Bobde
It may be argued that in the Hiremath case, the Delhi high court did not permit the accused to directly access the victim’s statement given under section 164 CrPC. But it is a well-recognised principle in law that what cannot be done directly, cannot be done indirectly too. By quoting extensively from the complainant’s statement given under section 164 CrPC while granting anticipatory bail to the accused, Justice Gupta has effectively given the accused de facto access to it – which he can seek to take advantage of so as to compromise her right to confidentiality. This is the very right which was put on a high pedestal by the Supreme Court.
Varun Hiremath. Photo: Screenshot from Facebook video
In the Chinmayanand case, the charge-sheet was filed by the time the Allahabad high court had passed the order permitting him to access the complainant’s statement under Section 164 CrPC. Even then, the Supreme Court bench was clear that the accused was not entitled to a copy of the statement till appropriate orders are passed by the court after the charge-sheet is filed. The bench held:
“The right to receive a copy of such statement will arise only after cognizance is taken and at the stage contemplated by sections 207 and 208 of the Code and not before. The application of Respondent No.2 (the accused) was, therefore, rightly rejected by the Additional Sessions Judge and the order so passed did not call for any interference by the high court”.
Before the appellant could challenge the decision of the high court, by filing a Special Leave Petition in the Supreme Court, a copy of her statement recorded under section 164 CrPC was made over to the accused. When the Supreme Court took up the hearing of her appeal, her advocate reported “no instructions” in the matter and prayed for withdrawal of appearance. Yet, the Justice Lalit bench rejected the prayer and proceeded to hear the counsel for the parties since the matter raised questions of law.
In the Chinmayanand case, the additional district and sessions judge, Shahjahanpur, Uttar Pradesh, had, on September 19, 2019, rejected the politician’s application seeking a certified copy of the complainant’s statement under section 164 CrPC. The judge relied on the Supreme Court’s judgment in State of Karnataka by Nonavinakere Police v Shivanna @ Tarkari Shivanna (2014), in which Justices Gyan Sudha Misra and V. Gopala Gowda had. reasoned:
“….If the copy of statement under section 164 is provided at this preliminary stage of investigation, then besides spilling all the beans of investigation before concerned person(s) who shall also come to know names of all the key witness(es) involved in this case, the health and safety of the victim(s) but also that of all the key witnesses will be in peril. It is also very likely that of all affected and concerned person(s) will leave no stone unturned in influencing the investigation itself and all key witnesses in their favour much before any report is made under S.173 CrPC. All this is surely bound to ‘dent’ the prosecution case….”
Also read: The Extraordinary Slowness of the Wheels of Justice in the Chinmayanand Case
The Allahabad high court said that the Supreme Court’s judgment in Shivanna did not apply in Chinmayanand’s case because its directions in Shivanna were only for the police to follow and not the courts. Relying on a decision of the division bench of the high court, it concluded that it was the bounden duty of the trial court to provide a certified copy of the statement of the victim recorded under section 164 Cr.P.C. to the applicant. The high court thus set aside the trial court’s order rejecting the accused’s application for a copy of her statement under section 164 CrPC.
When the Supreme Court set aside the Allahabad high court’s order in this case, it recalled that its previous directions in Shivanna were issued in the backdrop of the absence of fast track procedure for dealing with cases of rape and gang rape lodged under section 376 IPC, with the result that such heinous offences are repeated incessantly.
The bench in Shivanna had made it clear the statement of the victim should, as far as possible, be recorded preferably before a lady judicial magistrate under section 164 CrPC, skipping over the recording of statement by the police under section 161 CrPC , kept in a sealed cover and thereafter, treated as evidence only at the stage of trial where it may be put to test by subjecting it to cross-examination.
People at a protest demanding an end to violence against women. Photo:
cathredfern/Flickr CC BY NC 2.0
In Shivanna, the Supreme Court directed that upon the receipt of information relating to the commission of rape, the investigating officer shall take immediate steps to take the victim to any metropolitan/preferably judicial magistrate for the purpose of recording her statement under Section 164 CrPC.
“A copy of the statement under Section 164 CrPC should be handed over to the investigating officer immediately with a specific direction that the contents of such statement under Section 164 CrPC should not be disclosed to any person till charge-sheet/report under Section 173 CrPC is filed,” the bench in Shivanna had directed.
By extensively quoting from the complainant’s statement under Section 164 CrPC, Justice Gupta of the Delhi high court might have violated directions contained in two Supreme Court’s judgments, namely, in Shivanna and Miss A.
Also read: How Women Who File Rape Charges Have to Walk Through a Hazardous Journey of Securing Justice
Hiremath’s anticipatory bail order
The Wire has a copy of the anticipatory bail order passed by Justice Gupta on Thursday, but is carefully avoiding any reference to the complainant’s statement under section 164 CrPC, as quoted in the order.
During the hearing of the case, the complainant’s counsel emphasised that any ‘consent’ conveyed after a woman has resisted unwelcome sexual advances constitutes consent under fear. Even assuming that the complainant had voluntarily gone to a hotel room, she can still say no, even while the sexual act is to be performed or is being performed, and this decline of consent is also relevant. If the complainant had booked the room with Hiremath, as his lawyers allege, this too would not show willingness and consent for a physical relationship, her counsel explained.
The complainant alleged rape in the hotel room on February 20, 2021. She filed an FIR on February 23, 2021, after recording a telephone conversation with Hiremath the previous day, the order notes.
In her order, Justice Gupta observed that undoubtedly booking a hotel room or going to the room does not amount to consent for sexual intercourse. It is also well-settled that if at any stage the complainant in a rape case had said ‘no’ to the act, the other person cannot commit any further act. But Justice Gupta said that the manner in which this was conveyed to the accused is “an issue required to be determined in trial”.
Also read: Varun Hiremath Joins Rape Case Investigation After Evading Arrest for 47 Days
Justice Gupta rejected the argument of the state that presumption of absence of consent under section 114A of the Indian Evidence Act is required to be raised as the present case does not involve the allegation of rape by a police officer.
Though Hiremath had absconded the day after the complainant registered her FIR, surfacing only several weeks later, Justice Gupta pointed out that the decisions of the Supreme Court and the Delhi high court do not contemplate rejection of anticipatory bail when the accused has not been declared a proclaimed offender and proceedings for declaring the accused as proclaimed offender are still pending.
This was in response to the submission by the complainant’s counsel that the process under Section 82 CrPC was already initiated against Hiremath, and therefore, he did not deserve anticipatory bail. However, the court said that since the accused had submitted himself to the jurisdiction of the court, he had the right to seek legal remedy in accordance with law.