New Delhi: The Supreme Court on Friday dismissed a petition challenging the Delhi high court’s decision to grant pre-arrest bail to TV journalist Varun Hiremath. Hiremath has been accused of raping a 22-year-old woman in a Delhi hotel.
Senior advocate Nitya Ramakrishnan, appearing for the complainant, said the high court had virtually granted benefit of doubt to the accused, and that too on a selective reading of the complainant’s Section 164 statement (statement given to the metropolitan magistrate under the Code of Criminal Procedure), LiveLaw reported.
Hiremath had absconded for 50 days and had evaded arrest. The entire family left their house and ignored non-bailable warrants and the process issued under Section 82 CrPC, Ramakrishnan told the Supreme Court. Applying for bail during such abscondence has been elevated by the high court to “submitting to jurisdiction”. If such a view were to be replicated, there will remain no respect for the process, she added.
The Supreme Court’s vacation bench of Justices Navin Sinha and Ajay Rastogi then turned to the issue of consent, suggesting that the complainant had complied with Hiremath’s “request”.
“Our question is, purely for purpose of bail only. The question of normal human conduct, behaviour and understanding. If a man and woman are in a room, the man makes a request and the woman complies with it, do we need to say anything more at this stage?” the bench said.
Ramakrishnan responded by saying that the Indian Penal Code states there needs to be unequivocal consent for each act. “Lets assume a situation, where I disrobe myself, but there is a particular activity the man wants to indulge in, and I say no to it, and it’s a penetrative act, it becomes an offence,” Ramakrishnan explained.
“That is a much larger question which will be decided later. We have repeatedly emphasised that whatever we are saying is for purpose of cancellation of bail only,” the bench responded, according to LiveLaw.
In light of the complainant’s repeated refusal and attempts to stop the accused, the difference between “insistence” and “force” was merely semantic, Ramakrishnan agued. Just the fact that the complainant may have disrobed, she said, is not sufficient to offset the aggression or trauma. Reading from the FIR, she said that a portion of the FIR notes that the accused “insisted”, but it’s not a standalone observation, it is preceded by her saying in the lobby that “she isn’t interested”. Even after disrobing, before the penetration, she pushed him away, said ‘No’ multiple times, vomited all over him but he “insisted,” she argued.
When the complainant said she did not want to engage in sexual activity with the accused, according to Ramakrishnan he said, “Look I paid 11000 Rupees for the room, so you will have to comply with it.”
“It was not a state of continued consent. The penetrative act which constitutes the offence was entirely without her consent. Why should then he [Hiremath] not comply with even one day of custodial interrogation?” Ramakrishnan asked the bench.
The bench, however, said it was not inclined to interfere with the anticipatory bail already granted.
As The Wire has reported before, when Justice Mukta Gupta of the Delhi high court granted anticipatory bail to Hiremath, her order quoted 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.
The anchor, in his anticipatory bail application, had claimed that he has been “falsely implicated” in the case. The woman and Hiremath had engaged in consensual sexual activity, the application said. It claimed that the 22-year-old’s “interest” in the accused became “clear” because she came from Pune to meet him in Delhi and went into the double occupancy room “willingly after giving her identity documents to the hotel management”.
The woman, in her complaint and statement before the magistrate had alleged rape at a five-star hotel in Chanakyapuri on February 20. She has said that her identity documents were shared with the hotel as part of their COVID-19 protocol and cannot conceivably be considered as consent.