"She Invited Trouble": Allahabad High Court Judge's Bail Order In Rape Case

Weeks after an Allahabad High Court judge observed that grabbing breasts or snapping a pyjama string do not constitute rape or attempt to rape, his colleague has granted bail to a rape accused, noting that the victim "invited trouble and was also responsible for the same".

According to the FIR registered in September last year, the victim is a postgraduate student and lived as a paying guest in Delhi. On September 21, she and her friends visited a restaurant in Hauz Khas. They drank there till 3 am and became "very intoxicated". "Since she needed support, therefore, she herself agreed to go to the house of the applicant and take rest," Justice Sanjay Kumar Singh has said in the order.

"The allegation of the victim that applicant instead of his house took her to his relative's flat and raped her twice is false and against the evidence on record. On the strength of said facts, it is argued that considering the facts of the case as disclosed by the victim, it is not a case of rape but may be a case of consensual relationship between the parties concerned," the order added.

Justice Singh has said that the accused's counsel has submitted that there is no chance of him running from the judicial process or tampering with evidence. The counsel has also pointed out that Nischal has been in jail since December 11 and that he has no criminal history. The counsel has assured the court that the accused will not misuse the liberty of bail. 

The order adds that the state government's counsel opposed the bail petition but could not dispute the "factual aspect of the matter".

"Having heard learned counsel for the parties and examined the matter in its entirety, I find that it is not in dispute that victim and applicant both are major. Victim is student of M.A., hence she was competent enough to understand the morality and significance of her act as disclosed by her in the FIR. This Court is of the view that even if the allegation of the victim is accepted as true, then it can also be concluded that she herself invited trouble and was also responsible for the same. Similar stand has been taken by the victim in her statement. In her medical examination, her hymen was found torn but doctor did not give any opinion about the sexual assault," the judge has said in the order.

The court granted bail to Nischal Chandak, asking him to cooperate with the investigation.

This comes weeks after the March 17 judgment by Justice Ram Manohar Narayan Mishra of Allahabad High Court that has sparked a massive row for its absurd observations. The judge was hearing the accused's challenge to a lower court order summoning them under Section 376 of Indian Penal Code, which deals with rape.

"...the allegation against accused Pawan and Akash is that they grabbed the breasts of the victim and Akash tried to bring down lower garment of the victim and for that purpose they had broken string of her lower garments and tried to drag her beneath the culvert, but due to intervention of witnesses they left the victim and fled away from the place of incident. This fact is not sufficient to draw an inference that the accused persons had determined to commit rape on victim as apart from these facts no other act is attributed to them to further their alleged desire to commit rape on the victim," reads para 21 of the high court ruling.

The lower court had summoned the accused under IPC Section 376, relating to rape, read with Section 18 of Protection of Children from Sexual Offences (POCSO) Act. Striking this down, the high court judge had said, "In order to bring out a charge of attempt to rape the prosecution must establish that it had gone beyond the stage of preparation. The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination."

The judgment drew strong criticism from the Supreme Court, which noted that it reflected a "total lack of sensitivity". The top court said it was pained to see some observations in the verdict and sought replies from the Centre and the Uttar Pradesh government.

"We are pained to state that it shows a total lack of sensitivity on the part of the author of the judgment. It was not even at the spur of the moment and was delivered four months after reserving the same. Thus, there was application of mind. We are usually hesitant to grant stay at this stage. But since observations in paragraphs 21, 24 and 26 is unknown to cannons of law and shows inhuman approach, we stay the observations in said paras," the top court said.