• Jindal Rape Case : Suspending the Law

    Radhika Saxena

    November 13, 2017

     

    On 13th September 2017, the High Court of Punjab & Haryana suspended the sentences awarded and granted bail to the accused in the Jindal Rape Case, as it is popularly referred to.

    All the three accused – Hardik, Karan and Vikas faced trial and were convicted by the trial court for rape, intimidation and circulation of obscene material and sentenced cumulatively to 46 years (of which 20 years were awarded under S.376D IPC for gang rape, 10 years under S.376(2)(n) IPC for committing rape on the same woman repeatedly, 7 years for criminal conspiracy, 2 years for sale of obscene material, 2 years for criminal intimidation and 5 years for publishing or transmitting material containing sexually explicit act under the Information Technology Act), 37 years (of which 20 years were awarded under S.376D IPC for gang rape, 10 years under S.376(2)(n) IPC read with Section 120-B IPC for committing rape on the same woman repeatedly, 2 years for sale of obscene material and 5 years for publishing or transmitting material containing sexually explicit act under the Information Technology Act) and 14 years (of which 7 years were awarded under S.376 read with S.120-B IPC, 2 years for sale of obscene material and 5 years for publishing or transmitting material containing sexually explicit act under the Information Technology Act) each.

    Out of the total sentence awarded, Hardik has undergone 2 years 5 months, Karan has undergone 2 years 4 months 26 days and Vikas Garg has undergone 1 year 11 months 14 days.

    The accused filed an appeal challenging the conviction and an application for the suspension of sentence under Section 389 of the Code of Criminal Procedure (CrPC), 1973.

    The order of the High Court received wide publicity, for it indicts the survivor of immoral behavior by engaging in casual sex and drugs and casts an aspersion on the veracity of her testimony and seems to unfairly focus on the survivor’s lifestyle:

    A perusal of the statement of the victim as also her cross-examination reveals a promiscuous relationship and sexual encounters with all the three accused persons over a period of time and at no stage did she ever make any attempt to reveal her mental state to either the authorities in the college or to her parents or her friends.

    She also conceded in her cross-examination that her hostel room was searched leading to recovery of condoms by the Warden, but the parents were not informed in this regard. She further admitted that she used to smoke cigarettes of 'Classic' make. Apart from this, she admitted use of drugs but clarified it that it was not by choice. She conceded that the drug which she took was known as 'Joint' and the same is smoked.

    The victim in her examination-in-chief has referred to the incident between August, 2014 and December, 2014 when Hardik with friend Karan Chhabra forced themselves upon her one by one. She alleged that this incident took place after 10 p.m. in the Pilot Room of the Helipad, the nursery behind the helipad, in the guardbox situated on the football field and in the academic block washroom.

    …. It would be debatable whether such escapades were possible in or around a place throbbing with activity and frequented by students till late night.

    The testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters and these factors would therefore, offer a compelling reasons to consider the prayer for suspension of sentence favourably particularly when the accused themselves are young and the narrative does not throw up gut wrenching violence, that normally precede or accompany such incidents.

    We are conscious of the fact that allegations of the victim regarding her being threatened into submission and blackmail lends sufficient diabolism to the offence, but a careful examination of her statement again offers an alternate conclusion of misadventure stemming from a promiscuous attitude and a voyeuristic mind. She states that “he (Hardik) then sent his own nude pictures and coaxed me into sending my own nude pictures”. 

    The perverse streak in both is also revealed from her admission that a sex toy was suggested by Hardik and her acceptance of the same.

     

    An important question thus arises: Are such considerations relevant for deciding an application for suspension of sentence and bail made under Section 389 CrPC?

     

    Section 389 CrPC provides as follows:

    389. Suspension of sentence pending the appeal; release of appellant on bail –

    Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

    Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release;
    Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.

    1. The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a Court subordinate thereto.
    2. Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall;

       

       

       

      1. Where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
      2. Where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under Sub-Section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
         
    3. When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

    As is evident from the text of the section, it applies only to convicted persons. Sub-section (1) empowers the appellate court to suspend execution of sentence, or when the convicted persons are in confinement, to grant bail if a valid appeal against the conviction is pending. Sub-section (2) gives concurrent jurisdiction to the High Court in the matter and sub-section (3) provides for bail to be granted under certain circumstances by the sentencing court upon satisfying it that he intends to present an appeal, whereas sub-section (4) provides for exclusion of time during which persons were on bail in computing the term for which sentenced.

    Though there cannot be any straight jacket formula and each case must be considered on its own facts, when an application is made under S. 389, the Court while exercising discretion to suspend the sentence is required to consider the nature of the offence, the manner in which it occurred and whether bail granted during trial was misused, as held by the Supreme Court in Angana & Anr. v. State of Rajasthan. The Court has in Vjay Kumar v. Narendra held that in cases of a grave nature, suspension of sentence and bail is usually not granted. The case at hand is one of repeated rape by persons over a period of two years coupled with exchange of nude pictures, which became the basis for blackmailing the survivor into submission and sexual gratification. But this has not gathered the Court’s interest, except a passing reference:

    There is indeed no doubt that few allegations of the victim regarding blackmail, if correct need strongest condemnation with equal forceful retribution that the law mandates and this becomes the testing ground for us to balance, these divergent aspects.

     

    While deciding bail during trial, Courts generally steer clear from expressing anything on the merits of the matter, to avoid prejudging the issue, which may cause prejudice to the accused. Once convicted, the presumption of innocence no longer holds. However, even while considering bail pending appeal, the Court must still withhold expressing an opinion on the merits of the case as it may prejudice the parties. Though the Court has stated that they may not be understood to have expressed any opinion on the merits of the matter, in quoting from the survivor’s testimony, shaming her for not disclosing the incident to her parents earlier on, smoking, consuming alcohol and drugs, using a sex toy (even though coerced to do so) the Court seems to have prejudged the matter.

     

    In quoting selectively from the testimony of the survivor, the Court seems to have assumed consent on her part and admonishes her for the same, which tends to undermine the conviction:

    The testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters and these factors would therefore, offer a compelling reasons to consider the prayer for suspension of sentence favourably particularly when the accused themselves are young and the narrative does not throw up gut wrenching violence, that normally precede or accompany such incidents.

     We are conscious of the fact that allegations of the victim regarding her being threatened into submission and blackmail lends sufficient diabolism to the offence, but a careful examination of her statement again offers an alternate conclusion of misadventure stemming from a promiscuous attitude and a voyeuristic mind. She states that “he (Hardik) then sent his own nude pictures and coaxed me into sending my own nude pictures”.

    The perverse streak in both is also revealed from her admission that a sex toy was suggested by Hardik and her acceptance of the same.

    Moreover, such statements may prejudice the survivor when the appeal is finally heard as they will be used by the accused to persuade the Court that the allegations leveled are likely false and have also been judicially noticed.

     

    It is important to note that the Court also assumes that the offence of rape must necessarily offer a narrative of gut wrenching violence running counter and in the same breath, ignores the gravity of the survivor’s allegations regarding blackmail and threatening leading to forceful submission.

     

    At this point, it is necessary to look at cases of rape where suspension of sentence was granted, in order to better understand the factors that Courts usually consider.

    There are not a lot of cases of suspension of sentence decided by the Supreme Court, primarily because the High Courts have been conferred power to decide such cases by virtue of Section 389 CrPC and are also the courts of appeal for most cases of conviction. However, in one case where the High Court of Rajasthan had suspended the sentence and granted bail to an accused convicted under sections 376 (rape) and 450 (house trespass in order to commit offence punishable with imprisonment for life) of the Indian Penal Code (IPC), the Supreme Court having regard to the fact that the survivor was a British Journalist, who was emotionally, mentally and physically wrecked and became totally incapacitated to even think and act like a normal human being as a result of the offence, overturned the High Court’s order granting bail and suspending the sentence, without expressing any opinion on the merits of the case (Suzanne Louise Martin v. State of Rajasthan).

    Orders of the High Court of Punjab and Haryana and Delhi in cases of rape reveal that where the appeal is not likely to be heard soon, and a substantial amount of the sentence awarded is undergone, the Courts generally grant bail and suspend the sentence:

    1. In Kanwar Singh v. State of Haryana, the High Court of Punjab and Haryana suspended the sentence and granted bail to a convict since the appeal was not likely to be heard soon and he had undergone more than 4 years of imprisonment.
    2. In Kuldeep & Ors. v. State of Haryana, the sentence awarded to the convict was suspended for a week to enable him to attend the marriage ceremonies of his sister.
    3. In Amit v. State of Haryana, the sentence was suspended since the convict had served 1 year, 3months and 13 days of the 10 year sentence awarded and the appeal was not likely to be heard soon.
    4. In Jai Bhagwan v. State of Haryana, the convict had served 5 years of the total 14 year sentence awarded and was not required or involved in any other case.
    5. In Aditya @ Vicky v. State, the High Court of Delhi, noted that in a case of suspension of sentence the Court is not expected to meticulously examine each and every piece of evidence to decide as to whether the same was sufficient for the trial court to have indicted the accused, unless there are glaring and blatant errors on the face of the record to demonstrate that the trial court had mis-appreciated the evidence or had ignored material facts and evidence, thus making the judgment and the sentence imposed, unsustainable. The Court stated that it was prima facie of the opinion that the judgment under appeal considered the evidence placed on record, including the testimony of the survivor, and the medical evidence to convict the appellant and further that this was hardly the stage to test the evidence on the yardstick of the law, which is an exercise that would be undertaken at the time of final arguments. The application was accordingly dismissed.
    6. In Ranjit Kumar v. State, the High Court of Delhi granted suspension of sentence and bail in a case where the convict had already undergone 3 years out of a total of 7 years imprisonment awarded and the survivor did not cooperate during the medical examination, no semen or blood was found and the appeal was not likely to be listed soon. The Court however refrained from reproducing from the survivor’s evidence though there were improvements in the same, lest it prejudice her.
    7. In Lalit Yadav v. State (NCT of Delhi), the High Court noted that no special or adequate reasons were recorded by the trial judge for awarding a sentence lower than the minimum. The Court rejected the application for suspension of sentence and bail, while declining to express any opinion on merits though the appellant alleged the complainant to be of easy virtue and in the habit of making false complaints.
    8. In Sachinder v. State, the High Court of Delhi observed that the learned counsel for the appellant raised arguable points and the appeal is not likely to be heard in near future and granted suspension of sentence and bail.

    Courts are also cautious to not express an opinion on merits or reproduce from the evidence of the complainant. In the case at hand, the Court records that the appeal may not “mature for some time”, but nevertheless went into the evidence and chastised the complainant for her behaviour rather than exercising restraint.

    Moreover, in keeping with the settled law on section 389 CrPC, the Court has not adequately considered the peculiar facts of this case, the nature and gravity of the offence. The Court has recorded that this is a case of repeated rape coupled with extortion in that the accused Hardik had forced the complainant to share her naked pictures, which were in his custody in college, making her submit to forceful sexual intercourse. The Court however did not consider it adequately, despite its grave nature. The Court has also not considered whether bail granted earlier was misused.

    On the contrary, the Court has quoted from the complainant’s cross-examination to paint an alternative story of her being immoral. The survivor’s mental and physical state of being also does not find any mention in the order passed despite an existing precedent by the Apex Court.

    Further, though the Court acknowledges the need to keep in mind the gravity of the situation and the offence, it goes on to state that it also requires striking a balance between the retributory, reformatory and rehabilitative justice. It is pertinent to note that theories of punishment such as reformation, retribution and rehabilitation, are usually taken into account at the stage of sentence, and not in a post-conviction suspension of sentence and bail case. Significantly, no facts have been recorded to the effect that the accused were willing to ‘reform’ and neither have any mitigating circumstances been recorded.

    While the complainant has been made out as a woman of questionable morals, the Court has permitted the accused to go abroad for studies during the pendency of the appeal, pursuant to permission of the Court which almost seems as a reward far from working “as a guarantee to prevent a repeat resulting from the fear of incarceration in the event of failure of the appeal”. Besides, appeals in such cases must ordinarily be heard expeditiously rather than keeping them pending as a deterrent.

    Further in ordering the survivor and the accused to undergo counseling, the Court has gone beyond its mandate in an application for suspension of sentence and bail.

    The Court has set a disturbing precedent, and such an order may prejudice the complainant when the appeal is heard and even lead to acquittal. Such a practice must be discouraged.

     

    UPDATE: The survivor challenged this order before the Supreme Court of India. The Apex Court has issued notice on the survivor’s petition today and has stayed the order suspending sentence and granting bail.


     

    Radhika Saxena is a Delhi based lawyer and she works at the chambers of Senior Advocate Indira Jaising.

    First published in Lawyers Collective.

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