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Bail in Rape cases – How the Story goes on?

12 min read

By Nishita Makkar

Introduction

‘Bail in Rape cases’, although it is found rare, but this concept has been recently in hype after television actor Pearl V Puri, who has been accused of raping and molesting a five-year old minor girl, on Tuesday, June 15, 2021, was granted bail by the Vasai Court.

He was taken under judicial custody for 14 days invoking charges of Indian Penal Code under Sections 376A, 376B and POSCO Act under Sections 4, 8, 12, 19, 21. Session’s judge Aditi Kadam granted bail of Rs. 25,000 but there was no particular ground defined on which bail was granted[1].

After the news broke, a moment named #ISTANDWITHPEARLPURI started trending on social media. As we all know that Rape cases in India have been increasing yearly.

According to report of NCRB[2] (National Crimes Record Bureau), 32022 rape cases were registered in 2019, that is, an average of 88 cases daily. In this scenario, there is a need to study thoroughly about one of the most heinous crimes, that is, rape.

Hence, in this Article we will go through the concept of rape, its constitutional provisions, punishments, amendments as well as bail provided in rape cases.

What is Bail under Indian legal system?

Bail is generally said to be the conditional release of a person accused of crime, for an amount, to be pledged for his appearance when the same is due in Court. The person paying money acts a surety. It is also called ‘Zamanat’.

In India, Section 436450 governs the provisions relating to bail under Code of Criminal Procedure, 1973. There are three types of Bails in India provided under law:

  • Regular Bail

Police has the power to arrest and investigate a person without warrant and take the person in their custody who is accused of a cognizable non-bailable offence.

A regular bail means the release of an accused from custody and ensure his presence at the trial. This is covered under Section 437439 of Criminal Procedure Code.

  • Interim Bail

This is a temporary or short-term bail that is granted while waiting for the application of regular or anticipatory Bail. In case the time expires before the accused grant regular or anticipatory Bail, it will be resulted in his loosing of freedom and taken back into custody.

  • Anticipatory Bail

This bail is given to the person who is in anticipation of being arrest for non-bailable offence by police. Section 438 Cr.P.C deals with the following type of bail.

It is to be noted that Section 375 and Section 376, that is Rape is a non-bailable offence in the eyes of Law.

How ‘Rape’ has been defined under Indian law?

The term ‘Rape’, its types as well as its punishments all are defined under Section 375 and Section 376 of the Indian Penal Code. The Section 375, IPC, defines the term rape as:

“A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:

(First) -Against her Will

(Second) -Without her consent

(Third) -With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt

(Fourth) -With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

(Fifth) -With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixth) -With or without her consent, when she is under sixteen years of age. It is explained that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.”

Also, there was also an exception regarding Section which was amended after the case of this Independent thought Vs. Union of India[3].

Initially, it was said that non-consensual sex with your wife (not younger than 15 years old) is not rape. But now, it has been changed with the age of 18 years. This means that ‘Marital Rape’ is a clear exception to giving consent since marital rape is not a crime under the Indian Pena Code.

What are the punishments for rape provided under Section 376 of Indian Penal Code and POSCO Act?

For punishment regarding Rapes, it is provided under Section 376 of the Indian Penal Code. It is as follows:

  1. “Whosoever, except in the cases provided for in sub-Section (2), commits rape, shall be punished with rigorous imprisonment of either description for term which shall not be less than seven years, but which may extend to imprisonment for life, or for a termwhich may extend to ten years and shall also be liable to fine, unless the women raped in his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for term which may be extended to two years or with fine or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
  2. Whoever,-
  3. being a police officer commits rape-

(i)Within, the limits of the police station to which police officer is appointed;or

(ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) On a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or

  1. Being a public servant, takes advantage to his official position and commits rape on a women in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or
  2. Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s Institution takes advantage of his official position and commits rape on any inmate of such a jail, remand home, place or institution; or
  3. Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a women in that hospital; or
  4. Commits rape, on a woman knowing her to be pregnant; or
  5. Commits rape on a woman when she is under twelve years of age; or
  6. Commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in judgment, impose a sentence of imprisonment of either description for a term not less than ten years.”

In 2019, Protection of Children from Sexual Offences Act, 2012, has been amended which states that in case of rape of girl under 16 years, the minimum punishment has been increased from 10 years to 20 years that can be extended to life.

Landmark cases introducing important amendments in Rape laws

Tukaram Vs State of Maharashtra, 1979[4]

Addition of Section 376A and 376D and burden of proof lied on the accused.

Also known as ‘Mathura Bai Rape case’ which was in context of custodial rape. It introduced the Criminal Law (Amendment) Act, 1983. Major changes brought in the context of rape through this amendment were:

    • Burden of Proof of proving that consent was present lies on the accused.
    • Custodial Rape brought in purview of rape under 376(2).
    • Section 376A-376D were added.
    • Disclosing identity of victim punishable (added Section 228A in IPC)

Mukesh and Anrs. Vs NCT Delhi (Nirbhaya Case), 2012[5]

Increase of punishments in case of rape, general seven years imprisonment to ten years.

This case also known as Anti-rape Act, resulted in introduction of Criminal Law (Amendment) Ordinance, 2013. This was based on recommendations of ‘Justice Verma Committee’. The recommendations were as follows:

  • Increased punishments for rape (not death penalty though).
  • Increased punishments for other sexual offences like Voyeurism, acid attacks etc.
  • Stricter provisions for registering complaints of rape.
  • Bill of Rights for women which gives dignity and respect to women over their choices of sexual relationships and for their sexual autonomy.

Mohd. Akhtar V. State of Jammu and Kashmir, 2018[6]

Increase in punishment for rape of minor girls especially below 16 years and 12 years of age.

The main objective of the case was to give harsher punishments to perpetrators of rape, especially for the rape of minor girl below 16 years and 12 years which resulted in Criminal law (Amendment) Ordinance, 2018. The changes brought were as follows:

  • Minimum punishment of rape increased from 7 years to 10 years.
  • Rape of a girl below 12 years of age has minimum 20 years punishment and upto death penalty.
  • Gang rape of a girl below 16 years is imprisonment for the rest of life.
  • If different punishments in Indian Penal Code and POSCO Act, 2012, then punishment which is higher will be given.

What can be the reasons for Bail under Section 376?

As mentioned above, Section 376 and 377 of Indian Penal code, 1860 is non-bailable offence under law. But in some cases, Bail is granted even in non-bailable case of Rape. According to analyzation, these can be:

  • False Charges

When it is observed by the court that the charges on the accused are falsely levied on him, in such a case the court can provide bail to the accused where he is free but has to be present on the due date of trial.

  • Lack of evidence

It has also been observed that when there is lack of evidence in any case, or charges against the accused have not been proved, the accused could be granted a bail. For Example Murthal gang Rape Case[7], in which due to lack of evidence, hearing was adjourned.

  • Case of Juvenile[8]

In case minor accused of rapes, are quite delicate because it can prove to be harsh and life devastating for the minor. Hence, in some cases the juveniles have been granted bail for children less than age of 18 years.

But after NIRBHAYA case, 2012, it was observed that the minor involved in that case was not taken as minor but was punished as adult. This lead to amendment in Juvenile Justice Act, 2015, which allow minor in the age group of 16-18 to be tried as adults if they commit heinous crimes.

Case Laws

  • Mohd. Hadid Vs State, 1989[9]

Delhi High Court Allowed a Rapist to scot-free merely because no marks found on the private part

Delhi High court allowed a rapist to let a free life only because there were no marks found the accused’s body even though the victim was only seven years old and had suffered bite marks on body and ruptured hymen. Even the Court did not considered eye-witness.

  • State Of Punjab Vs Gurmit Singh, 1996[10]

Court not allowed to make a person lose his Character

It was advised by the Supreme Court to the lower judiciary that even if a victim girl is shown habituated to sex, the Court should not describe her to be of loose Character. This is inhumane and against the morals.

  • Mathura Rape Case, 1978[11]

Passive submission due to fear induced by threats can’t be construed as consent for sexual intercourse

The session court’s judgement was held aside where they held the sixteen year old rape victim to be liar and said that she was willing to do sex, by the Bombay High court.

They exclaimed that since the consent was induced by fear, it was not a valid consent.

  • State of Maharashtra Vs Madhukar N. Mardikar, 1991[12]

Unchastity of women does not make her open to any person to violate her person

The Supreme Court in thios case observed that even if a women is unchaste, that gives no right to any person to violate her person as and when he wishes. She is equally entitled to the protection of law.

  • Priya Patel Vs State of Madhya Pradesh, 2006[13]

Can a woman rape Woman?

It was a narrow objective by Supreme Court saying that it is unimaginable for a woman to rape another woman but justice Verma Committee gave the view that each accused should be punished regardless of the gender.

  • N Radhabai Vs D. Ramchandran,1995[14]

No dismissal because of taking stand for abuse of girls to her own molestation

Radhabai protested against the minister for the abuse of girls in welfare institutions, then minister intended to molest her and dismissed her from the job.

There was sexual abuse of Radhabai, hence, the supreme Court took action against minister as well as let her position back with all perks.

  • Vishaka Vs State of Rajasthan,1977[15]

Sexual harassment identified as separate illegal behavior

This was a landmark judgement showing that sexual harassment should be identified as separate illegal behavior. The critical factor is unwelcome ness. The behavior so far can be direct as well as indirect from verbal humiliation to physical contact.

  • Chairman, Railway Board Vs Chandrima Das,2000[16]

Right to live with dignity harmed of a non-citizen, is same as of locals

The victim was a Bangladeshi National was raped by railway authorities was given Rs. 10 lakh compensation because of violation of both human rights as well as on the ground of domestic jurisprudence.

  • Sakshi Vs Union Of India, 2004[17]

The Supreme Court shed light on definition of rape

It was held that for rape to be held under Section 375 of IPC, only heterosexual intercourse, that is, pineal and vaginal penetration to be view in case of rape.

  • State Vs Sandeep, 2019[18]

Consent of sex on promise of marrying but not able to fulfill

The court held that A No means No and a yes means yes. But in the case the consent was not taken by force or coercion. Hence, can not be termed as rape.

  • RTI foundation Vs Union Of India,2015[19]

Consent of woman acquired by force and coercion amount to cruelty not rape

The Court ordered that the accusation of rape are not permitted between husband and wife by coercion of force, it can amount to cruelty though. This shows the real face of marital rapes in India.

  • Murthal Rape case, 2016[20]

No evidence leading to adjournment of case

The Murthal rape case was a gang rape case for about 10 women was alleged by the newspaper, since no evidence was found in the investigation of happening of any such event. Hence, the case was adjourned by court.

  • Kathua rape case, 2018[21]

Rape and murder case

An 8-year-old girl was raped and murdered in Rasana village near Kathua in Jammu and Kashmir. Report was files against eight men and serious actions were taken due to mass outrage.

Conclusion

In closing, we observed that rape is one of the most heinous crimes of the world. In India, Rape and its punishment is defined under Section 375 and 376 of the Indian Penal code, 1860 which is a non-bailable offence.

Then it is seen there are three types of bails in general defined under Sections 437 to sections 439 Criminal Procedure Code, that are Regular, Interim and Anticipatory.

Even if the Rape is unbailable offence, in some cases bails has been provided according to different circumstances. Also, various landmarks cases have led to amendments in different laws made from time to time as per changing society. The punishments have been made more rigorous as well as laws more rigid as amendment in case of minor.

But the actual question is why heinous crimes like rape and sexual assault have been increasing day by day. All this depends on various factors but the main is us, our psychology, our environment and thinking.

Hence, this is the area where amendment is actually needed!

References

  1. Ram Parmar,”Pearl V puri granted bail in rape case”, available at: hindustantimes.com (last visited on July 7th, 2021)
  2. National Crime records Bureau , “Crime in India-2019” (Ministry of Home Affairs,2019)
  3. Indepenent thought Vs. Union Of India, AIR (2017) SC 4904
  4. Tukaram and Another Vs. State of Maharshtra, AIR 1979 SC 185
  5. Mukesh and Anrs. Vs. NCT Delhi, (2017) 6 SCC 1
  6. Mohd. Akhtar Vs. State of Jammu and Kashmir, 2018 SCC Online SC 386
  7. Manisha Pande, “The Mystery of Murthal: From Mass Rape to No Rape”, available at: newslaundry.com (Last visited on July 8th, 2021)
  8. Kanchan Chaudhary, “Hc grants bail to juvenile sentenced for raping minor”, available at:hindustantimes.com(last visited on July 7th, 2021)
  9. Mohd.HabibVs. State,1989 Cr. L.J. 137 Delhi
  10. State of Punjab Vs.Gurmit singh, (1996) 2 SCC 384
  11. Mathura Rape Case, Tukaram,1978 Cr. L.J.1864 SC.
  12. State of Maharashtra Vs. Madhukar N. Mardikar, (1991) 1 SCC 57
  13. Priya Patel Vs. State of Madhya Pradesh,(2006) 6 SCC 263
  14. N.RadhabaiVs. D. Ramchandran, 1995 AIR 1476 1995 SCC (4) 141 JT 1995 (4)
  15. VishkhaVs. State of Rajasthan, (1997) 6 SCC 241
  16. Chairman, rRailway Board Vs. Chandrima Das, AIR, 2000 SC 988
  17. Sakshi Vs. Union of Indi, AIR 2004 SC 3566
  18. State Vs. Sandee, CRL.L.P. 532/2019
  19. RTI Foundation vs. Union of India, W.P.(C) No. 284/2015
  20. Murthal gangrapes: Delhi woman says 7 men raped her on Feb 22-23 night, case filed available at: indiatoday.in (last visited on July 7th, 2021)
  21. Mohd. Akhtar Vs. The State of Jammu and Kashmir, 2018 SCC 494