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BAIL CONDITIONS IN RAPE CASES

Note: This article shall be read with new provisions of 'New Criminal Laws'.


This blog is written by Diya Runwal , she is a BA.LLB 2nd Sem law student at ILS Law College, Pune.

INTRODUCTION-


Rape as defined commonly is, unlawful sexual activity, most often involving sexual intercourse, against the will of the victim through force or the threat of force or with an individual who is incapable of giving legal consent because of minor status, mental illness, mental deficiency, intoxication, unconsciousness, or deception. It is seen as one of the most heinous crimes. Rape can be categorized in different types as according to the time place and situation of the occurrence, or by the number of people involved, or by the age of the victim, last but not the least by the reason for committing by the accused. In the Indian constitution section 375 and section 376 of the Indian Penal Code deals with the offense of rape. Section 375 states the conditions to be fulfilled if someone is said to commit a crime and Section 376 prescribes punishment for the offence of rape. Rape being a horrific crime against the human dignity is an non-bailable offence.
Section 439(1) of the IPC gives very wide discretion to the High court and the Court of Sessions in the matter of granting bail. The rules for granting bail to the accused are laid down in the Criminal Procedure Code, 1973, bail is basically release from restraint, more particularly, release from the custody of the police, an order of bail gives back to the accused freedom of his movement on condition that he will appear to take his trial, personal recognizance, surety bonds are the ways through which assurance is secured for an individual’s presence at the trial.

 

HISTORY


The term “bail” may be traced back to the old French word “Baillier”. Its true meaning is ‘to deliver’, ‘to hand over’, to set at liberty a person arrested or imprisoned’. According to the Concise Oxford English Dictionary , ‘bail’ means “ temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee his appearance in the court.” The history of bail conditions in rape cases in India has gone through many legal and socio changes.

  1. In pre-independent India  the Indian Penal Code (IPC) of 1860 governed laws concerning rape. The Code included rules on offenses, such as rape. In those days bail conditions for cases were decided by the magistrate or judge based on the situation and evidence presented.
  2. Following India's independence in 1947 the legal system continued to develop. The Criminal Law (Amendment) Act of 1983 brought about changes to laws regarding offenses like rape. The definition of rape was enlarged to encompass harsher punishments.
  3. The punishment prescribed in the penal code,1860(IPC) for this heinous offence prior to 1983 was imprisonment up to seven years, which could be for life or 10 years ,the need for change in the laws relating to rape gained momentum after the ‘Open Letter to chief Justice which had brought to the force the judicial bias against rape victim in Tukaram vs State.

CONTEMPORARY POSITION


Rape laws have been  introduced and strengthened over the last several decades in many countries around the world ,the personal and social consequences of rape for the victim have been given recognition and stressed in Judicial conditions, time and again in the Indian Context.
In contemporary times  before granting the bail many things are taken into consideration such as Gravity of the Crime : The degree of crime’s severity being the primary concern, due to the same courts being reluctant to grant bail as regards rape charges. However, where the evidence is not sufficient to hold a defendant, they may be bailed out.
Evidence And Investigation :The stage the investigations are in and how strong the case against an accused person is from critical parts too.
Probability of abscondment: How possible it is that the accused will run away or fail to appear in court is an important consideration.
Witness Intimidation: In case where there is any potential danger from the alleged perpetrator towards those who would testify against him/her such as through threatening their lives or interfering with somehow , release on bond becomes somehow unlikely.
Conditions for Bail in IPC Section 376 Cases-

●        Regular attendance in court

●        Restrictions on travel

●        Avoiding any contact with the victim or witnesses

●        Surrendering the passport.


CHALLENGES


The accused in women-related crimes being granted bail is the worst position. Itheir victims lay in hospitals fighting for their lives. In other cases it has also been found that after granting bail to an accused , he has attempted to intimidate the kins of the victim.There are also cases where the court has granted bail to the accused on the condition of marrying the victim ,which shows the patriarchal notions of the society.

Another challenge is that nowadays many fake cases of rape are coming up wherein the so called victim falsely accuses someone of the offence of rape to get some revenge or any other personal reasons. For example in the case of Gurmail Singh vs State of Punjab 2022, where a fake case was registered to blackmail the man. In such cases it becomes important to listen to the accused or to grant him bail if no prima facie evidence is found against the accused.

 

CASE LAWS


1.     Bikramjit Singh v. State of Punjab (2018): In this case, the Punjab and Haryana High Court conended that while bail is a rule and jail an exception, in cases of grave offenses like rape, strict conditions should be applied to make sure the well-being of the victim and witnesses, the court focused attention on  the importance of considering the seriousness of the offense and the odds of the accused tampering with evidence or exerting influence on witnesses when on bail.[11]
 
2.     Mukesh v. State (NCT of Delhi)[12]- The horrific gang rape and murder case of a woman in Delhi, in 2012 known as the Nirbhaya case triggered anger and led to significant legal changes. The 2013 amendment to the Criminal Law aimed to modify the Indian Penal Code (IPC) the Code of Criminal Procedure (CrPC) and other statutes concerning crimes. It included bail conditions, for rape cases requiring thorough review of bail requests and taking into account factors like the seriousness of the crime and the risk of evidence tampering by the accused.
 
 

LANDMARK JUDGEMENTS


Several landmark cases have shaped the legal landscape regarding bail conditions in rape cases. Here are a few notable ones
1.     Arnesh Kumar v. State of Bihar (2014): The Supreme Court of India formulated guidelines aimed to check the automatic arrest of accused in cases under Indian Penal Code’s Section 498A and other identical offences such as rape without reasonable investigation demanded by the circumstances therein, moreover, to prevent the law on stringent sectionality and avoid its misapplication due to lack of evidence, the police officer shall be required to adduce reasons while attaching condition with bail.[13]
 
2.     State of UP v. Amarmani Tripathi- The Supreme Court of India in this case said while granting bail in rape cases, the courts must take into consideration different factors like- the gravity and the nature of the offense, the reputation of the accused, the chances of the accused fleeing, the likelihood of interference with evidence, and the prima facie satisfactionof the court in relation to the accociation of the accused in the crime.[14]
 
3.     In State v. Captain Jagjit Singh, it was clarified by the Supreme Court that where an offense is non-bailable, bail has to be granted by taking into account further considerations and  and not as a general rule but only in exceptional cases.[15] 
These cases underscore the judiciary's approach to balancing the rights of the accused with the protection of victims in rape cases when determining bail conditions.
 
CONCLUSIONS

Ultimately , bail terms in matters of rape are significant in protecting society , providing equity for victims and upholding fairness as well as responsibility in the court system . Granting bail is a constitutionase and conditions of the victim  must all weigh heavily in this decision making process . Furthermore , legal systems need to deal with structural biases and obstacles which may impede access to justice for those who have survived sexual violence .

  1. Anne L. Barstow, ‘Rape’,(Brittanica) https://www.britannica.com/topic/rape-crime accessed 4 May 2024
  2. Javaid Talib and Dinesh Sharma,’Role of Police and judiciary in the prevention and control of rape’[2013-14] 21SCC 29.
  3. Takwani, Criminal Procedure (4th edn,LexisNexis 2015) 60
  4. Ved Kumari and Ravinder Barn ‘Sentencing in Rape cases: A critical Appraisal of Judicial Decisions in India’[ 2017] 59 JILI 1.
  5. State of Haryana v. Dharamraj [2023] SC, [2023] INSC 784
  6. R A Nelson, Indian Penal Code ( 12th edn 2018, LexisNexis) 3224
  7. ‘False cases of rape on rise’: Woman gets two-month jail’,(THE TIMES OF INDIA,22 MARCH 2024)< https://timesofindia.indiatimes.com/city/delhi/false-cases-of-rape-on-rise-woman-gets-two-month-jail/articleshow/108688804.cms> ACCESSED 6 May 2024.
  8. Bikramjit Singh v. State of Punjab[2018] SC 824,[2020] 10 SCC 616
  9. Mukesh v. State (NCT of Delhi)[2017] SC 533,[2017] 2 SCC 673
  10. Arnesh Kumar v State of Bihar [2014] SC 1277,[2014] SCW 3930
  11. State of UP V. Amarmani Tripathi & Ors [2005] SC 1248, [2005] 8 SCC 21
  12. Javaid Talib and Dinesh Sharma,’Role of Police and judiciary in the prevention and control of rape’[2013-14] 21 SCC 29.
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