SC flags 'chilling effect' of insensitive judicial remarks in sexual assault cases, mulls guidelines

New Delhi, Dec 8 (PTI) Observing that insensitive judicial remarks in sexual assault cases can have a "chilling effect" on the victims, their families and society at large, the Supreme Court on Monday said it may consider issuing comprehensive guidelines for the high courts and the trial courts in making observations and issuing such orders in these cases.

A bench comprising Chief Justice Surya Kant and Justice Joymalya Bagchi, hearing the suo motu proceedings initiated after the court took cognisance of "insensitive" remarks laced with the March 17 order of the Allahabad High Court, was told by lawyers that several high courts have recently made similar oral and written observations in sexual assault cases.

Senior advocate Shobha Gupta, appearing for an intervenor, said recently in another case, the Allahabad High Court had remarked that since it was night, it was an "invitation" to the accused.

She also referred to other such cases from Calcutta and Rajasthan high courts.

Another lawyer pointed out a fresh incident from a trial court earlier on Monday, where despite an in-camera proceeding, "several people were present" and the survivor was allegedly harassed during the hearing.

"If you can cite all these instances then we can consider issuing a set of comprehensive guidelines. Any observations of this nature can have a chilling effect on victims, their families and the society at large… Also, at times, such modalities are also adopted to make them (victims) withdraw the complaints," the CJI said at the outset.

He said these are the remarks of the high courts, and these "kinds of observations at the trial court level must be going unnoticed and we would like to issue some comprehensive directions".

The bench asked the lawyers to submit brief written suggestions before the next date of hearing.

The bench had earlier taken suo motu cognisance of the March 17 order of the Allahabad High Court.

The high court had held that "mere" grabbing the breasts of a minor girl, breaking the string of her pyjama and attempting to pull down her lower garment were insufficient to infer an attempt to commit rape.

The CJI, referring to the facts of the instant case, said it will set aside the Allahabad High Court order and let the trial continue in the case.

The bench was pointed out that the high court has set aside the trial court order framing of charges under harsher provision of rape under the IPC and rather ordered framing of charges for lesser offence under Section 354B of the IPC which pertains to the offence of assaulting or using criminal force on a woman with the intent to disrobe her or compel her to be naked.

Section 354B is punishable with imprisonment for a period of three to seven years and a fine.

To ensure no prejudice to the survivor, the bench stayed the operation of the high court order, directing that if the trial court issues a summons, it must summon the accused under Sections 376 and 511 of the IPC and under POCSO, without being influenced by the high court's conclusions.

The bench, however, said that its directions on proceedings with the trial against the accused were not an indication of the guilt of the accused.

The bench also noted that the accused in the case had twice been served with notices by state agencies but failed to appear before the top court.

Senior advocate H S Phoolka, appearing for one of the petitioners, said the accused were regularly attending trial court proceedings and were fully aware of the matter before the apex court.

The court directed the SHO concerned to send the information to the accused and granted them the option to join proceedings on the next date, adding that the matter would not be adjourned for service issues thereafter.

The main case pertains to an incident where three men allegedly stopped a woman and her 14-year-old daughter.

The accused allegedly grabbed the minor's breasts, pulled the drawstrings of her lower garment and attempted to drag her beneath a culvert.

The Allahabad High Court, in its impugned order, had concluded that these facts were "not sufficient to draw an inference that the accused persons were determined to commit rape" and suggested lesser charges of assault (Section 354 IPC).

The top court had taken suo motu cognisance of the matter following a letter to the Chief Justice of India by the "We the Women of India" collective.

In an earlier hearing on March 26, a bench led by Justice B R Gavai had termed the high court's observations "totally unknown to the canons of law" and reflective of an "inhuman approach". PTI SJK SJK KSS KSS