Last week, a single-judge Bench of the Kerala High Court granted anticipatory bail to Malayalam filmmaker and actor Balachandra Menon in an alleged sexual assault case dating back to 2007. The decision comes against the backdrop of the Hema Committee Report released earlier this year, which exposed the sexual abuse and assault prevalent in the Malayalam film industry.
Following the report, multiple sexual assault allegations were made by numerous women from both within and outside the industry against prominent figures like Menon. Some complaints went on to be registered and cases were pursued.
While granting anticipatory bail to Menon, Justice Kunhikrishnan noted that the complaint had been registered by the victim 17 years after the alleged incident and that such a delay tarnished the credibility of the complaint. The court noted that the accused was a "known cine personality and a Padma Shri awardee".
The judge went on to say in court that "right and dignity is not only to women, but to men also" and went on to cite the delay in filing the complaint as reason enough to grant anticipatory bail in such cases.
The fact that the Judge made such a comment is deeply problematic, given that he was supposed only to assess if the application met the judicial standards for granting anticipatory bail under Section 438 of the CrPC (this case being covered under the old criminal laws).
Here, it is well established that an anticipatory bail application has to be scrutinised in the light of the nature and gravity of the accusation, the antecedents of the applicant, the possibility of the applicant fleeing from justice, and whether the accusation has been made with the object of injuring or humiliating the applicant.
These guidelines have been concretised in the landmark judgments of State vs Captain Jagjit Singh, and Puran vs Rambilas.
The Supreme Court in State of Punjab vs Gurmit Singh held that the delay in filing FIR in cases of sexual assault can be attributed to a variety of reasons, especially societal pressure that has a girl's dignity and reputation contingent on her 'sexual character'.
Whether the complaint came many years after the alleged incident, if the FIR is registered or whether there is material evidence proving guilt of the accused beyond doubt aren't questions to be answered at the stage of anticipatory bail. Yes, every accused person is entitled to raising these questions during trial. But delving into the credibility of a sexual assault complaint merely on the basis of delay in filing the complaint is not the function of the court at the stage of bail, and certainly not, at the stage of anticipatory bail.
In late November this year, the Kerala High Court decided another anticipatory bail application in favour of the accused — actor Baburaj — on the same grounds as in Menon's case.
In his reasoning, Justice CS Dias stated that the "inordinate" delay of six years in filing the FIR has not been satisfactorily explained by the complainant and he also cited the recent Supreme Court judgement in Siddique vs State of Kerala.
Interestingly, in Siddique's case, the same judge of the Kerala High Court had denied anticipatory bail to the actor after which he was reported to be absconding until his appeal in the Supreme Court was heard. Justice Dias then held that the survivor's statement and evidence are only to be evaluated at the stage of trial, and not while granting bail.
He further quoted the Gurmit Singh judgment to hold that sexual assault cases must be treated with sensitivity and the courts must keep in mind the various obstacles that the survivor needs to overcome to file a complaint. Most importantly, Justice Dias held that the contention that the delay vitiates the gravity of the complaint cannot be considered at the stage of bail.
This was in sharp contrast to the Supreme Court Judgement in Siddique vs State of Kerala by a bench of Bela Trivedi and Satish Chandra Sharma JJ, who while deciding in favour of Siqqique's appeal, observed that the delay of almost eight years after the alleged incident is a reason to accept the application for anticipatory bail.
The Kerala Police had argued that there is a "stockpile of evidence" against the actor and that he could use his influence to tamper with evidence and threaten witnesses. The police also reported to the court that the actor was on the run after the High Court order. And yet, Justice Trivedi had to ask the complainant, “You had the courage to post the complaint on Facebook but not to go to the police?"
The basic condition of granting anticipatory bail is that there shouldn't be a probability of the accused absconding. Despite the actor having been reported to have evaded the law before the hearing by going into hiding, the Supreme Court granted him anticipatory bail and in the process, managed to demoralise and degrade the survivor. The Supreme Court's decision could now allow other similarly placed actors to obtain anticipatory bail in this manner.
All that can then be said is that if in the pursuit of granting 'celebrity bail', the courts in India continue to harp on the need for the victims to complain instantly in cases of sexual assault, we are digging ourselves into a deep, dark hole. Many years of judicial evolution must definitely not be set back in this manner.
(Angela John is a student of law at Delhi University.)
