Shiva Raj Kumar vs State by Mahadevpura Police Station

H. Billappa, J.—The petitioner who is accused in Crime No. 447/2014 of Mahadevpura police station has filed this petition under Section 439(1)(b) of Cr.P.C. praying to relax condition No. 1 to furnish local solvent surety and condition No. 2 to deposit interim compensation of Rs. 80,000/- payable to the victim as a condition precedent to release the petitioner on bail.

By order dated 12.12.2014, the Special Judge, XXXV Additional City Civil and Sessions Judge, Bengaluru, has granted bail to the petitioner in Crl.Misc. No. 6541/2014 subject to certain conditions. Condition Nos. 1 and 2 read as follows:

"(i) The accused shall execute a personal bond for Rs. 50,000.00 (Rupees Fifty Thousand only) with one local solvent surety to the satisfaction of this Court.

(ii) In addition to the above, the accused shall deposit interim compensation amount of Rs. 80,000.00 (Rupees Eighty thousand only) before this Court payable at once to the victim/complainant which is a condition precedent to release him on bail."

Aggrieved by the above conditions, the petitioner has filed this criminal petition praying to relax the above conditions.

The learned counsel for the petitioner contended that condition Nos. 1 and 2 imposed by the Special Judge, XXXV Additional City Civil and Sessions Jude, Bengaluru, are not permissible in law. The petitioner is ready to furnish surety of his Mother who is resident of Athikunte village, Mulabagilu Taluk. Similarly condition No. 2 to deposit a sum of Rs. 80,000/- by way of interim compensation is also not permissible in law. Therefore, condition Nos. 1 and 2 may be relaxed. He placed reliance on the decision of Hon''ble Supreme Court, SUO-MOTO writ petition (criminal) No. 24/2014.

As against this, the learned Government Pleader submitted that the Court has jurisdiction to award interim compensation to the rape victims. In so far as the condition No. 1 is concerned, the petitioner may be directed to furnish solvent surety to the satisfaction of the Court. In support of his submission he placed reliance on the following decisions;

"(i) Delhi Domestic Working Women''s Forum Vs. Union of India (UOI) and Others,

(ii) Shri Bodhisattwa Gautam Vs. Miss Subhra Chakraborty,

(iii) Mangilal Vs. State of Madhya Pradesh, "

I have carefully considered the submissions made by the learned counsel for the parties.

In so far as the condition No. 1 is concerned, the Trial Court has directed the petitioner to furnish one local solvent surety to the satisfaction of the Court. The petitioner is ready to furnish surety to the satisfaction of the Court. Therefore, the direction to furnish local solvent surety is unnecessary. The petitioner can furnish any surety to the satisfaction of the court.

In so far as condition No. 2 is concerned, the Hon''ble Supreme Court in Delhi Domestic Working Women''s Forum Vs. Union of India (UOI) and Others, , has laid down broad parameters in assisting the rape victims which reads as under;

"15. In this background, we think it necessary to indicate the broad parameters in assisting the victims of rape.

(1) The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well-acquainted with the criminal justice system. The role of the victim''s advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counselling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant''s interests in the police station represents her till the end of the case.

(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.

(3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

(5) The advocate shall be appointed by the Court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorized to act at the police station before leave of the Court was sought or obtained.

(6) In all rape trials anonymity of the victim must be maintained, as far as necessary.

(7) It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.

(8) Compensation for victims shall be awarded by the Court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape."

Following the above decision in Shri Bodhisattwa Gautam Vs. Miss Subhra Chakraborty, , the Hon''ble Supreme Court has observed as follows:

"18. This decision recognises the right of the victim for compensation by providing that it shall be awarded by the Court on conviction of the offender subject to the finalisation of Scheme by the Central Government. If the Court trying an offence of rape has jurisdiction to award the compensation at the final stage, there is no reason to deny to the Court the right to award interim compensation which should also be provided in the Scheme. On the basis of principles set out in the aforesaid decision in Delhi Domestic Working Women''s Forum, the jurisdiction to pay interim compensation shall be treated to be part of the over all jurisdiction of the Courts trying the offences of rape which, as pointed out above is an offence against basic human rights as also the Fundamental Right of Personal Liberty and Life." 10. It is clear, the Court trying the offence of rape has jurisdiction to award interim compensation. In Mangilal Vs. State of Madhya Pradesh, , the Hon''ble Supreme Court has observed while awarding the compensation to the victim an opportunity needs to be given to the accused person. In the present case, the Special Judge, XXXV Additional City Civil and Sessions Jude, Bengaluru has directed the petitioner to deposit a sum of Rs. 80,000/- as interim compensation payable to the victim as a condition precedent to release the petitioner on bail. It is not correct. While it is true the Court trying the offence of rape can consider granting of interim compensation as held in Shri Bodhisattwa Gautam Vs. Miss Subhra Chakraborty, , the accused needs to be heard before granting interim compensation. In the present case, the accused has not been heard. Therefore, condition No. 2 needs to be relaxed.

The court which tries the offence of rape can consider granting of interim compensation in terms of the decisions referred to above.

Accordingly, the following Order is passed:

"(i) Condition No. 1 imposed by the Special Judge, XXXV Additional City Civil and Sessions Jude, Bengaluru, in Crl.Misc. No. 6541/2014 directing the petitioner to furnish local solvent surety is modified directing the petitioner to execute a personal bond for a sum of Rs. 50,000/- with one surety for the like sum to the satisfaction of the Court.

(ii) In so far as condition No. 2 directing the petitioner to deposit interim compensation of Rs. 80,000/- is concerned, it is hereby set aside.

(iii) The other conditions imposed by the Special Judge, XXXV Additional City Civil and Sessions Judge, Bengaluru remain intact."

The Court which tries the offence can consider granting of interim compensation as indicated above.

The criminal petition is allowed as above.