1 W.P.No.15591/2020 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.15591/2020 Dharmendra Jatav Vs. State of M.P., and others --------------------------------------------------------------------------------------- Shri A.S.Garg, Sr. Advocate assisted by Shri Arpit Oswal, Advocate for the petitioner. Shri Ankit Premchandani, Panel Lawyer for the respondents No.1 to 4/State. Shri A.K.Sethi, Sr. Advocate assisted by Shri Manoj Manav, Advocate for the respondent No.5. --------------------------------------------------------------------------------------- WHETHER APPROVED FOR REPORTING;YES Law laid down: (1) The offending sale was made vide registered sale deed dated 01/03/1994. The lease was originally granted to Kishanlal in the year 1966-67 after coming into force of the Madhya Pradesh Land Revenue Code, 1959 (for short 'the Code') and after his death, the name of his heir Narayan Jatav was entered by way of succession vide entry No.40/93-94 on 30/12/1993. Bhumiswami right was recorded on 10/01/1994 in favour of Narayan Jatav the father of the present petitioner. The bar or prohibition as contained under sub-section 7(b) of section 165 of the Code is with reference to the date of transfer and not the date of grant of patta (2) Since the ownership of land covered under the Code vests in the State Government, the revenue authorities under the Code have exclusive jurisdiction in respect of matters enlisted in section 257 of the Code and cancellation or omitting the entry with due notice to the other side upon acquisition of knowledge of void transaction; in violation of section 165(7b) of the Code. (3) A transaction from its very inception being in violation of law is a nullity and, therefore, void ab initio. A declaration in that behalf is not required by a Court of law; whereas in contrast, a transaction which otherwise is good act in the eyes of law, unless; avoided is a voidable act, i.e., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated and a party who alleges so is obliged to 2 W.P.No.15591/2020 prove it; seeking a declaration in that behalf in a Court of law. In other words, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would obviously be voidable. (4) A void transaction is bad in law from its very inception. No declaration to that effect is required. Therefore, the question of limitation does not arise in that behalf. (5) Section 257(1)(f) of the Code cannot be construed providing for substitution of name in revenue record arising out of inter se competitive claims of two parties over a entry / claim viz., instead it applies to cancellation / omission of entry upon acquisition of knowledge of the offending sale in violation of section 165(7b) of the Code. (6) Section 111 of the Code provides jurisdiction of the civil Court to decide the dispute inter se between two parties relating to right of records, where the State Government is not a party. Correction of record due to void transaction is not competitive claim of two rival parties. (7) A landless person extended the benefit of grant of lease / patta by the State Government or the Collector loses his status as such, in the event he transfers the land in violation of section 165(7b) of the Code. Therefore, on the analogy of section 111(g)(2) of the Transfer of Property Act, such person becomes liable for initiation of action for determination of lease by forfeiture through notice by the lesser/State Government and the subject matter of sale of land is liable for restoration to the State Government with correction of entry and taking over the possession by due process of law. Writ petition stands disposed of Significant paragraphs: 8 to 16 Reserved on: 11/12/2020 ORDER (19/01/2021) Rohit Arya, J., The controversy involved in this writ petition under Article 226 / 227 of the Constitution of India revolves around the scope, limit and dimensions of the provision contained under section 165(7-b) of the Madhya Pradesh Land Revenue Code, 1959 (for short, 'the Code'). For ready reference the provision is quoted below: W.P.No.15591/2020 "165. Rights of transfer.- (1) subject to the other provisions of this section and the provision of section 168 a bhumiswami may transfer any interest in his land. ... ... ... (7-b) Notwithstanding anything contained in sub-section (1), a person who holds land from the State Government or a person who holds land in bhumiswami rights under sub- section (3) of Section 158 or whom right to occupy land is granted by the State Government or the Collector as a Government lessee and who subsequently becomes bhumiswami of such land, shall not transfer such land without the permission of a Revenue Officer, not below the rank of a Collector, given for reasons to be recorded in writing." (Emphasis supplied) and collaterally section 158(3) of the Code. The relevant provision is quoted below: "158. Bhumiswami. (1) Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a bhumiswami by or under this Code, namely ... ... ... (3) Every person- (i) who is holding land in bhumiswami right by virtue of a lease granted to him by the State Government or the Collector or the Allotment Officer on or before the commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1992 from the date of such commencement, and (ii) to whom land is allotted in bhumiswami right by the State Government or the Collector or the Allotment Officer after the commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1992 from the date of such allotment, shall be deemed to be a bhumiswami in respect of such land and shall be subject to all the rights and liabilities conferred and imposed upon a bhumiswami by or under this Code : Provided that no such person shall transfer such land within a period of ten years from the date of lease or allotment and thereafter may transfer such land with the permission obtained under sub-section (7-b) of section 165. Explanation.-In this section, the expression "Ruler" and "Indian State" shall have the same meanings as are assigned to these W.P.No.15591/2020 expressions in clauses (22) and (15) respectively by Article 366 of the Constitution of India." 2. Agricultural land falling in survey No.465/40 admeasuring 2.023 hectare village Khilchipur, tehsil Khilchipur, District Rajgarh was leased out / patta to late Kishanlal s/o Nathulal Jatav in the year 1966-67 (for short, 'agricultural land') by the State Government. After his demise, the name of his son Narayan Jatav was mutated in the revenue record vide entry No.40/93-94 dated 30/12/1993. The mutation record suggests that on 10/01/1994, bhumiswami rights were conferred upon him. Vide registered sale deed dated 01/03/1994; the agricultural land was transferred by Narayan Jatav in favour of Jai Prakash (respondent No.5). However, the statutory prior permission as contemplated under section 165(7-b) of the Code was not obtained from the Collector. Pursuant to the aforesaid sale, the name of respondent No.5 was recorded in the revenue record at sl.No.74 on 02/04/1994. The Collector, Rajgarh had issued an order on 13/01/2012 directing the competent revenue authorities to check and verify such transaction of transfer of agricultural lands without obtaining prior permission under section 165(7-b) of the Code. 3. Petitioner is heir / successor of Narayan Jatav. On 02/11/2012, he submitted a complaint before the Sub Divisional Officer that the mutation / entry dated 02/04/1994 in favour of respondent No.5 be cancelled as the sale deed dated 02/04/1994 was in violation of the provision contained under section 165(7-b) of the Code. Upon receipt of the complainant, the report of the Tehsildar was called. Thereafter, the Sub Divisional Officer after notice to respondent No.5 had passed an order on 07/08/2014 (Annexure P/3) cancelling the entry in revenue record at sl.No.74 dated 02/04/1994 for the reason that the sale of agricultural land vide registered sale deed dated 02/04/1994 since was without obtaining prior permission of the Collector as contemplated under section 165 (7-b) of the Code is null and void. Therefore, the W.P.No.15591/2020 consequential revenue entry is also liable to be cancelled. 4. The respondent No.5 preferred an appeal before the Collector under section 44 of the Code. The appeal was held to be not maintainable as the order passed by the respondent No.4 was not the original order vide order dated 24/12/2018 (Annexure P/2). The second appeal preferred by respondent No.5 before the Commissioner has been allowed vide order dated 09/09/2020 (Annexure P/1). The second appellate authority was of the view that the lease / patta was granted to late Kishanlal in the year 1966-67, therefore, the bar against transfer of land without permission of the revenue authority not below the rank of Collector incorporated by Act No.15 of 1980 shall have no application. This is the impugned order in this writ petition. 5. Shri A.S.Garg, learned senior counsel contends that the applicability of bar against transfer of land / agricultural land, the relevant date shall be the date of transfer and not the date of grant of patta / lease by Government to the lessee. The lease was granted in the year 1966-67 in favour of late Kishanlal and bhumiswami rights were conferred upon his heir Narayan Jatav on 30/12/1993. Therefore, the transfer of agricultural land in favour of respondent No.5 vide registered sale deed dated 01/03/1994 without obtaining prior permission from the Collector under section 165(7-b) of the Code is bad in law. Therefore, the second appellate authority has committed serious illegality by allowing the appeal. As such, the impugned order is not sustainable in the eyes of law. Further elaborating his submissions, learned senior counsel referring to sub-section (3) of section 158 of the Code contends that bhumiswami rights by virtue of lease / patta granted to Kishanlal in the year 1966-67 by State Government is covered under section 165(7-b) of the Code. Hence, the date of grant of patta / lease is irrelevant and has no bearing over the controversy since the sale deed dated 01/03/1994 is in contravention of mandatory provision contained under section 165(7-b) of the W.P.No.15591/2020 Code, the same was null and void. To bolster the submissions, he has relied upon two division Bench judgments passed by this Court in the cases of Mulayam Singh and others Vs. Budhawa Chamar and others, 2002(2) MPLJ 480 and Saroj Chand Vs. Premwati and others, Writ Appeal No.345/2020 decided on 11/052020 at Gwalior Bench. Learned senior counsel referring to the judgment of division Bench in the case of Budhuwa Chamar Vs. Board of Revenue, M.P., and others, 2002(1) MPLJ Note 2 contends that the transfer or alienation of leased land / patta by State Government even after acquisition bhumiswami rights shall be void in the absence of prior permission of the revenue authority or the Collector as provided for under section 165(7-b) of the Code. The same proposition was followed by another division Bench of this Court in the case of Savina Park Resorts and Tours Pvt., Ltd., Vs. State of M.P., and others, (2012) 2 MPLJ 363. Lastly, he submits that the claim for omission of entry made in favour of respondent No.5 in the revenue record was well within the jurisdiction of the Sub Divisional Officer and subject matter covered under clause (f) of sub-section (1) of section 257 of the Code; an exclusive jurisdiction of the revenue authority. With the aforesaid submissions, learned senior counsel prays that the impugned order deserves to be set aside. 6. Per contra, Shri A.K.Sethi, learned senior counsel for the respondent No.5 submits that the jurisdiction under Article 226 and 227 of the Constitution of India predominantly is an equitable jurisdiction. Therefore, a person seeking judicial intervention through this jurisdiction must come with clean hands. In the instant case, the petitioner is son of late Narayan Jatav. In the agreement to sell dated 30/12/1993 between Narayan Jatav and Jai Prakash (respondent No.5); the petitioner appeared and signed as a witness to the said agreement. Narayan Jatav being recorded bhumiswami of the agricultural land has executed a registered sale deed dated 01/03/1994 in favour of the respondent No.5 with clear stipulation thereunder that there was no bar for the said sale under section 165(7-b) of the Code. W.P.No.15591/2020 Based upon the aforesaid sale deed dated 01/03/1994, the land was recorded in the name of respondent No.5 by the revenue authorities as bhumiswami on 02/04/1994. Almost after 19 years on 02/11/2012, the petitioner has taken a somersault and complained against the sale seeking amendment in the revenue entry purportedly on the ground that the aforesaid sale deed executed by his father in favour of respondent No.5 was null and void for want of prior permission of the Collector as required under section 165(7-b) of the Code. Learned senior counsel further contends that the Sub Divisional Officer had no jurisdiction to amend or omit the entry recorded in favour of respondent No.5, otherwise than in an appeal against the entry. Hence, the order passed by the Sub Divisional Officer on 07/08/2014 was bad in law. The appeal preferred by petitioner could not have been dismissed by the Collector vide order dated 24/12/2018 as not maintainable purportedly on the ground that the impugned order is not the original order. According to the learned senior counsel, the Sub Divisional Officer had exercised the original jurisdiction while ordering to omit the entry. The appeal arising therefrom under section 44 of the Code ought to have been entertained by the Collector. That was not done. In the alternate, it is submitted that in any case, neither the complaint nor the appeal could have have been entertained by the Sub Divisional Officer after 19 years of the transaction to the grave prejudice of the respondent No.5 and that too at the instance of the petitioner who had full knowledge of the transaction. Moreso, there was no application for condonation of delay in view of section 47 of the Code providing period of limitation for preferring an appeal. Learned senior counsel also contends that the mutation / revenue entry recorded on 02/04/1994 in favour of respondent No.5 could not have been omitted, unless; the sale deed dated 01/03/1994 executed in favour of respondent No.5 was set aside by the Court of competent jurisdiction since by virtue of the registered sale deed, the rights transferred in favour of respondent No.5 are crystallized and protected under section 54 of the Transfer of Property Act. He submits that even otherwise, W.P.No.15591/2020 the dispute / claim in respect to the record of rights as raised by the petitioner could have been addressed only by the civil Court of competent jurisdiction as provided for under section 111 of the Code. To bolster his submissions relied upon the following judgments: (i) A bunch of writ appeal and writ petitions, lead case being The State of M.P., and another Vs. Chaitanya Realcon Pvt. Ltd., WA No.23/2017 decided on 22/04/2017; (ii) Full Bench judgment reported in 2010(45) MPLJ 178, Ranveer Singh Vs. State of M.P., 7. Heard. 8. The Madhya Pradesh Revenue Code is a social welfare legislation made for protection of ownership rights of landless persons, particularly; various classes of weaker section; a constitutional obligation under Article 39(b) and 46 of the Constitution of India. Economic empowerment of such class of persons in fact is a step to achieve economic democracy, as agricultural land gives economic status to the tiller. The prevention of their exploitation due to ignorance or indigency is a constitutional duty of the State under section 46 of the Constitution of India. Sub-section (7-b) of section 165 of the Code was inserted vide Act No.15 of 1980 which contemplates that a 'government lessee' who subsequently becomes bhumiswami of such land shall not transfer such land without the permission of a revenue officer not below the rank of Collector as quoted above. The said section is further amended vide amending Act No.17 of 1992 with effect from 28/10/1992 and a corresponding amendment is incorporated as section 158(3) quoted above. A joint reading of both the provisions do suggest that a 'bhumiswami' who holds the right by virtue of lease granted to him by the State Government or the Collector under section 158 of the Code shall not transfer the land so leased or allotted without prior permission of a revenue officer not below the rank of Collector. W.P.No.15591/2020 9. The primary question emerging from rival contentions advanced by learned senior counsels is to determine the character of sale dated 01/03/1994 in the eyes of law; void or voidable?. 10. The expressions "void" and "voidable" have been subject matter of consideration on innumerable occasions by Courts. Law is now well settled. A transaction from its very inception being in violation of law is a nullity and, therefore, void ab initio. As a matter of fact, a declaration in that behalf is not required by a Court of law; whereas in contrast, a transaction which otherwise is good act in the eyes of law, unless; avoided is a voidable act, i.e., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated and a party who alleges so is obliged to prove it; seeking a declaration in that behalf in a Court of law. In other words, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would obviously be voidable [Judgments of Hon'ble Supreme Court in the cases of Dhurandhar Prasad Singh Vs. Jai Prakash University and others, (2001) 6 SCC 534 relied upon. De Smith, Woolf and Jewell in their treatise Judicial Review of Administrative Action, fifth edition, paragraph 5-044, has summarised the concept of void and voidable as follows: "Behind the simple dichotomy of void and voidable acts (invalid and valid until declared to be invalid) lurk terminological and conceptual problems of excruciating complexity. The problems arose from the premise that if an act, order or decision is ultra vires in the sense of outside jurisdiction, it was said to be invalid, or null and void. If it is intra vires it was, of course, valid. If it is flawed by an error perpetrated within the area of authority or jurisdiction, it was usually said to be voidable; that is, valid till set aside on appeal or in the past quashed by certiorari for error of law on the face of the record." W.P.No.15591/2020 In the instant case, the lease was originally granted to Kishanlal in the year 1966-67 after coming into force of the Code and after his death, the name of his heir Narayan Jatav was entered by way of succession vide entry No.40/93-94 on 30/12/1993. Bhumiswami right was recorded on 10/01/1994 in favour of Narayan Jatav the father of the present petitioner. The sale deed in favour of respondent No.5 was executed on 01/03/1994. In the considered opinion of this Court, the bar or prohibition as contained under sub-section 7(b) of section 165 of the Code is with reference to the date of transfer and not the date of grant of patta. The contention advanced to the contrary and as concluded by the Commissioner in the impugned order dated 09/09/2020 (Annexure P/1) is misconceived and misdirected. Hence, rejected. Therefore, the offending sale deed dated 01/03/1994 without prior permission of the Collector was void ab initio. The sale deed dated 01/03/1994 since has been held to be void for which no declaration in that behalf is required from a Court of law, the question of limitation as raised by learned senor counsel for the respondent No.5 is of no consequence and pales into insignificance. Hence, rejected. In the judgment reported in 2002(2) MPLJ 480 Mulayam Singh and another Vs. Budhawa Chamar and others; a division Bench in an authoritative pronouncement of law has ruled as under: "It is not in dispute that no permission from the Collector was obtained and the sale was made without the permission of Collector. The respondent cannot transfer his land even though he is declared Bhumiswami, without the permission of the Collector. Transfer was made without such permission, so the appellants will not get any legal rights. In the circumstances, the Additional Collector has rightly held that the sale was in contravention of the provisions of section 165(7-B) of the Code and is void. Mutation effected on the basis of sale was set aside and the land was directed to be recorded in the name of the respondent No.1." The view of this Court in the matter of alienation of land without permission under section 165(7b) of the Code finds W.P.No.15591/2020 support from the judgment of the Hon'ble Supreme Court in the case of Keshabo and another Vs. State of M.P., and others, (1996) 7 SCC 765 and a division Bench of this Court in the case of Mulayam Singh and another (supra). At this stage it is appropriate to reiterate the legal connotation of word "bhumiswami" as perceived by a Full Bench of this Court in the case of Ramgopal Kanhaiyalal Vs. Chetu Batte AIR 1976 MP 160 and held as under: "14. It must be remembered that a Bhumiswami has a title though he is not the "Swami" of the "Bhumi" which he holds, in the sense of absolute ownership of land vests in the State Government, yet, he is a Bhumiswami. He is not a mere lessee. His rights are higher and superior. They are akin to those of a proprietor in the sense that they are transferable and heritable, and he cannot be deprived of his possession, except by due process of law and under statutory provisions, and his rights cannot be curtailed except by legislation." as affirmed by Hon'ble Supreme Court in (2000) 3 SCC 668 Rohini Prasad and others Vs. Kasturchand and another & (2005) 10 SCC 124 Hukum Singh (Dead) by LR., and others Vs. State of M.P., as well as by a division Bench of this Court reported in 2012(2) MPLJ 363 Savina Park Resorts and Tours Pvt. Limited Vs. State of M.P., and others. Since, the ownership of land covered under the Code vests in the State Government. The revenue authorities under the Code have exclusive jurisdiction in respect of matters enlisted in section 257 of the Code and the jurisdiction of the civil Court is ousted in that behalf. The cancellation of an entry in the revenue record on a complaint or otherwise in relation to transfer of land without permission of the Collector under sub-section 7(b) of section 165 of the Code cannot be construed substitution of name in revenue record arising out of inter se competitive claims of two parties over a entry / claim. This exercise, therefore, has rightly been carried out by a revenue officer under section 257(1)(f) of the Code. Section 111 of the Code provides jurisdiction of the civil W.P.No.15591/2020 Court to decide a dispute inter se between two private parties relating to any right recorded in the record of rights, where the State government is not a party. This provision has no application in the facts and circumstances of the case. The Sub Divisional Officer on a complaint by the petitioner has cancelled / omitted the entry No.74 dated 02/04/1994 recorded in favour of respondent No.5 by order dated 07/08/2014 (Annexure P/3) on the premise that the sale in favour of respondent No.5 vide sale deed dated 01/03/1994 was contrary to section 165(7-b) of the Code and also bearing in mind the general directions issued by the Collector on 13/01/2012. The contention of learned senior counsel for the respondent No.5 is that unless; appeal was preferred against the entry made in revenue record on 02/04/1994 (supra), the Sub Divisional Officer had no jurisdiction to cancel or omit the entry vide order dated 07/08/2014 is held to be misconceived for the reason that the Sub Divisional Officer upon acquisition of knowledge of void transaction,viz., sale deed dated 01/03/1994 has cancelled / omitted the entry with due notice to the respondent No.5. Records of rights can always can be corrected if prohibited in law or polluted by a void act in the eyes of law. Consequently, there was no illegality in the order of the Sub Divisional Officer dated 07/08/2014 (Anneuxre P/3) amending / omitting the entry at sl.No.74 on 02/04/1994 made pursuant to the sale deed dated 01/03/1994 in favour of respondent No.5 while exercising the power under section 257(1)(f) of the Code. 11. Now the following two questions arise for consideration: (i) Whether on the facts and in the circumstances of the case, the name of petitioner should be continued in the revenue record?; and (ii) Whether, he is entitled for restoration of possession of the land in question? 12. The demeanour and conduct of the petitioner is relevant to answer these questions. The petitioner is a witness to the agreement to sell dated 30/12/1993 between Narayan Jatav and Jai Prakash (respondent No.5). The sale deed executed on W.P.No.15591/2020 01/03/1994 by Narayan Jatav in favour of respondent No.5 was well within the knowledge of the petitioner. Thereafter, in the year 2012, a complaint was made by the petitioner with an ulterior motive to achieve the collateral purpose for his own benefit. Nevertheless, the cacellation or omission of entry in favour of respondent No.5 based on void sale deed dated 01/03/1994 by the Sub Divisional Officer shall not enure benefit to the petitioner. 13. Though the provisions of Transfer of Property Act (for short, 'the T.P.Act") under Chapter V are not applicable in absence of notification by the State Government in the official gazette to the contrary as provided under section 117 of the T.P. Act, however, principles underlying provisions of T.P. Act have been made applicable for agricultural leases on touchstone of justice, equity and good conscience. In particular, the provision as to the 'forfeiture' contained under section 111(g)(2) of T.P.Act has been so applied by various High Courts. The Madras High Court in the case of Umar Pulavar Vs. Dawood Rowther, AIR 1947 Mad. 68 has held as under: "It is for the purpose of attenuating the rigour of the law as thus interpreted and applied in such decisions that Section 111(g) was amended in 1929 and it was made clear that even in the case of forfeiture by denial of the landlord's title a notice in writing determining the lease must be given. The principle so embodied in the section as a result of this amendment becomes, so to say, a principal of justice, equity and good conscience which must be held to govern even agricultural leases, though under Section 117 of the Act they are exempt from the operation of the chapter. To hold that with reference to agricultural leases previous notice determining the tenancy is not necessary is to ignore the policy of the Act as disclosed by the amendment which was intended to afford all tenants greater protection than what was afforded by the decisions which interpreted Section 111(g) as it originally stood. It is reasonably clear that if notice is necessary with reference to non-agricultural leases it is still more necessary in the case of agricultural leases where larger interests are at stake, generally speaking, and where in the absence of a proper notice to quit the right to the standing crops raised by the tenants might itself become a subject of dispute as between them and the landlord." Relied upon by Bombay High Court in the case of Tatya W.P.No.15591/2020 Savla And Ors. vs Yeshwant Kondiba And Ors., AIR 1951 Bom. 283 & Andhra Pradesh High Court in the case of Cheekati Kuriminaidu & Ors vs. Karri Padmanabham Bhukta and othrs, AIR 1964 And. Pra. 539. 14. A lease / patta was granted to late Kishanlal in the year 1966-67 for providing means of livelihood; a landless person for his economic empowerment through ploughing and cultivating the field. To ensure protection against exploitation due to ignorance or indigency, section 165(7-b) was inserted in the year 1980 with further amendment vide amending Act No.17 of 1992 with effect from 28/10/1992. Therefore, conscious transfer of land on 01/03/1994 by Narayan Jatav in favour of respondent No.5 to which petitioner is also party (witness for agreement to sell dated 30/12/1993) setting up title in a third person in violation of section 165(7-b) of the Code; renders the lease liable for determination by forfeiture, in view of sub-clause (2) of clause (g) of section 111 of the T.P.Act. For ready reference the said clause is quoted below: 111. Determination of lease. A lease of immovable property determines.- ... ... ... (g) by forfeiture:- ... ... ... (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; 15. In the obtaining facts and circumstances, the petitioner has lost the status of landless person. The technical objection / contention of the learned senior counsel for the petitioner is that the lis between the parties does not embrace such eventuality and after setting aside the impugned order, the consequences flowing therefrom shall enure benefit to the petitioner. The argument advanced is in despair and devoid of substance. The conduct and demeanour of the petitioner & obtaining facts and circumstances do attract the maxim; "Nullus commodum capere ptest de injuria sua propria" (No man can take advantage of his own wrong), it is one of the salient tenets of equity. Hence, the petitioner is not held entitled to secure the assistance of the Court of law for enjoying the fruit of his own W.P.No.15591/2020 wrong. The Hon'ble Supreme Court in the case of Ashok Kapil Vs. Sana Ullah (Dead) and others, (1996) 6 SCC 342 held in paragraphs 7 and 12 as under: "7. If the crucial date is the date of allotment order, the structure was not a building as defined in the Act. But can the respondent be assisted by a court of law to take advantage of the mischief committed by him? The maxim ""Nullus commodum capere ptest de injuria sua propria" (No man can take advantage of his own wrong) is one of the salient tenets of equity. Hence, in the normal course, the respondent cannot secure the assistance of a court of law for enjoying the fruit of his own wrong. 12. The upshot is, if the District Magistrate has commenced exercising jurisdiction under Section 16 of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, in respect of a building which answered the description given in the definition in Section 3(i), he would well be within his jurisdiction to proceed further notwithstanding the intervening development that the building became roofless. We are inclined to afford such a liberal interpretation to prevent a wrongdoer from taking advantage of his own wrong." The Hon'ble Supreme Court in the case of Eureka Forbes Limited Vs. Allahabad Bank and others, (2010) 6 SCC 193 has observed as under: "66. The maxim "Nullus commodum capere ptest de injuria sua propria" has a clear mandate of law that, a person who by manipulation of a process frustrates the legal right of others, should not be permitted to take advantage of his wrong or manipulations. In the present case, Respondents 2 and 3 and the appellant have acted together while disposing off the hypothecated goods, and now, they cannot be permitted to turn back to argue, that since the goods have been sold, liability cannot be fastened upon Respondents 2 and 3 and in any case on the appellant. ....." Therefore, in exercise of the equitable jurisdiction under Article 226 of the Constitution of India and regard being had to the concept of justice, equity and good conscience, it is considered apposite to direct the respondent / State to issue notice to the petitioner as against termination of lease drawing analogy under sub-clause (2) of clause (g) of section 111 of the T.P.Act. For restoration of possession, the State is also directed to initiate the W.P.No.15591/2020 action against respondent No.5 by due process of law. Let the entire exercise be completed within a period of six months from today. 16. Resultantly, the order passed by the Commissioner dated 09/09/2020 (Annexure P/1) is set aside. Writ petition stands allowed in part with the aforesaid directions. No order as to cost. (Rohit Arya) Judge 19-01-2021 Sh SEHAR HASEEN Digitally signed by SEHAR HASEEN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=900ec6fc757798eaeb3df7a32860bd3298415a4d1c2 d91436213f2568c8f27da, serialNumber=e7dbba955b262c04b8413251ce7fb6f0b7dba6 10c57f1559c08bf6c6f5dd40d4, cn=SEHAR HASEEN Date: 2021.01.19 18:34:34 +05'30'


1 REPORTABLE IN THE SUPREME COURT OF INDIA (CRIMINAL APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 329 OF 2021 [@ SPECIAL LEAVE PETITION (CRL.) NO. 2531 OF 2021] (ARISING OUT OF S.L.P. (CRL.) DIARY NO. 20318 OF 2020) APARNA BHAT & ORS. …APPELLANT (S) VERSUS STATE OF MADHYA PRADESH & ANR. ….RESPONDENT(S) JUDGEMENT S. RAVINDRA BHAT, J. A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view.” – Henrik Ibsen 1. Leave granted. The appellants are public-spirited individuals, concerned about the adverse precedent set by the imposition of certain bail conditions in a case involving a sexual offence against a woman; they impugn a part of the judgment of the Madhya Pradesh High Court1 that imposed these bail conditions. With the consent Signature Not Verified Digitally signed by of counsel for the parties, the appeal was heard finally. The appellants also filed an DEEPAK SINGH Date: 2021.03.18 16:24:26 IST Reason: 1 In Vikram v. The State of Madhya Pradeshin MCRC 23350/ 2020, dated 30.7.2020 application2, seeking directions that all the High Courts and trial Courts be directed to refrain from making observations and imposing conditions in rape and sexual assault cases, at any stage of judicial proceedings, that trivialize the trauma undergone by survivors and adversely affect their dignity. Certain intervenors also preferred an application in support of the appeal, seeking clear directions to all Courts to refrain from imposing “irrelevant, freaky or illegal bail conditions”. 2. Ibsen, the prescient nineteenth century author, made a powerful statement (quoted as the epigram at the beginning of this judgment); sadly, even today, in the twenty first century, after 70 years as a republic with the goal of equality for all, many courts seem to be oblivious of the problem. In a sense, this judgment is not as much about only the merits of the impugned conditions of the bail order, but is meant to address a wider canvas of (what appears to be) entrenched paternalistic and misogynistic attitudes that are regrettably reflected at times in judicial orders and judgments. 3. The brief facts of the case are that on 20.04.2020 at about 2.30 a.m., the accused-applicant, a neighbour of the complainant, entered her house and caught hold of the complainant’s hand, and allegedly attempted to harass her sexually. Accordingly, Crime No. 133/2020 was registered at Police Station, Bhatpachlana, District-Ujjain for the offences punishable under sections 452, 354A3, 323 and 506 of the Indian Penal Code (IPC). The case was investigated and a charge sheet was filed. The accused filed an application under Section 438 of Code of Criminal Procedure, 1973 (hereafter “CrPC”) seeking pre-arrest bail. The High Court, by the impugned 2Crl. M.P No. 102226/2020 3Section 354A reads as follows: “354A. Sexual harassment and punishment for sexual harassment.— (1) A man committing any of the following acts— (i) physical contact and advances involving unwelcome and explicit sexual overtures; or (ii) a demand or request for sexual favours; or (iii) showing pornography against the will of a woman; or (iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment. (2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. (3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.” order, even while granting bail to the applicant imposed the following condition which is under challenge in this petition. (i) “The applicant along with his wife shall visit the house of the complainant with Rakhi thread/ band on 3rd August, 2020 at 11:00 a.m. with a box of sweets and request the complainant -Sarda Bai to tie the Rakhi band to him with the promise to protect her to the best of his ability for all times to come. He shall also tender Rs. 11,000/- to the complainant as a customary ritual usually offered by the brothers to sisters on such occasion and shall also seek her blessings. The applicant shall also tender Rs. 5,000/- to the son of the complainant – Vishal for purchase of clothes and sweets. The applicant shall obtain photographs and receipts of payment made to the complainant and her son, and the same shall be filed through the counsel for placing the same on record of this case before this Registry. The aforesaid deposit of amount shall not influence the pending trial, but is only for enlargement of the applicant on bail.” 4. The appellants submit that the expressions “in the interest of justice”, “such other conditions court considers necessary” and “as it may think fit” as provided in the bare text of the Section 437(3)(c) as well as Section 438(2)(iv) of the CrPC, give discretion to the Courts to impose such other conditions as may be required in the facts of a particular case, but those conditions have to be in consonance with the other conditions in the provisions, the purpose of granting bail and no other consideration. 5. The appellants cite Kunal Kumar Tiwari v. State of Bihar4 and Sumit Mehta v. State (NCT of Delhi)5 and argue that this court’s observations in those decisions must be followed by every court while considering and dealing with bail applications. They also rely on the observations made in para 18 of State of M.P v. Madanlal,6 and urge that in cases of sexual offences, the idea of compromise, especially in the form of marriage between the accused and the prosecutrix is abhorrent, and should not be considered a judicial remedy, as it would be antithetical to the woman’s honour and dignity. Likewise, reliance was placed on Ramphal v. State of Haryana7, where the 4 (2018) 16 SCC 74 5 (2013) 15 SCC 570 6 (2015) 7 SCC 681 7Crl. A. No. 438/2011decided on 27.11.2019 court took note of the compromise between the survivor and accused, but found that such compromise is of no relevance when deciding on cases of rape and sexual assault. 6. The appellants brought to the notice of this Court, various decisions and orders where the observations made by the judges in offences against women including cases under the Protection of Children from Sexual Offences Act, 2012 (POCSO) were extraneous. The appellants submitted that the courts, in many cases, especially under the POCSO Act, granted bail on the plea that an agreement to marry had been reached between the accused and prosecutrix. Additionally, they also submitted that while adjudicating matters of sexual harassment and rape, judges have made shocking remarks on the character of the prosecutrix. 7. Reference is made to Ravi Jatav v. State of M.P8, where the High Court of Madhya Pradesh, while granting bail (to an accused of committing offences under Sections 376-D, 366, 506, 34 IPC) imposed conditions that the accused “shall register himself as a Covid-19 Warrior” and was to be assigned work of Covid-19 disaster management at the discretion of the District Magistrate. In Rakesh B. v. State of Karnataka9, the Karnataka High Court granted bail to an accused alleged to have committed offences under Sections 376, 420, 506 IPC and Section 66-B of the Information Technology Act, 2000 (“IT Act”), and made remarks on the survivor’s conduct. The relevant extract is produced below: “c) nothing is mentioned by the complainant as to why she went to her office at night, that is, at 11 PM; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning; the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished;” 8. The appellants submit that no observation/condition should be made in any judgment, or orders which reflects bias of the judge or affects the dignity of a woman 8 MCRC No. 13734/2020 order dated 19.05.2020 passed by Madhya Pradesh High Court. 9Crl. P. No. 2427/2020, order dated 22.06.2020 passed by High Court of Karnataka. or affects the conduct of the trial in a fair and unbiased manner. They highlight that the impugned order, while granting bail, imposed a condition that the applicant shall visit the house of the complainant. The appellants submit that this is unacceptable and no observation/condition should be made which permits the accused to meet/have access to the survivor and her family members. 9. The appellants also cite Mohan v. State10, where the Madras High Court had referred the case of rape of a minor to mediation and observed that the case was fit for attempting a compromise between the parties. Likewise, Samuvel v. Inspector of Police11is cited, where the High Court of Madras referred to mediation, a case of rape where the prosecutrix was a minor and had become a mother of a child as a consequence of rape, because the accused agreed to marry her. It is urged that no observation/condition should be made which initiates or encourages compromise that disparages and downgrades an otherwise heinous crime thus indicating that such offences are remediable by way of a compromise/ by marriage. 10. Sopikul Sk. @ Safikul Islam v. State,12 an order of the High Court of Calcutta in a POCSO case granting bail is cited; here, relief was given to the accused since the prosecutrix had attained majority and the accused intended to marry her. Further, in the case of Gyanaranjan Behera v. State of Odisha,13 the Orissa High Court in a POCSO case granted interim bail to the accused for the purpose of marrying the prosecutrix. In Suraj Kushwah v. State of M.P,14the Madhya Pradesh High Court granted temporary bail to the accused for a crime under sections 376 (2)(n), 506 IPC read with Sections 3(1) (W-II), 3(2)(V), 3(2)(v-a) of the SC/ST (Prevention of Atrocities) Act, 1989 for the purpose of solemnizing marriage with the prosecutrix. The appellants submit that in POCSO and rape cases, no observation/condition 10 M.P No. 2/2014 in Crl. A No. 402/2014 order dated 18.06.2015 11Crl. O.P. No. 1881/2015. 12 CRM No. 2961/2020 Order dated 16.04.2020 of the Calcutta High Court 13 BLAPL No. 2596/2020 Order dated 02.06.2020, passed by Orissa High Court. 14 CRA No. 3353/2020 Order dated 02.09.2020 passed by the Madhya Pradesh High Court should be made, which takes note of the fact that the survivor has attained majority and that the accused has offered to marry her. 11. Vikas Garg v. State of Haryana15, by the High Court of Punjab is cited, where the court granted bail to three persons accused of committing offences under Sections 376D, 376(2)(n), 376, 292, 120-B, 506 IPC and Section 67 of the IT Act, and made observations regarding the prosecutrix’s “casual relationships”,“promiscuous attitude”, “voyeuristic mind”, etc. The appellants submit that no observation/condition should be made which grants bail on the ground that the victim is of “loose character” or is “habituated to sexual intercourse.” 12. Counsel for the Intervenors submitted that under sections 437(2) and 438, the power to impose conditions have been expressed in very wide terms by using the phrase “any condition.” Recently, High Courts while granting bail under these sections have started imposing irrelevant conditions. The Intervenors have annexed around twenty-three orders in which such conditions for bail were imposed. They argue that the conditions that can be imposed under the law are clearly laid down by the Supreme Court in the case of Munish Bhasin v. State16 and reiterated in Parvez Noordin Lokhandwalla v. State of Maharashtra.17 Accordingly, it is clear that imposing conditions like rendering community service in COVID hospitals or in any other institution, plantation of trees, contributing to any particular charity relief fund, etc. is impermissible in law. The Intervenors further submit that the accused, during pendency of the trial are presumed innocent and their guilt is as yet to be adjudicated by the Court. Imposition of conditions like compulsive community service, etc. is violative of the right to equality and personal liberty, including procedure established by law in the Indian Constitution. 13. The Intervenors also submit that the Court while deciding a bail application, cannot assume the role of a social reformer or fund raiser for charities and impose 15Cr. M. No. 23962/2017, order dated 13.09.2017 passed by the Punjab and Haryana High Court 16(2009) 4 SCC 45 17(2020) 10 SCC 77 conditions which have no nexus with the offense or relevance with the object of the bail provisions. 14. It was submitted that in IA No. 102226/2020, the appellants have brought to the notice of this Court, several other instances in which similar directions have been made by High Courts and Trial Courts across the country. Such wide prevalence necessitates the urgent intervention of this Court to firstly, declare that such remarks are unacceptable and have the potential to cause grave harm to the prosecutrix and the society at large, secondly, reiterate that judicial orders have to conform to certain judicial standards, and thirdly, take necessary steps to ensure that this does not happen in the future. 15. It was further submitted that this Court should intervene and issue directions or guidelines on bail and anticipatory bail to ensure that courts impose only those conditions as are permissible in law. Further, this Court was urged to issue directions on gender sensitization of the bar and the bench, particularly with regard to judicial empathy for the prosecutrix. 16. The learned Attorney General, who had been issued notice in this matter, made his submissions in support of the appeal; he also filed a detailed note suggesting the steps that should be taken to sensitize all stakeholders, especially courts, while dealing with offences against women. Highlighting the observations made in Kunal Kumar (supra), Sumit Mehta (supra), State of Punjab v. Gurmit Singh18 and Sakshi v. State19, the learned Attorney General submitted that while relying upon the observations made in the above-mentioned cases, the court may highlight that in cases of crimes against women, the following additional considerations may be kept in mind: i. Bail conditions should not mandate or even permit contact between the accused and the victim. 18 (1996) 2 SCC 384 19 (2004) 5 SCC 518 ii. Bail conditions must seek to protect the complainant from any harassment by the accused. iii. Where considered necessary, the complainant/prosecutrix may be heard on whether there is any peculiar circumstance which may require additional conditions for her protection. iv. Wherever bail is granted, the complainant may immediately be informed that the accused has been granted bail. v. Bail conditions must be free from stereotypical or patriarchal notions on women and their place in society, and must strictly be in accordance with the requirements of the CrPC. vi. The Courts while adjudicating a case, should not suggest or entertain any notions (or encourage any step) towards compromises between the prosecutrix and the accused to get married, as it is beyond their powers and jurisdiction. 17. On gender equality and gender sensitization, the Attorney General argued that to achieve the goal of gender justice, it is imperative that judicial officers, judges, and members of the bar are made aware of gender prejudices that hinder justice. Accordingly, he submitted that the foremost aspect to facilitate a gender sensitive approach, is to train judges to exercise their discretion and avoid the use of gender- based stereotypes while deciding cases pertaining to sexual offences. Secondly, judges should have sensitivity to the concerns of the survivor of sexual offences. 18. Reliance was placed on the Bangkok General Guidance for Judges on Applying a Gender Perspective in South East Asia, by the International Commission of Jurists. It was pointed out that the following stereotypes are often encountered in the course of judicial decision-making and should be avoided: - i. Women are physically weak; ii. Women cannot make decisions on their own; iii. Men are the head of the household and must make all the decisions related to family; iv. Women should be submissive and obedient; v. Good women are sexually chaste; vi. Every woman wants to be a mother; vii. Women should be the ones in charge of their children; viii. Being alone at night or wearing certain clothes make women responsible for being attacked; ix. Women are emotional and often overreact or dramatize hence it is necessary to corroborate their testimony; x. Testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and xi. Lack of evidence of physical harm in sexual offense case means consent was given. 19. The Attorney General submitted that training for gender sensitization for judges at all levels of the judiciary should mandatorily be conducted at regular intervals by the National Judicial Academy and State Judicial Academies. He emphasized that any directions towards gender sensitization should include judges of all levels of the judiciary. Further, the counsel urged that courses on gender sensitization should be included in the curriculum of law schools, and the All-India Bar Exam should include questions on gender sensitization as well. In addition to this, he recommended that a detailed curriculum may be prepared with the help of subject matter experts by each High Court, to be a part of the syllabus for the Judicial Services Exams and training for inducted judges. Nature of the beast20: the problem 20. Women often experience obstacles in gaining access to mechanisms of redress, including legal aid, counselling services and shelters. They are re-victimized and exposed to further risk of violence through the denial of redress in the context of informal trials or negotiations between families and community leaders. The payment of financial compensation by the perpetrator or his family for acts of violence against women, in lieu of legal remedies, was a recurrent concern vis-à-vis the formal and informal justice systems. Violence against women in India is systematic and occurs in 20 A phrase that means the traits inherent to a thing or situation, especially a negative or difficult one (See https://idioms.thefreedictionary.com/the+nature+of+the+beast) the public and private spheres. It is underpinned by the persistence of patriarchal social norms and inter- and intra-gender hierarchies. Women are discriminated against and subordinated not only on the basis of sex, but on other grounds too, such as caste, class, ability, sexual orientation, tradition and other realities.21 21. Gender violence is most often unseen and is shrouded in a culture of silence. The causes and factors of violence against women include entrenched unequal power equations between men and women that foster violence and its acceptability, aggravated by cultural and social norms, economic dependence, poverty and alcohol consumption, etc. In India, the culprits are often known to the woman; the social and economic "costs" of reporting such crimes are high. General economic dependence on family and fear of social ostracization act as significant disincentives for women to report any kind of sexual violence, abuse or abhorrent behaviour. Therefore, the actual incidence of violence against women in India is probably much higher than the data suggests, and women may continue to face hostility and have to remain in environments where they are subject to violence. This silence needs to be broken. In doing so, men, perhaps more than women have a duty and role to play in averting and combating violence against women. 22. Unlike many other victims of interpersonal crimes such as theft, robbery or muggings, survivors of sexual assault are vulnerable to being blamed for their attack, and thus victim-blaming (overtly or in more subtle forms) in sexual assault cases has been the focus of several writings. Myths and stereotypes “underlie and fuel sexual violence against women and inform negative societal reactions”.22 Joanne Conaghan points out pertinently that “removing the doctrinal debris of a legally instituted gendered hierarchical order does not necessarily get rid of deeply ingrained social 21Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, on her Mission to India (22 April to 1 May, 2013) A/HRC/26/38/Add.1 (accessible at www.ohchr.org › Documents › A-HRC-26-38-Add1_en) 22 Shannon Sampert, "Let Me Tell You a Story: English-Canadian Newspapers and Sexual Assault Myths" (2010) 22:2 Canadian Journal of Women and the Law 301 at 304; also Janice Du Mont, and Deborah Parmis; "Judging Women: The Pernicious Effects of Rape Mythology” (1999) 19:1-2 Canadian Woman Studies 102 at 102 and cultural attitudes which law has long endorsed and which continue to infuse the criminal justice process, albeit in more covert, less accessible forms.”23 23. Sexual violence is varied in degree. At the highest (or, rather most aggravated) level, is rape with or without attendant violence. However, there are a substantial number of incidents which fall within the rubric of sexual violence, that amount to offences under various penal enactments. These outlaw behaviours such as stalking, eve-teasing, shades of verbal and physical assault, and harassment. Social attitudes typically characterize this latter category of crimes as “minor” offences. Such “minor” crimes are, regrettably not only trivialised or normalized, rather they are even romanticized and therefore, invigorated in popular lore such as cinema. These attitudes – which indulgently view the crime through prisms such as “boys will be boys” and condone them, nevertheless have a lasting and pernicious effect on the survivors. 24. The United Nations Organisation has defined “violence against women” as “any act of gender based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.”24 The effect of offensive behaviour against women, which laws criminalize- 23 Joanne Conaghan, Law and Gender (Oxford: Oxford University Press, 2013) at 113 24The Declaration on the Elimination of Violence Against Women (also ‘DEVAW). Articles 1 and 2 read as follows: “Article One: For the purposes of this Declaration, the term “violence against women” means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. Article Two: Violence against women shall be understood to encompass, but not be limited to, the following: (a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation; (b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution; (c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.” physical, verbal, or other acts which threaten or give them acute discomfort, undermining their dignity, self-worth and respect, is to silence or subdue the survivor. 25. In The Standard of Social Justice as a Research Process 25 two scholars of psychology made a strong indictment of the (contextually, Canadian) criminal justice process: “The more general indictment of the current criminal justice process is that the law and legal doctrines concerning sexual assault have acted as the principle [sic] systemic mechanisms for invalidating the experiences of women and children. Given this state of affairs, the traditional view of the legal system as neutral, objective and gender- blind is not defensible. Since the system is ineffective in protecting the rights of women and children, it is necessary to re-examine the existing doctrines which reflect the cultural and social limitations that have preserved dominant male interests at the expense of women and children.” Previous rulings 26. In Kunal Kumar Tiwari v. State of Bihar (supra), this court while dealing with Section 437(3)(c), Cr. PC (general conditions of bail) observed as follows: “9. There is no dispute that Sub-clause (c) of Section 437(3) allows Courts to impose such conditions in the interest of justice. We are aware that palpably such wordings are capable of accepting broader meaning. But such conditions cannot be arbitrary, fanciful or extend beyond the ends of the provision. The phrase 'interest of justice' as used under the Sub-clause (c) of Section 437(3) means "good administration of justice" or "advancing the trial process" and inclusion of broader meaning should be shunned because of purposive interpretation.” 27. In Sumit Mehta v. State (NCT of Delhi) (supra) this court, with respect to the conditions that can be imposed validly under section 438(2) of the CrPC, observed that: “11. While exercising power under Section 438 of the Code, the Court is duty bound to strike a balance between the individual's right to 25(1997), 38 Can. Psychology 91, K. E. Renner, C. Alksnis and L. Park at p. 100 personal freedom and the right of investigation of the police. For the same, while granting relief Under Section 438(1), appropriate conditions can be imposed Under Section 438(2) so as to ensure an uninterrupted investigation. The object of putting such conditions should be to avoid the possibility of the person hampering the investigation. Thus, any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law. So, the discretion of the Court while imposing conditions must be exercised with utmost restraint.” 28. It was urged that the observations made in Kunal Kumar and Sumit Mehta ought to be followed while imposing bail conditions. The appellants relying upon the observations made in para 18 of State of M.P v. Madanlal,26 submit that in cases of sexual offences, the concept of compromise, especially in the form of marriage between the accused and the prosecutrix shall not be thought of, as any such attempt would be offensive to the woman’s dignity. “18. …We would like to clearly state that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the “purest treasure”, is lost. Dignity of a woman is a part of her non- perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error.” 26 (2015) 7 SCC 681 29. The decision in Ramphal v. State of Haryana27 by order dated 27.11.2019, took note of the compromise between the survivor and accused persons but found that such compromise is of no relevance when deciding on rape and cases of sexual assault. “It is brought to our notice that during the pendency of the appeals, both the appellants have paid Rs. 1.5 lakhs each in favor of the prosecutrix and she has accepted the same willingly for getting the matter compromised. However, it is imperative to emphasize that we do not accept such compromise in matters relating to the offence of rape and similar cases of sexual assault. Hence, the aforesaid compromise is of no relevance in deciding this matter. On merits, we do not find any ground to interfere in as much as the evidence of the prosecutrix is coupled with the medical evidence which clearly proves that the offence of rape has been committed. Therefore, the Trial Court and the High Court have rightly convicted the accused/appellants.” 30. Empirically, the statistics regarding certain kinds of crimes against women have not shown any significant decline. In states and union territories, 32033 rape cases (under Section 376 IPC) were registered in 2019; 4038 cases of attempt to rape were registered the same year (under Section 376 read with Section 511, IPC). As many as 88,387 cases under Section 354 IPC were registered the same year, whereas 6939 cases were registered under Section 509 (outraging the modesty of a woman) in 2019. In all, a total of 4, 05,861 crimes against women were reported in 2019 (as against 359849 in 2017 and 378236 in 2018). The statistic for a relatively new species of offensive activities, cybercrimes that are women-centric, such as Transmitting of Sexually Explicit Material (Sec. 67A/67B, Information Technology Act), Blackmailing Defamation/Morphing/creating Fake Profile etc) registered in 2019, were 1645. POCSO offences, where girl children were victims, reported in 2019 were 46,005.28 The role of the courts and law enforcement agencies as neutral authorities, under a duty to ensure fairness 27Crl. A. No. 438/2011 28https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf 31. The role of all courts is to make sure that the survivor can rely on their impartiality and neutrality, at every stage in a criminal proceeding, where she is the survivor and an aggrieved party. Even an indirect undermining of this responsibility cast upon the court, by permitting discursive formations on behalf of the accused, that seek to diminish his agency, or underplay his role as an active participant (or perpetrator) of the crime, could in many cases, shake the confidence of the rape survivor (or accuser of the crime) in the impartiality of the court. The current attitude regarding crimes against women typically is that “grave” offences like rape are not tolerable and offenders must be punished. This, however, only takes into consideration rape and other serious forms of gender-based physical violence. The challenges Indian women face are formidable: they include a misogynistic society with entrenched cultural values and beliefs, bias (often sub-conscious) about the stereotypical role of women, social and political structures that are heavily male- centric, most often legal enforcement structures that either cannot cope with, or are unwilling to take strict and timely measures. Therefore, reinforcement of this stereotype, in court utterances or orders, through considerations which are extraneous to the case, would impact fairness. 32. Academic writings highlight that a judgment at all levels has a number of distinct audiences, each of which engages with it in a different way. The parties to the case and their counsel will be interested in how the judge resolves their specific dispute - what the law gives to or requires of them. At the same time, in a legal system where judgments of courts set precedents, and in particular within a common law system, judgments have significance beyond their authoritative resolution of a specific dispute—particularly in the Supreme Court. Thus, the judge is not only communicating to the parties their rights and liabilities in the context of the specific dispute being litigated; the judge is also addressing the broader legal community— other lawyers, judges, legal academics, law students—and indeed the public at large.29 33. Using rakhi tying as a condition for bail, transforms a molester into a brother, by a judicial mandate. This is wholly unacceptable, and has the effect of diluting and eroding the offence of sexual harassment. The act perpetrated on the survivor constitutes an offence in law, and is not a minor transgression that can be remedied by way of an apology, rendering community service, tying a rakhi or presenting a gift to the survivor, or even promising to marry her, as the case may be. The law criminalizes outraging the modesty of a woman. Granting bail, subject to such conditions, renders the court susceptible to the charge of re-negotiating and mediating justice between confronting parties in a criminal offence and perpetuating gender stereotypes. 34. The Inter-American Commission on Human Rights has noted that judicial stereotyping “is a common and pernicious barrier to justice, particularly for women victims and survivors of violence. Such stereotyping causes judges to reach a view about cases based on preconceived beliefs, rather than relevant facts and actual enquiry.”30 Furthering of rape myths and stereotypes by the judiciary, limits the emancipatory potential of the law. 35. ‘Judicial stereotyping’ refers to the practice of judges ascribing to an individual specific attributes, characteristics or roles by reason only of her or his membership in a particular social group (e.g. women). It is used, also, to refer to the practice of judges perpetuating harmful stereotypes through their failure to challenge them, for example by lower courts or parties to legal proceedings.31 Stereotyping 29Erica Rackley, The Art and Craft of Writing Judgements in Hunter, Rosemary and McGlynn, Clare and Rackley, Erika, eds. FEMINIST JUDGMENTS: FROM THEORY TO PRACTICE, Hart Publishing, Oxford. 30 Inter-American Commission on Human Rights, Access to Justice for Women Victims of Sexual Violence: Education and Health, OEA/Ser.L/V/II. Doc. 65 (2011) ; Simone Cusack, Eliminating Judicial Stereotyping, Paper submitted to the Office of the High Commissioner for Human Rights (2014). 31 Simone Cusack, Eliminating Judicial Stereotyping, Paper submitted to the Office of the High Commissioner for Human Rights (2014), p. 2. excludes any individualized consideration of, or investigation into, a person’s actual circumstances and their needs or abilities.32 36. There have been notable rulings by the CEDAW33 Committee in this regard. In V.K. v. Bulgaria34, the Committee observed that: ‘stereotyping affects women’s right to a fair trial and that the judiciary must be careful not to create inflexible standards based on preconceived notions of what constitutes domestic or gender-based violence’. 37. In Karen Tayag Vertido v. The Philippines35, the CEDAW Committee stressed that court should not create “inflexible standards” of what women should be or have done, when confronted with a situation of rape. 38. Judges can play a significant role in ridding the justice system of harmful stereotypes. They have an important responsibility to base their decisions on law and facts in evidence, and not engage in gender stereotyping. This requires judges to identify gender stereotyping, and identify how the application, enforcement or perpetuation of these stereotypes discriminates against women or denies them equal access to justice. Stereotyping might compromise the impartiality of a judge’s decision and affect his or her views about witness credibility or the culpability of the accused person.36As a judge of the Canadian Supreme Court remarked: “Myths and stereotypes are a form of bias because they impair the individual judge’s ability to assess the facts in a particular case in an open-minded fashion. In fact, judging based on myths and stereotypes is entirely incompatible with keeping an open mind, because myths 32Supra, p. 17. 33The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), was adopted in 1979 by the UN General Assembly; it is sometimes described as an international bill of rights for women. The CEDAW Committee is set up under Article 17 of CEDAW. 34V.K. v. Bulgaria, Communication No. 20/2008, UN Doc. CEDAW/C/49/D/20/2008 (2011) (CEDAW) 35Karen Tayag Vertido v. The Philippines, Communication No. 18/2008, UN Doc. CEDAW/C/46/D/18/2008 (2010) (CEDAW), para. 8.4. 36 Simone Cusack, Eliminating Judicial Stereotyping, Paper submitted to the Office of the High Commissioner for Human Rights (2014), p. 22. and stereotypes are based on irrational predisposition and generalization, rather than fact.”37 39. The stereotype of the ideal sexual assault victim disqualifies several accounts of lived experiences of sexual assault. Rape myths38 undermine the credibility of those women who are seen to deviate too far from stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offence immediately, etc. In the words of the Supreme Court of Canada, in R v. Seaboyer,39 “The woman who comes to the attention of the authorities has her victimization measured against the current rape mythologies, i.e., who she should be in order to be recognized as having been, in the eyes of the law, raped; who her attacker must be in order to be recognized, in the eyes of the law, as a potential rapist; and how injured she must be in order to be believed.” 40. The Bangalore Principles of Judicial Conduct, 2002, were from a meeting of Chief Justices of Asian and African countries, and endorsed by the UN Commission on Human Rights, the ECOSOC and the Commission on Crime Prevention and Criminal Justice. The Bangalore Principles provide that: “2.4 A judge shall not knowingly, while a proceeding is before, or could come before, the judge, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall the judge make any comment in public or otherwise that might affect the fair trial of any person or issue. ******** 5.1 A judge shall be aware of, and understand, diversity in society and differences arising from various sources, including but not limited to race, colour, sex, religion, national origin, caste, disability, age, 37 The Honourable Madame Justice Claire L’Heureux-Dubé, ‘Beyond the Myths: Equality, Impartiality, and Justice’ (2001) 10(1) Journal of Social Distress and the Homeless 87, 88. 38 Explained in R. v. Osolin, [1993] 4 S.C.R. 595 (a Canadian case) as opinions improperly forming the background for considering evidentiary issues in sexual assault trials. These include the false concepts that: women cannot be raped against their will; only “bad girls” are raped; anyone not clearly of “good character” is more likely to have consented. 39R v. Seaboyer, [1991] 2 S.C.R. 577, 650 (L’Heureux-Dubé & Gonthier JJ, dissenting in part) (Canada, Supreme Court). marital status, sexual orientation, social and economic status and other like causes ("irrelevant grounds"). 5.2 A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds.” 41. This court held, in State of Punjab v. Gurmit Singh & Ors.40 that: “The trial court not only erroneously disbelieved the prosecutrix, but quite uncharitably and unjustifiably even characterised her as a girl “of loose morals” or “such type of a girl”. … We must express our strong disapproval of the approach of the trial court and its casting a stigma on the character of the prosecutrix. The observations lack sobriety expected of a judge. … The courts are expected to use self- restraint while recording such findings which have larger repercussions so far as the future of the victim of the sex crime is concerned and even wider implications on the society as a whole – where the victim of crime is discouraged – the criminal encouraged and in turn crime gets rewarded!’ ***** “Language is 'a medium of social action' not 'merely a vehicle of communication' and the written judicial opinion is the primary, if not the sole, medium in which judges within our judicial system execute language.”41 ***** …the text of judicial decisions and opinions constitutes the law by which our common law system abides and the basis on which judges, lawyers, and citizens make reasoned legal judgments about future action.”42 42. This Court therefore holds that the use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is especially to be avoided under all circumstances. Thus, the following conduct, actions or situations are hereby deemed irrelevant, e.g. - to say that the survivor had in the past consented to such or similar acts or that she behaved promiscuously, or by her acts or clothing, provoked the alleged action of the accused, that she behaved in a manner unbecoming of chaste or 40State of Punjab v. Gurmit Singh & Ors., 1996 SCC (2) 384. 41 Rachael K. Hinkle et al., A Positive Theory and Empirical Analysis of Strategic Word Choice in District Court Opinions, 4 J. OF LEGAL ANALYSIS 407, 408 (2012). 42Ibid, at p. 409. “Indian” women, or that she had called upon the situation by her behavior, etc. These instances are only illustrations of an attitude which should never enter judicial verdicts or orders or be considered relevant while making a judicial decision; they cannot be reasons for granting bail or other such relief. Similarly, imposing conditions that implicitly tend to condone or diminish the harm caused by the accused and have the effect of potentially exposing the survivor to secondary trauma, such as mandating mediation processes in non-compoundable offences, mandating as part of bail conditions, community service (in a manner of speaking with the so-called reformative approach towards the perpetrator of sexual offence) or requiring tendering of apology once or repeatedly, or in any manner getting or being in touch with the survivor, is especially forbidden. The law does not permit or countenance such conduct, where the survivor can potentially be traumatized many times over or be led into some kind of non-voluntary acceptance, or be compelled by the circumstances to accept and condone behavior what is a serious offence. 43. The instances spelt out in the present judgment are only illustrations; the idea is that the greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the judge. Even a solitary instance of such order or utterance in court, reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence (of any kind from the most aggravated to the so-called minor offences). 44. Having regard to the foregoing discussion, it is hereby directed that henceforth: (a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused; (b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim; (c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days; (d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail; (e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction; (f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and (g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court. 45. Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that (i) women are physically weak and need protection; (ii) women are incapable of or cannot take decisions on their own; (iii) men are the “head” of the household and should take all the decisions relating to family; (iv) women should be submissive and obedient according to our culture; (v) “good” women are sexually chaste; (vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother; (vii) women should be the ones in charge of their children, their upbringing and care; (viii) being alone at night or wearing certain clothes make women responsible for being attacked; (ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”; (x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony; (xi) testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and (xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman. 46. As far as the training and sensitization of judges and lawyers, including public prosecutors goes, this court hereby mandates that a module on gender sensitization be included, as part of the foundational training of every judge. This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny. The module should also emphasize the prominent role that judges are expected to play in society, as role models and thought leaders, in promoting equality and ensuring fairness, safety and security to all women who allege the perpetration of sexual offences against them. Equally, the use of language and appropriate words and phrases should be emphasized as part of this training. 47. The National Judicial Academy is hereby requested to devise, speedily, the necessary inputs which have to be made part of the training of young judges, as well as form part of judges’ continuing education with respect to gender sensitization, with adequate awareness programs regarding stereotyping and unconscious biases that can creep into judicial reasoning. The syllabi and content of such courses shall be framed after necessary consultation with sociologists and teachers in psychology, gender studies or other relevant fields, preferably within three months. The course should emphasize upon the relevant factors to be considered, and importantly, what should be avoided during court hearings and never enter judicial reasoning. Public Prosecutors and Standing Counsel too should undergo mandatory training in this regard. The training program, its content and duration shall be developed by the National Judicial Academy, in consultation with State academies. The course should contain topics such as appropriate court-examination and conduct and what is to be avoided. 48. Likewise, the Bar Council of India (BCI) should also consult subject experts and circulate a paper for discussion with law faculties and colleges/universities in regard to courses that should be taught at the undergraduate level, in the LL.B program. The BCI shall also require topics on sexual offences and gender sensitization to be mandatorily included in the syllabus for the All India Bar Examination. 49. Before parting, this Court expresses its gratitude for the valuable suggestions and the assistance rendered by the learned Attorney General pursuant to the notice issued. We also appreciate the submissions made on behalf of the appellant(s) and the intervenor(s). 50. Each High Court should, with the help of relevant experts, formulate a module on judicial sensitivity to sexual offences, to be tested in the Judicial Services Examination. 51. In the light of the above, the bail conditions in the impugned judgment, extracted at para 3 above, are set aside, and expunged from the record. 52. Before concluding, it would be appropriate to quote certain excerpts from the Canadian Commentaries on Judicial Conduct:43 43 Les Éditions Yvon Blais Inc, 1991, quoted by Rt. Hon’ble Beverley Mclachlin, former Chief Justice of Canada, in her Speech Judging in a Democratic State https://www.scc-csc.ca/judges-juges/spe-dis/bm-2004-06-03-eng.aspx#fnb10 “[T]he wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave. True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.” 53. Judges play – at all levels – a vital role as teachers and thought leaders. It is their role to be impartial in words and action, at all times. If they falter, especially in gender related crimes, they imperil fairness and inflict great cruelty in the casual blindness to the despair of the survivors. 54. The appeal is disposed of in the above terms; there shall be no order on costs. ............................................J [A. M. KHANWILKAR] ..................................................J [S. RAVINDRA BHAT] New Delhi, March 18, 2021.


1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.1352 OF 2019 MS. X ...PETITIONER(S) VERSUS THE STATE OF JHARKHAND & ORS. ...RESPONDENT(S) J U D G M E N T ASHOK BHUSHAN, J. This writ petition has been filed by a rape victim invoking the jurisdiction of this Court under Article 32 of the Constitution. 2. This Court entertained the writ petition and while issuing notice on 29.11.2020 passed the following order: “Issue notice. Mr. Tapesh Kumar Singh, learned standing counsel for the State of Jharkhand, accepts notice on behalf of respondent/State. Signature Not Verified Digitally signed by Rajni Mukhi Date: 2021.01.20 15:31:24 IST Let the respondent/State file an affidavit Reason: giving details of all proceedings initiated by the petitioner or against her and the status of those proceedings. We, however, observe that the respondent no.3/Home Secretary shall also ensure that the concerned police authorities are instructed to ensure protection of the petitioner. List after four weeks.” 3. A counter-affidavit has been filed on behalf of the State of Jharkhand to which rejoinder has also been filed by the petitioner. The petitioner has also filed certain additional documents. 4. From the pleadings of the parties following facts emerged: The petitioner claims to be a Scheduled Tribe in the State of Jharkhand. The petitioner was born on 24.12.1984. On 31.03.1998, petitioner was taken away by one Basant Yadav. Petitioner’s father, Rajender Badaik, lodged a complaint. Basant Yadav was apprehended on 02.04.1998. Father of the petitioner and Police of the concerned Police Station got the marriage of the petitioner solemnised with Basant Yadav. After one year of the marriage, one son was born, named Manish Yadav. Petitioner filed a complaint as well as case for maintenance against her husband, Basant Yadav. 5. The petitioner obtained divorce from Basant Yadav and the custody of son was given to Basant Yadav. On 08.06.2002, petitioner went to Dultonganj on asking of Basant Yadav to meet her son on which date she was raped by one Mohd. Ali and three other accused. Case No.162 of 2002 under Section 376/34 read with Section 3(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989was registered in which accused, Mohd. Ali was apprehended and put on trial. 6. The petitioner lodged an FIR against the DY. Inspector General of Police on 02.08.2005 under Section 376,376(2)(a)IPC and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 on which on 03.08.2005 Case No.304 of 2005 was registered.The petitioner also lodged an FIR against an Inspector General of Police on which Sessions Trial No.257/2006 was registered. Certain other criminal cases got registered by the petitioner against different persons,some of which were filed under Section 376 IPC. In the Sessions Trial 11 of 2006, the accused Mohd Ali was convicted on 15.02.2014 with 10 years RI. 7. In the FIR lodged against Dy. Inspector General of Police final report was submitted which was accepted by the Court on 06.08.2007 insofar as FIR lodged against Inspector General of Police, Sessions Judge acquitted the Inspector General of Police by judgment and order dated 23.12.2017 against which criminal appeal has been filed in the High Court of Jharkhand. A criminal case was also lodged against the petitioner. 8. The petitioner’s case in the writ petition is that she being the rape victim, whose identity was disclosed by the media and after knowing that the petitioner is a rape victim, no one is ready to give her accommodation even on rent. The petitioner in the writ petition invoked jurisdiction of this Court in the matter of rehabilitation of the petitioner. The petitioner also prays for direction to the respondent to protect the petitioner and her children’s life. The petitioner after divorce from her first husband got married to one Rajesh Kujur with whom a son was also born. The petitioner has also lodged criminal case being No.56/2004 against her husband Rajesh Kujur which resulted in acquittal. 9. The petitioner has also filed a copy of the legal notice dated 09.08.2019 which was sent by the landlord of the petitioner asking the petitioner to vacate the premises on the ground of non-payment of rent. The petitioner sent a letter dated 05.12.2019 stating that the landlord had sealed the house on 04.12.2019. 10. In the counter-affidavit by the State, the State has given a tabular chart containing status of 7 criminal cases which were initiated by the petitioner. In paragraph 7 one of the cases mentioned in the chart is the case filed against Mohd. Ali, Mohd. Ali was convicted on 15.02.2014 under Section 376(2)(g) IPC and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In other criminal cases either the accused were acquitted ortrial is pending in some cases. In two FIRs lodged by the petitioner, in the year 2018 under Section 354 A(ii) as well as under Section 376, 448 and 506 IPC respectively the investigation is said to be going on. 11. The petitioner has appeared in person. Shri Tapesh Kumar Singh, learned counsel has appeared for the State of Jharkhand. 12. The petitioner submits that due to the petitioner being rape victim she is not getting any help from family friends or society. She, with three children, has no means of survival and she is not able to give education to her children. The administration, media and society has compelled the petitioner to lead a life with no security, no job and no shelter in future. 13. Shri Tapesh Kumar, learned counsel appearing for the State submits that the petitioner has lodged various FIRs alleging rape against several persons. It is submitted that against the petitioner also an FIR was lodged at Palamau Sadar PoliceCase No.194 of 2002 for the commission of the offences under Section 25(1-b)a of Arms Act,on the basis ofa written report submitted by the Assistant Sub-Inspector of Police in which charge-sheet has also been filed. It is submitted that since 02.10.2019 an armed Lady Constable, namely, Suman Surin has been deputed with the writ petitioner for her security. 14. It is further submitted that the State has taken care of making security arrangement of the petitioner and in pursuance of the order dated 06.01.2020 another security personnel has been deputed with the writ petitioner. Learned counsel, however, submits that the Police authority may be permitted to review the security from time to time to take appropriate measures in that regard. Shri Singh further submits that the petitioner is in a habit of making false allegations against several persons and officers. A complaint has recently been submitted making allegations of offences under Section 376 IPC. It is submitted that the petitioner has vacated the earlier accommodation of Subodh Thakur. 15. We have heard the petitioner in person as well as learned counsel appearing for the State. 16. There can be no denial that the petitioner is a rape victim. Even if we do not take into consideration other criminal cases filed by the petitioner under Section 376 IPC, in Case No.162/2002 where allegation of rape was made on 08.06.2002 the accused, Mohd. Ali has been convicted under Section 376(2)(g) IPC for 10 years RI. The petitioner being a rape victim deserves treatment as rape victim by all the authorities. 17. A rape victim suffers not only a mental trauma but also discrimination from the society. We may refer to the judgment of this Court in Nipun Saxena and another vs. Union of India and others, (2019) 2 SCC 703, wherein following observations were made by this Court: “12. A victim of rape will face hostile discrimination and social ostracisation in society. Such victim will find it difficult to get a job, will find it difficult to get married and will also find it difficult to get integrated in society like a normal human being. ………” 18. The petitioner herself has brought on record few orders passed in Writ Petition (Cr.)No.229 of 2014 (Padma @ Shushma Badaik vs. The State of Jharkhand and others)filed by the petitioner before the High Court of Jharkhand where in the order dated 12/11.09.2015 statement on behalf of the Counsel for the State was recorded by the High Court that State is ready to provide free education to the children of the writ petitioner. Following is the statement recorded by the High court on 12/11.09.2015: “Counsel for the State has submitted that State is ready to provide free education to the children of the writ petitioner. If she will give her consent, her children shall be admitted in the Govt. Boarding School at Gumla and the expenses shall be borne by the Government.” 19. The petitioner has two sons and one daughter. Manish Yadav appears to have been born after one year of the marriage which took place in the year 1998, eldest son, thus, as on date is major, two children of the petitioner are still minor. 20. On an inquiry by the Court as to which authority is to ensure that the minor children of the petitioner are provided free education, learned counsel submitted that it is Deputy Commissioner, Ranchi who can take the appropriate measures to ensure that the minor children of the petitioner are provided free education. Learned counsel for the State has submitted that education upto the age of 14 years in the State of Jharkhand is free which is provided by the State. We, thus, are of the view that Deputy Commissioner shall take appropriate steps to ensure that minor children of the petitioner are provided free education in any Government Institution at Ranchi. 21. The petitioner has also raised grievance regarding her identity which has been disclosed by the media. The petitioner has annexed certain materials along with writ petition and the additional documents. Section 228-A of the Indian Penal Code which has been inserted in the Indian Penal Code by Amendment Act43 of 1983 with effect from 25.12.1983 makes disclosure of the identity of the victim is an offence. Section 228-A is as follows: “Section 228A. Disclosure of identity of the victim of certain offences etc.—(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376B, section 376C or section 376D is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. (2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is— (a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or (b) by, or with the authorisation in writing of, the victim; or (c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim: Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation. Explanation.—For the purposes of this sub- section, “recognised welfare institution or organisation” means a social welfare institution or organisation recognised in this behalf by the Central or State Government. (3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub- section (1) without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. Explanation.—The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.” 22. This Court in Nipun Saxena and another (supra) has occasion to consider Section 228-A wherein this Court in para 50.1 has issued following directions: “50.1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.” 23. The law with regard to Section 228A is well established, all including the media, both print and electronic have to follow the law. 24. With regard to the payment of compensation to the petitioner as a rape victim, along with additional documents the petitioner has brought on record materials to indicate that the decision was taken by the District Legal Services Authority, Ranchi to pay compensation of Rs.1,00,000/- by letter dated 06.03.2017. The letter of the Secretary, District Legal Services Authority, Ranchi has been brought on record by the petitioner herself. The grant of compensation has been considered under the Jharkhand Victim Compensation Scheme, 2012 as amended in 2016. 25. There is a statutory scheme already enforced in the State of Jharkhand framed under Section 357A of the Code of Criminal Procedure Code, 1973,which provides procedure for grant of compensation. The petitioner had already made application to seek compensation under the above Scheme and payment of compensation has already been made. 26. The next grievance which has been highlighted by the petitioner is the petitioner’s inability to get any rented accommodation in Ranchi due to she being a rape victim. In the counter-affidavit filed by the State, it is clear that the petitioner has lived at several/different places but due to the dispute with the landlord she has to leave the premises. There are various Central as well as State Schemes for providing residential accommodation to persons living below poverty line and other deserving cases, the Deputy Commissioner, Ranchi may consider the case of the petitioner for allotment of any housing accommodation under Prime Minister Awas Yojna or any other Scheme of the Centre or the State. 27. In view of the foregoing discussion, we dispose of this writ petition with the following directions: (1) The Deputy Commissioner, Ranchi is directed to take measure to ensure that minor children of the petitioner are provided free education in any of the Government Institutions in District Ranchi where the petitioner is residing till they attain the age of 14 years. (2) The Deputy Commissioner, Ranchi may also consider the case of the petitioner for providing house under Prime Minister Awas Yojna or any other Central or State Scheme in which petitioner could be provided accommodation. (3) The Senior Superintendent of Police, Ranchi and other competent authority shall review the Police security provided to the petitioner from time to time and take such measures as deem fit and proper. (4) The District Legal Services Authority, Ranchi on representation made by the petitioner shall render legal services to the petitioner as may be deemed fit to safeguard the interest of the petitioner. ......................J. ( ASHOK BHUSHAN ) ......................J. ( R. SUBHASH REDDY ) ......................J. ( M.R. SHAH ) New Delhi, January 20, 2021.