Supreme Court Stays Kerala High Court's Order Granting Anticipatory Bail To Advocates Accused of Raping Client
The Supreme Court has stayed an order passed by the Kerala High Court granting pre-arrest bail to two Advocates, practising in the Courts at Tellicherry and at Kozhikode, Kerala, accused of raping and sexually assaulting a client who had approached them for assisting in pursuing her plea for divorce.
The Bench of Justice Hrishikesh Roy and Justice Sanjay Karol was apprised by the Senior Advocate V Chitambaresh, appearing for the Petitioner, that the litigant was sexually exploited by both the Advocates. Further, explaining the delay in filing the complaint in the year 2023, the Senior Advocate submitted that as the litigant who was hoping for closure of the divorce proceeding and other issues, she was not in a position to make the Complaint at an earlier point in time.
He also stated that since the petitioner is earning her livelihood as a tailor and has a dependent minor daughter, she was also concerned about her livelihood and the safety of her daughter. The Petitioner further urged the Bench to show no indulgence to the members of a noble profession, who were supposed to protect and espouse the cause of the litigant, rather than exploit the vulnerable prosecutrix.
Considering the submissions, the Court accordingly ordered, "Issue notice, returnable in four weeks. In the meantime, the impugned order is stayed until the returnable date."
Background: The Kerala High Court had on October 18, 2023, allowed the anticipatory bail application of the 2 Advocates accused for the offence under Section 376, 354, 506, 120B read with Section 34 of the IPC. The argument that the grant of anticipatory bail in a case of this nature
The High Court had noted, "The allegations against the petitioners are no doubt serious. However, I must take note of the fact that even according to the de facto complainant / victim, she had first approached the 1st petitioner seeking his professional help in the year 2021. A cumulative reading of all the complaints preferred by the de facto complainant / victim would indicate that she was abused right from the time she had first approached the 1st petitioner seeking his professional help. However, the first complaint seems to have been filed only on 30-06-2023. While this itself may not be fatal to the prosecution case, it lends credence to the argument of the learned counsel for the petitioners that the de facto complainant / victim had actually filed a complaint being aggrieved by the fact that she had not received sufficient compensation in the proceedings before the Family Court."
It was also observed in the order that, "The argument that the grant of anticipatory bail in a case of this nature will have an impact on the society and will send a wrong message to the public at large does not appeal to this court as 'in this country we do not administer justice by plebiscite' [Judge Hiller B. Zobel at the trial of the Nanny, Louise Woodward, 1998]".
In the Special Leave Petition before the Apex Court, the Appellant contended that the High Court granted protection to the respondents from arrest without appreciating the material aspects placed by the petitioner and because they are practising advocates. The appellant stated that the High Court ought to have considered the fact that one among them being a former public prosecutor, who is well versed with the process of law and previously being an insider to the law enforcement agency made it all the more important that the investigation ought to have proceeded without the protection of the Court.
Cause Title: XXX v. M.J.Johnson & Ors. [Special Leave to Appeal (Crl.) No(s).15122/2023]