Govt. Maintained A ‘Sphinx-Like’ Silence On Justice Hema Committee Report For 5 Years: Kerala HC While Denying Anticipatory Bail To Rape Accused

The Kerala High Court while denying anticipatory bail to a rape accused, said that the Government maintained a sphinx-like silence for five years on Justice Hema Committee Report regarding various forms of sexual harassment and exploitation faced by women in the Malayalam Film Industry.

The accused had filed an application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), for an order of pre-arrest bail.

A Single Bench of Justice C.S. Dias observed, “In light of the reference made by the learned Public Prosecutor to the Justice Hema Committee report, this Court finds it necessary to state the background facts regarding the report briefly. The Government of Kerala had appointed an Expert three member Committee headed by Justice K. Hema, a former Judge of this Court, to study and report the issues faced by women in cinema and suggest solutions to their problems. Although the Expert Committee submitted the report to the Government in 2019, mysteriously, the Government maintained a sphinx-like silence for five years.”

The Bench added that, it was only through the intervention of the High Court that Justice Hema Committee Report saw the light of day.

Senior Advocate B. Raman Pillai appeared on behalf of the petitioner/accused while Additional Public Prosecutor (APP) P. Narayanan and Advocate V. Harish appeared for the respondents.

In this case, the survivor of the crime i.e., the victim alleged that the petitioner-accused got in touch with her through Facebook in 2014. He allegedly interacted with her and her mother frequently over the phone and via Skype. She submitted that the accused encouraged her to work in the cinema and assured her of all help from his side. According to her, in 2016, the accused invited her and her parents to attend the preview of his movie ‘Sukhamayirikatte’, which they attended. Thereafter, he invited the victim to a hotel for lunch and to discuss on a new film in which his son was proposed to play the lead role. Hence, she went to the hotel room where the accused made her sit on a chair near his bed and explained the adjustments and compromises that are expected of women to excel in the field. After that, the accused allegedly touched her genitals and removed her clothes and inner garments and bit and licked her body, breasts, and vagina.

She tried her best to push away him, but he confined her. It was further alleged that he attempted to have sexual intercourse, which the victim resisted. The survivor got angry, sad, and broke down. She told him that she would tell people about the incident to which he replied that no one would believe her. Even after the incident, the accused allegedly attempted to contact her and resultantly, she blocked him. It was submitted that the trauma was so much that she could not reveal the whole incident even to her parents. In 2019, she gathered courage and mentioned the harassment in a Facebook post and subsequently, she got threatening messages, due to which she never had the courage to complain. Finally, an FIR was registered against the accused for allegedly committing the offences punishable under Sections 376 and 506 of the Indian Penal Code (IPC).

The High Court in the above regard noted, “A woman’s experiences of sexual assault are not a reflection of her character but rather an indication of her suffering. The attempt to blame a woman for speaking out may be a strategy to silence her, which is hostile to the supremacy of the law. The courts are called to evaluate the merits of the application, free from any prejudicial assumption of the survivor’s character. The core of the matter is whether the petitioner has prima facie committed the offences alleged against him and whether he is entitled to pre-arrest bail.”

The Court further noted that the Government constituted a Special Investigation Team (SIT) to take action against the offenders named in Justice Hema Committee report, but based on independent complaints filed by the victims.

“Consequently, several victims have filed complaints before the Police, like the survivor in the instant case. The question of the legality or rather illegality of the Government shelving the report and the future course of action to be taken on the report are being independently examined by a Division Bench of this Court. Therefore, I refrain from delving into the aspect. Be that as it may, in view of the directions of this Court to publicise the report, the same has presumably emboldened the victims, like the survivor, to step forward”, it added.

Coming back to the facts of the case, the Court said that the nature, gravity and seriousness of the accusations alleged against the petitioner-accused, coupled with the materials placed on record prima facie shows his involvement in the crime.

“… that the petitioner’s custodial interrogation is inevitable for the proper investigation of the crime, especially since his defence is a total denial of the incident and his potency test is to be conducted, and the reasonable apprehension of the prosecution that the petitioner may intimidate the witnesses and tamper with the evidence, I arrive at the irresistible conclusion that this is not a fit case to exercise the discretionary powers of this Court in favour of the petitioner”, it remarked.

Accordingly, the High Court dismissed the application and denied anticipatory bail to the accused.

Cause Title- XXXXXXXXXX v. State of Kerala & Anr. (Neutral Citation: 2024:KER:70829)

Appearance:

Petitioner: Senior Advocate B. Raman Pillai, Advocates Philip T. Varghese, Sujesh Menon V.B., Thomas T. Varghese, Achu Subha Abraham, V.T. Litha, K.R. Monisha, and Nitya R.

Respondents: APP P. Narayanan, Senior GP Sajju S., Advocates V. Harish, and Rajan Vishnuraj.

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