Kerala High Court stays "provocative dress" order in sexual harassment case against Civic Chandran

The Kerala High Court on Wednesday stayed the controversial order of the Kozhikode Sessions Court which had, while granting anticipatory bail to activist Civic Chandran, held that sexual harassment case would not prima facie stand if the victim was wearing a “sexually provocative dress” [State of Kerala v Civic Chandran]..Justice Kauser Edappagath observed that the Sessions judge seemed to have relied on irrelevant material while passing the order granting bail,"Prima facie it appears that there was an improper exercise of jurisdiction by the Session Judge while granting bail to the accused. Irrelevant materials of substantial nature are seen relied on to grant bail. The finding of the impugned order that Section will not be prima facie attracted if the victim was wearing sexually provocative dress cannot be justified. In these circumstances, the impugned order shall stand stayed till the disposal of this Crl.MC ," the Court said in its order..However, the Court made it clear that Chandran shall not be arrested until the matter is heard by the High Court."Considering the age of the accused, he shall not be arrested till the disposal of this CrlMC," the order stated. .The Court passed the order on a plea moved by the Kerala Government challenging the order granting bail to Chandran who was charged with committing offenses punishable under sections 354 A(2) &341 and 354 of the Indian Penal Code.The prosecution case is that on February 2020 at 5 pm, a cultural camp was organized by a group named “Nilanadatham” in Kadal veedu at Nandi beach. After the function, while the defacto complainant was taking rest near the seashore, the accused forcefully embraced her and asked her to sit on his lap. The accused also pressed the breast of the woman, thereby outraging her modesty.The complainant registered a case only in July 2022 admitting that she was apprehensive and ashamed.The Session Court order passed by judge S Krishna Kumar stated that to attract the offence under Section 354A, there must be some unwelcome sexual advances but in the instant case, the photographs of the complainant showed her "exposing herself in provocative dresses".“In order to attract this Section, there must be a physical contact and advances involving unwelcome and explicit sexual overtures. There must be a demand or request for sexual favours. There must be sexually colored remarks. The photographs produced along with the bail application by the accused would reveal that defacto complainant herself is exposing to dresses which are having some sexual provocative one (sic). So Section 354A will not prima facie stand against the accused," the Court said..The appeal filed by the State through Additional Public Prosecutor P Narayanan, contended that the Session Court order granting bail is against the facts and circumstances of the case, thus amounting to an infringement of the personal liberty of the survivor and violation of the right to life guaranteed under Article 21 of the Constitution of India.“The court below relied heavily on certain photographs of the victim which was published in social media and observed that the defacto complainant herself is exposing to dresses which are having some sexual provocative and therefore Section 354A will not prima facie stand against the accused. The above finding is per se illegal, unjust and have the effect of potentially exposing the survivor to secondary trauma” the appeal stated.Reference was made to the decision of the Supreme Court in Aparna Bhat & ors. v State of Madhya Pradesh in which it was held that the dress, behavior, or past “conduct” or “morals” of the procesutrix, should not be considered while granting bail.It was further stated that the court below flouted all the guidelines issued by the Supreme Court and granted pre-arrest bail to the accused by making observations which have been deprecated by superior courts.Moreover, it was submitted that sexually provocative dressing of a victim cannot be construed as a legal ground for absolving an accused from the charge of outraging the modesty of a woman, which is highly insensitive and insulting.The right to decide on what to wear and how to wear etc is the natural extension of personal freedom guaranteed by the Constitution of India and one of the fundamental facets of the right to life guaranteed under Article 21, the appeal stated.It further said that the accused had committed a similar offense and is in the habit of molesting women. That being so, such an accused is not entitled to get discretionary relief as mandated under section 438 of the Code of Criminal Procedure (CrPC)The conclusion arrived at by the Sessions Court that 74-year-old physically challenged man cannot forcefully put the defacto complainant on his lap and press her breast suffers from perversity of reasoning and cannot be legally countenanced, the appeal further said.Findings and observations made by the Sessions Court are highly deplorable demeaning and eventually harm the public trust in the judicial system, it was submitted.