Courts must be sensitive while hearing rape cases, says Kerala High Court

“They must hear the victims before deciding on anticipatory bail pleas of accused”

The Kerala High Court has held that criminal courts should be sensitive while dealing with sexual violence cases and should hear the victims before deciding on anticipatory bail pleas of the accused.

Justice Alexander Thomas was considering a plea by a rape survivor against the anticipatory bail granted by a court in Kasaragod to an accused. Though there was no statutory obligation, “there is judicial duty, emerging out of the principles of fairness, that the victims should be heard in all cases of anticipatory bail” in sexual violence cases, he observed.

The court said there could not be two opinions that there was gross under representation of women in responsible positions not only in the prosecution machinery and the investigating agency, but also in the judicial organs of the State. Therefore, in serious cases of sexual violence, both involving Section 376 of the Indian Penal Code (IPC) (rape) and other offences affecting child victims under the POCSO Act, the court had to be sensitive to the victims, and should exercise its discretion on whether or not the victim had to be heard.

The court slammed the Kasaragod Additional Sessions Court Judge for mechanically coming to the conclusion that the incident could have happened only on the basis of consent.

It directed the sessions court to consider the bail plea of the accused afresh.

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