In a most bizarre and unheard of ruling in Indian judicial history, a 22 year old gang rape survivor and her two associates were remanded to a 14-day judicial custody by a Judicial Magistrate for contempt of court, in Bihar.

Today, while the victim was granted bail on a PR bond, her two social activist friends were denied bail and are still in jail. Anish Ankur, writes a detailed report about the entire case, which raises certain important issues relating to violent sexual crimes in our country.

In an unprecedented and unheard of event, the Judicial Magistrate of Araria, 320 km from Patna, instead of delivering justice to a victim of gang rape, ordered arrest of the rape survivor and two social activists who were assisting her for alleged disruption of court proceedings, while the rapists are still out of the reach of police administration. This exceptional case has exposed the sorry state of criminal justice system where the whole system seems to be pitted against the rape survivor.

Araria district court witnessed a dramatic turn when the rape survivor was recording her S.164 statement on July 10. The magistrate perceived the victim’s disoriented state of mind and her subsequent outburst as a personal affront and remanded her, along with her two activist friends, to a 14-day judicial custody for contempt of court. The three have been sent to Dalsinghsarai Jail, about 240 kms from Araria. The survivor’s details, including her father’s name and full address was disclosed in the local press. The news reports cited the Court staff as having provided them with the details.

Sulekha (name changed), an illiterate girl, who earns her living as a domestic worker was known to Tanmay Nivedita and Kalyani Vadola, two social activists associated with Jan Jangran Shakti Sangthan (JJSS), an organization in Araria district, and working actively on RTI (Right to Information), MNREGA (Mahatma Gandhi Rural Employment Guarantee Act) and issues of justice. In an FIR registered with the Women police station on July 7, Sulekha narrated the whole series of events and what happened to her on the fateful evening of July 6.

What happened on July 6 

According to the FIR 59/20, Sulekha started to learn to ride a motorcycle with the help of a boy, named Sahil who was known to her. On July 6, around 7.30 p.m, Sahil called her for a motorcycle learning session. Sulekha reluctantly agreed and went out with him. After half an hour of training, Sulekha told Sahil to drop her home as it was getting late. Instead of dropping her home, he stopped the motorcycle near a canal at a desolate spot. Here he got off from the motorcycle on the pretext of attending nature’s call’. Sulekha started yelling at him for stopping the bike in a desolate place. Suddenly, three miscreants who were accosting them, came on a motorcycle. Another miscreant joined them later. They grabbed Sulekha and started to drag her into the direction of a nearby forest. In her FIR, Sulekha had told:

“When I protested they threatened me with dire consequences. I was forcibly taken to a forest by these men. When I asked Sahil for help he did not stop them, he did nothing and was merely a mute spectator before them.”

In fact Sahil fled away from the place. Sulekha was gang-raped there by these four men. In the FIR Sulekha further said:

“I was screaming for help but nobody came to my rescue. At 10.30 P.M in the night they left me near the canal, where a fish market sits during daytime. I was very terrified. I rang Kalayani didi who is like my friend. Kalyani along with Abhimanyu came and took me to her house. I was in a state of shock.”

Sulekha narrated the entire incident before Kalyani, Tanmay and Sohini Shoib, another JJSS activist. Initially, Sulekha didn’t want her family to be informed about what happened to her. These JJSS activists counselled her and on the next day on July 7, they went to the women’s police station, Araria, to register a complaint. After preliminary enquiry, she was sent for medical examination in the night. But the process could not be completed. Therefore, next morning they went there again. Sohini Shoaib accompanied Sulekha the next day. According to Sohini Shoaib “Before the medical test, they took her [victim’s] signature on a blank FIR copy. When Sulekha protested the policeman said in a casual tone “This is how it goes here”. Her clothes were taken but neither was it sealed nor were we given any receipt.”

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What happened on July 10 inside the courtroom

This was the fourth day after the incident had happened. During these four days she had to narrate her story again and again before many others. By this time, many people had already started blaming her for the mess she was in. In the meantime, a police officer even read out the statement openly thus publicly disclosing her name and identity. He even gave out her address (Revealing the sexual assault survivor’s identity is a criminal offence under section 228A of the IPC). After that the accomplice’s (Sahil) family started to meet the rape survivor repeatedly. They even tried to hush up the matter by negotiating her marriage with the accomplice.

On July 10, around 11 A.M, the women’s police station called her for recording her statement under sec. 164 IPC. She was taken to Araria district court. Sahil, who was arrested on July 9, and his family members were also present there. Sulekha, the victim, has been standing in the corridor with one of the abettors of the crime, waiting for the recording of her statement for nearly five hours. She could not take the ordeal anymore and was losing her patience. At this time when the Judicial Magistrate (JM) after recording her statement asked her to sign without even reading it out to her, she said in a raised voice, “I am not able to understand what you are saying? Call Kalyani Didi.” She was extremely nervous. It seems JM, Mustafa Shahi, could not understand her distraught state of mind and took it personally as his insult that she is relying more on her associate rather than him. He then called the Investigating Officer (IO) who tried to make Sulekha understand. The IO managed to take her signature on the recorded statement. By this time she became so disturbed that when she came outside she almost yelled at Kalyani Vadola “Where have you gone when I needed you most?” Kalyani tried to pacify her by saying to her that during such recording of statement no one is allowed in the courtroom. ”At this time the Judicial Magistrate called Kalyani and asked her “who are you? Why is the victim calling you?” Kalyani told the Judge that if the rape survivor is asking to read out the recorded statement again before signing then it should be done. On hearing the argument, another associate Tanmay Nivedita also went into the courtroom. Then the JM switched on the audio recorder on his phone and asked what they want. Both Kalyani and Tanmay repeated the same thing again “If the rape survivor wants her statement to be read out then it should be done again before asking for her signature.” In the meanwhile, Sulekha was told by the police and court officials that she will be sent to her parents’ house, which she didn’t want to do from the very beginning. Perplexed, physically and emotionally exhausted, Sulekha started shouting again. This entire sequence of events culminated in the arrest of Sulekha, Kalyani and Tanmay for contempt of court for obstructing judicial proceedings. All the three were sent to Dalsingh Sarai district jail (set up specially for women prisoners of many districts including Araria, also serving as an quarantine jail during the corona pandemic), 240 km away from Araria.

An FIR 61/20 was lodged against the three for disruption of court proceedings and contempt of court. They were charged under section 353, 228,180,188 others of the Indian Penal Code. It was alleged in the FIR that JJSS activist Kalyani had misbehaved and even threatened the court officials saying that she is the President of the organization, JJSS and therefore, nobody can touch her. The FIR was registered by Rajeev Ranjan Sinha, a judicial official in Araria district court and other male court personnel were made eye witnesses. The FIR also ordered an investigation into the functioning of JJSS.

In response to the FIR 61/20, JJSS issued some clarification. For instance: “Kalyani was called into the courtroom, she didn’t enter the courtroom forcibly. In the FIR, Kalyani’s name came up as President of JJSS which she is not. Then how can she say in the courtroom that she is the president of JJSS? Most of the names of the witnesses in the FIR are of men, so a question can be asked of what they were doing in the courtroom?”

Ashish Ranjan, Secretary, Bihar JJSS, expressed his apprehension that in the midst of all these, the real issue, bringing justice to the victim has taken a back seat. “We just want justice for the victim. For this purpose our activists were helping her. But our fear is that in place of providing justice to the rape survivor, focus may now shift to the alleged misbehaviour of the gang rape survivor.”

The FIR 61/20 has raised many important questions like presence of a women judge during recording of victim’s statement, can a rape survivor demand to be accompanied by any ‘person  of confidence’ along with her during 164? Gyanchandra Bhardwaj, general secretary of Bihar Prosecution Service Association clarified these points “When judiciary have decided to implement 33% reservation for women then the hearing of a gang rape survivor should have been done, preferably, in the presence of a women judge. After 2013 and in 2018, there has been an amendment in criminal law so as to make it more women friendly. During recording of statement under 164, rape survivor can be accompanied by any ‘legal guardian’ or by one whom she regards as a ‘person of confidence’.

This shocking incident has outraged the civil society of Bihar and despite the impunity the court enjoys and is considered to be beyond criticism, a lot of organizations have voiced their concerns against the district court’s behaviour. Senior advocate Madan Prasad Singh of Patna High Court condemned the arrest by saying “It is beyond the jurisdiction of the Judicial Magistrate that he can charge anyone with contempt of court. If suppose, anything of this sort happened then he should have referred it to the higher court. Only the High Court has the power to decide on this matter. Further, sec. 228 and 188 of IPC are bailable.” These points were also raised in a letter to the Chief Justice of the Patna High Court by lawyers across the country.

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Lawyers petition to Hon’ble Chief Justice of Patna High Court

More than four hundred lawyers, including Indira Jaisingh and Prashant Bhushan, across the country, send a letter to the Hon’ble Chief Justice of Patna High Court and Other Hon’ble judges seeking the “need for urgent and systemic changes in the treatment of survivors of violent sexual crimes”. The lawyers said “It should be remembered that it was the fourth day since the incident of gang rape. The rape survivor was completely distraught and also very disoriented. She was not eating or sleeping, and also in physical pain. In the course of the four days, she had had to repeat her experience to sundry personnel, often only for voyeuristic purposes. She had been totally dependent, emotionally, on her activist’s friends since the incident, and they were also traumatized and exhausted. Any perceived disrespect for court must be viewed from this perspective.”

The letter further goes on and states that “Rather than understanding the fragile state of the three people, they were first remanded to police custody. It may be pointed out that no Covid test was conducted on the survivor, even though she had been gang-raped by several strangers. Within hours, and while the three were in police custody, exaggerated accounts of what had transpired during the proceedings were reported on electronic media, together with complete details about the survivor, including her father’s name and her complete address. Shockingly, one such report also carries a photograph of the reporter sitting in the filing section and inspecting her file, with the court clerk and other staff looking on.”

The letter also challenged the legal validity of the Judicial Magistrate’s order. The reports published on July 11, in the local newspapers also stated that no FIR has yet been filed in the ‘contempt case’. It was only at around 12:30 PM on July 11, that two witnesses were asked to sign on a blank arrest memo and they were informed that FIR no. 61/2020 had been filed under the Contempt of Courts Act, which is not applicable to the magistrate’s court; also under S.353 of the IPC (which is most implausible, even if we accept the facts at face value that the survivor had repeatedly demanded that the S.164 statement be read out to her by her caregiver and not by the learned magistrate since she could not understand him); Ss. 228 and 188 (both bailable). The three were produced in court and remanded into judicial custody to the District Jail in Dalsinghsarai, 240Kms away.”

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Several civil society and women organizations voiced their concerns in the strongest terms

Various womens organizations like Bihar Mahila Samaj (Nivedita Jha), All India Progressive Womens Association (AIPWA- Meena Tiwary), All India Democratic Women’s Association (AIDWA- Rampari), Sister of Chairity, Nazerath (Sister Leena), ASWF (Asma Khan), Vimukta Stri Mukti Sangathan (Akanksha), Bihar Mahila Muslim Manch (Nusrat Jahan), Community Health Centre, Bakhtiyarour (Sister Neha), Make A  New Life Foundation (Tabassum Ali), issued a joint statement in which they condemned the arrest of rape survivor as well as her two associates by saying “ If a gang rape victim go to Judicial Magistrate to record her statement then instead of  getting justice she herself was sent to judicial custody. What kind of justice is this? Not only inhuman treatment was meted out to a rape victim but it is an attack on women’s rights also. Rapists should be given maximum punishment.”

In the same way, Citizens Forum, Patna, a joint forum of more than a dozen social-political organizations demanded the immediate arrest of the perpetrators of the crime. ‘’We are disturbed by the arrest of gang rape survivor and two of his friends who face the wrath of Judicial Magistrate who mistakenly took their behaviour as an insult of himself.”

These public pressures, it seems, have driven Dilamani Mishra, president of Bihar State Women Commission to take cognizance of this matter. She has reported to have said “It’s astonishing that gang rape survivor itself has been arrested. I have sent notice to the Araria district administration and asked for the details of the incident. After their response I will decide about my future course of action.”

Despite the sensitive issue of court, more and more people have started raising their voice. Ghalib Khan, a senior social activist of Bihar said that the court should understand the circumstances under which everything occurred “Nobody is denying the sanctity of the court but the court should also think what signal it has sent to larger sections of society? That a victim herself has been victimized by the court. Never ever had I heard an incident like that where instead of giving justice to the victim the court ended up with punishment of the victim. It’s simply a travesty of justice.”

Unfortunately, the entire incident in the courtroom has put the crime of the gang rape on the backburner, while all attention is focused on the alleged contempt. While the Araria police have shown great enthusiasm in sending the victim to jail, it has made very little progress in the actual complaint. The police have so far arrested only one person who has been accused of abetting the crime, while, the four unidentified men accused of raping her are still absconding.

Latest Development in the case:

Today, a special hearing by CJM Anand Kumar Singh took place and the rape survivor was granted bail on a PR bond. The two activists, Kalyani and Tanmay, her care givers, though, were denied bail. The Patna High Court, which had sought a report from the Araria district judge and had scheduled the hearing of the case on July 16. The matter was to be heard by Justice Dinesh Kumar Singh from his residence through video conferencing. But that hearing did not take place till now.

Reacting to the granting of bail to only the survivor, a report in The Hindu quoted JJSS as saying,

“the bail was given to the survivor on a PR bond which creates a further problem of separation from her primary support persons. It is also putting her through a whole new trauma which is going to be caused by her guilt for being the cause of her support persons being in jail, probably one of the very few people she had trust in and who stood by her in her crisis.”