Bail to rape accused raises questions about the fundamental aspects of jurisprudence
Is a court a reformatory or a body to ascertain that the laws are executed and obeyed properly and to ensure that no person is deprived of justice? The example furnished below relates to the Madhya Pradesh High Court, and it should encourage the Supreme Court to revisit certain fundamental aspects of jurisprudence so that no action of the court is perceived by the lay person to be out of the ordinary: “The petitioner will monitor the saplings because human existence is in peril because of deforestation and the court will not entertain any callousness by the petitioner. There should be a report on the growth of the saplings submitted to the court every three months. Any shortcoming in looking after the plants can deny him the benefits of bail. The petitioner has the freedom to plant the saplings at a place of his choice (translated from Hindi).” This is part of a bail order by Justice Anand Pathak of the Gwalior Bench of the High Court. The case is not related to environmental degradation but rape of a woman. The accused, an 18-year-old, is charged under Sections 363, 376(2)(n) (repeated rape on the same woman), 342 and 323 of IPC and Section 5/6 of POCSO Act. The accused argued it was a false case but, in the same breath, sought bail to give him a chance at “course correction to purge his misdeeds (sic)”. He promised to plant saplings as part of his penance.
The judge granted him bail, this October 28, allowed him to plant saplings, observing he indeed needed a chance: “This direction is made by this court as a test case to address the Anatomy of Violence and Evil (sic) by process of Creation (sic) and a step towards Alignment with Nature (sic). The natural instinct of compassion, service, love and mercy needs to be rekindled for human existence as they are innately ingrained attributes of human existence.” The same judge granted bail to another 23-year-old rape accused on November 8, noting that he be given a chance for course correction and reform himself. The accused, saying had “learnt the lesson the hard way”, also wanted to perform community service. Jurisprudence says the bail order does not touch upon the merits of the case. The judge averred as much while pronouncing the bail order. However, what does the portion of the order saying, “applicant is a young boy aged 18 years without any criminal record, therefore, a chance be given to the applicant for course correction”, imply? Bail is relief from incarceration, not the crime. It is not a punishment either. Two, what if “giving him a chance for course correction” is mistakenly perceived as pronouncing a judgment in the rape case? Three, the state of the alleged victim who, irrespective of the merits of the case, only sees her alleged rapist getting bail. Temporary freedom to do “course correction” and plant saplings in a rape case?