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In a recent order dated 03.02.2020 passed by the Hon’ble Allahabad High Court granting bail to former Union Minister and BJP leader Swami Chinmayanand Alias Krishna Pal Singh, concerning the allegations of sexual harassment against him, Justice Rahul Chaturvedi stated that the accused and the complainant ‘both used each other’ ensuing that the sexual harassment accusations case, as well as other crimes against women, point to an amplifying tide of misogyny imbibed in the society.

The instant case came into the glare of publicity when an FIR under Sections 364[1] and 506[2] I.P.C. was registered against Swami Chinmayanand, Ex-Member of Parliament, in P.S. Kotwali, District Shahjahanpur in connection with a missing girl, Miss A, who was pursuing LL.M education from SS Law College, Shahjahanpur

The victim’s father Harish Chandra Sharma had alleged in his complaint that the mobile phone of the victim, was switched off since 23.08.2018 and through her  Facebook account he saw certain videos and pictures uploaded by his daughter indicating that his daughter and some other girls were being subjected to sexual harassment by the accused applicant and were being threatened by the hired goons as well as some other details of his daughter being in absolute distress that was directly concerning the accused. Eventually, a Special Investigating Team was constituted when the Hon'ble Apex Court took a suo moto cognizance of Writ (Crl) No. 2 of 2019, entitling “In Re: MISSING OF AN LL.M. STUDENT AT SWAMI SUKHDEVANAND LAW COLLEGE (SS LAW COLLEGE), FROM SHAHJAHANPUR, U.P.

During the pendency of the present bail application, another FIR was presented before the Court which was lodged by one Om Singh, Advocate, the legal supervisor of the Mumukshu Ashram, Shahjahanpur (said to be owned by the accused applicant Swami Chinmayanand alias Krishna Pal Singh), even before the FIR of Harish Chandra Sharma, father of Miss A, stating an incident against an unknown caller demanding a ransom of Rs. 5 crores and threatening to defame the alleged accused by making certain nude videos and pictures of the accused, viral in the social network if the ransom demand was unfulfilled. This fact started twirling in the print and the electronic media and the Hon'ble Apex Court took suo-moto cognizance of both the matters in Writ (Criminal) No. 2 of 2019 re: Missing of an LL.M student at Swami Shukhdevana Law College (SS Law College) from Shahjahanpur under section PIL-W on the new papers’ report as well as on online news portals stating therein that an LL.M student Miss “A” of the aforesaid College has been missing since 24.08.2019. Once the missing girl appeared in the court and only mentioned about her whereabouts and not the allegations made against the accused, contentions were made thereafter that “she had got fullest opportunity to share all her so-called atrocities faced by her during almost one year by the accused applicant, at least to her blood relations (parents) but astoundingly, kept mum and not only this, Miss “A” also maintained her aberrant silence before the highest Court of the country.”

  Thereafter when her statement and her Majid statement was recorded, she stated that she was subjected to consistent rape for a period by the accused, Swami Chinmayanand. She is subjected to indictments as well, that  “Miss “A” comes into contact with the applicant, seeks and enjoys his 'patronage' and 'benevolence' as well as on her family members and in lieu of that she was said to be exploited physically by the applicant, keeps mum throughout the entire long period for almost 9-10 months.’’


The judge, after observing outline of arguments and premises of the facts, while granting the Bail on several conditions concurrently scrutinized that the family members of the complainant had benefited when she was allegedly exploited. The judge further observed that the complainant did not even “whisper” to her family members about the alleged atrocities and sexual misadventures by the accused.

With this, the court concluded that the case was a ‘quid pro quo’ matter, while specifically considering the riveting question of whether the bail application should be allowed. If this is what fair examination means, while establishing the concept of validity and lucidity for adjudication of bail to any person, then it is astounding that apprehension of a victim and her family members are perceived as benefiters misusing the laws against women for monetary gains.

The structural exploitation is framed in a way that the ethics and the morals are trying to promote the sexual exploitation and deeming it to be natural for an accused of 72 years of age suffering from several ailments to be allegedly accused of this heinous crime and still offering an excuse to justify his liberty.

While observing the principles of law enunciated in the case of Nikesh Tarachand Shah v. Union of India and another passed in Writ Petition (Criminal) No. 67 of 2017 establishing categorically that seeking bail is the fundamental right of any person under the law, which cannot be suspended. While agreeing to the fairness of this, why would fairness and justness towards a survivor be ignored? Is it not also the inalienable duty of any court to protect the life and safety of a victim?

India is slow-paced for taking actions against the accused and the fact is not hidden from a judicial system that there have been past examples of cases where the survivors are at greater risk if the accused is out in the streets open. With growing India, it has become increasingly evidently normal for people to quickly pose an opinion calling the victims crazy or faulters or women abusing the very laws framed to protect them. These opinions have stood out deeply divided when it comes to the gender of the victim, be it any case or any politically acclaimed person mutilating his liberty and influencing through his power. Even if we neglect the accused’s political strength, the chauvinism cannot be justified.

The present matter is no different from casual misogynism which is unmistakably clear, where instead of necessarily sensitizing with the victim’s psychological needs, she is brashly questioned as to why she would not use her opportunity and be vocal about her agony. Has reporting of the sexual exploitations been easy in this country? The significant barriers are not invisible to anyone, yet the survivors have to go through the scrutiny.

In the instant case, the Hon’ble Judge while justifying his observation stated that “No doubt, the accusations levelled against the accused, Swami Chinmayanad (who is supposed to have a deep influence in the society as well in the administration because of his atomizing stature), are severe and there are reasonable apprehensions of his tampering with the evidence, which endangers the security of the presence of the rival party/s during the trial, as well as the circumstances, which are peculiar to the septuagenarian accused, who is suffering from several old-age ailments, as canvassed by the learned Senior Advocate of the applicant, has further agitated that the medical evidence of Miss “A” is also unable to sufficiently indicate that she was subject to sexual exploitation for a long time. Besides this, the police after holding an in-depth probe into the matter has submitted a charge sheet under Sections 376 C[3], 354 D[4], 342[5] and 506 I.P.C. The maximum punishment is under Section 376 C I.P.C, not less than five years but may extend to ten years because legislation in its wisdom has excluded this offence from the realm of 'Rape'. In this connection, it is worthwhile to point out here that the learned Magistrate has already taken cognizance of the offences and blurred chances of any tampering of evidence at this stage. It is also canvassed that accused of Case Crime No. 445 of 2019, Miss “A” was already admitted on bail in extortion matter by a coordinate Bench of this Court that there is no justifiable reason to deny the bail to the present applicant, Chinmayanad. As pointed out earlier, that both the parties crossed their limits and at this stage, it is very difficult to adjudicate as to who exploited whom? Both of them used each other.”

  • “Who exploited whom?”

India now being recognized for instituting the laws addressing gender-based violence have yet again concluded that while considering women victims, the law enforcement is still limping behind. The exploitation of women considered shameful is, however, still pictured as conspiracies. Before judging who might be benefited out these “conspiracies’ shouldn’t the stigma around blaming the women be addressed foremost while understanding the anguish. Shouldn’t the person herein accused holding a deep influence in the society, being a powerful entity in his hometown be questioned and refereed rather than considering his status and whether if his character would be demonized?

The Hon’ble Court analyzed the fact that the victim was initially silent about the incidences of sexual harassment but overlooked the trauma faced by the victim as to how the victim should be provided with the comfort to share her ordeal.

In a report called ‘Invisible Victims of Sexual Violence’, a series of interviews conducted by Human Rights Watch with victims, their family members, lawyers, civil society activists, advocates, doctors, forensic experts, government and police officials were published which goes on to reveal that they only talked to the ones who wanted to talk about their traumatic and dreadful experiences.

In the above-said report many experiences of the interviewees, which helped with the study as to what they go through and with how much sensitivity and dignity, the victims and their families are treated. While mentioning dreadful details in the report, it also talked about the following Judiciary’s interpretation:

“The judiciary too is not free from such harmful stereotypes. For example, a 2016 study examining 45 High Court judgments across the country noted many judges were continuing to describe rape as a crime that “dehumanizes” the woman, kills her personality, or ruins her marriage prospects—adding to the stigma, rather than framing rape as a violation of a woman’s bodily dignity and integrity.’’[6]

  • Besides this, the Court significantly did not fail to observe that the bail application of Miss A was allowed too, concluding that there should be no harm to anyone’s liberty to apply for bail and acknowledging this, the accused must also be entitled to Bail. It is pertinent to mention herein that while considering the right to liberty of a person, the Court should not undermine the safety of the victims.
  • In an article elucidating the concept of personal liberty aspects as follows were discussed.

“If the judicial process fails the people’s sense of justice, violence fills the vacuum, and then the disputes are settled not in the courts but the streets. The basic issues which dive deeper into the structure of the judicial system make it clear that there are widening discrepancies between the formal law in the books and law in action in law courts. Although the judge’s power contributes continuity to the court, each judicial decision evolves from an unpredictable social process. This assertion may confuse the layman whose impression is that a judicial decision is arrived at in a relatively straight forward manner; facts are presented, the accused judged guilty or not, and a 'reasonable’ sentence is imposed. Legal uncertainty creeps in when the judge attempts to balance the structural variable reflected in the mottos: ‘Treat similar cases similarly’ and ‘Make the punishment fit the crime’, both of which call for strict application of the ‘letter of the law’. On the other hand, the judge must be mindful of the legal dicta, ‘treat each case on its merits’ and ‘fit the punishment to the criminal’, which call for a flexible interpretation of the law. This inner contradiction of the- legal system and the fundamental dilemma of the judicial process funnels unpredictability and uncertainty in the structure of the judicial system.”[7]

 “Recognition of the power of political state to denounce and to punish acts deemed inimical to the welfare of community appears to be as old as state itself. The state asserts the right to take the liberty or even the life of the individual. The only purpose for which (state) power can rightfully be exercised over any member of a civilized community against his will is to prevent harm to others.”[8]


Judges conferring these observations and interpretations only make a bigoted and intransigent mess instead of spreading contemporary awareness amongst the people and search for the real cause as to what is going on. This only indicates that it is prevalent to not realize the importance of victim protection. It is essential for the Judiciary and the law enforcement agencies to recognize their duty of providing adequate empathy towards the victims of sexual exploitation and realize that enough arrangements are being made and enough assistance are provided to them for expressing their experience without adhering any insensitivity.


[1] Section 364 of IPC: Kidnapping or abducting in order to murder.—Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being mur­dered, shall be punished with 1[imprisonment for life] or rigor­ous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Illustrations

(a) A kidnaps Z from 2[India], intending or knowing it to be likely that Z may be sacrificed to an idol. A has committed the offence defined in this section.

(b) A forcibly carries or entices B away from his home in order that B may be murdered. A has committed the offence defined in this section. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for life, or rigorous imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Court of Ses­sion—Non-compoundable.

[2] Section 506 of IPC: Punishment for criminal intimidation.—Whoever commits, the offence of criminal intimidation shall be punished with imprison­ment of either description for a term which may extend to two years, or with fine, or with both; If the threat is to cause death or grievous hurt, etc.—And if the threat is to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprison­ment of either description for a term which may extend to seven years, or with fine, or with both.

[3] [376C. Intercourse by superintendent of jail, remand home, etc.—Whoever, being the superintendent or manager of a jail, remand home or other places of custody established by or under any law for the time being in force or of a woman’s or children’s insti­tution takes advantage of his official position and induces or seduces any female inmate of such jail, remand home, place or institution to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be pun­ished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine. Explanation 1.—“Superintendent” in relation to jail, remand home or other places of custody or a women’s or children’s institution includes a person holding any other office in such jail, remand home, place or institution by virtue of which he can exercise any authority or control over its inmates. Explanation 2.—The expression “women’s or children’s institu­tion” shall have the same meaning as in Explanation 2 to sub-section (2) of section 376.]

[4] (1) Any man who--

(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

(ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking.

[5] 342. Punishment for wrongful confinement.—Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

[6] Theladiesfinger.com, January 4, 2017, http://theladiesfinger.com/high-court-judgments-2016-in-rape-cases/ (March 1, 2017).

[7] https://shodhganga.inflibnet.ac.in/bitstream/10603/129455/6/06_chapter%201.pdf

[8] John. Stuart Mill, On Liberty (1859) ‘Introductory’. Also see Arthur L.Harding, Fundamental Law in

Criminal Prosecution (1959).