Dismissing an appeal challenging a chargesheet in a rape case and a local court’s cognisance of it, the Allahabad High Court last week took serious note of the appellant’s counsel using foul language and attacking the character of the victim during his submission, saying that “such allegations… constitute an abuse of the process of law”.
Expressing concern over the counsel’s conduct, a bench of Justice Anil Kumar-X observed in the judgment dated January 29, “It is not expected from a member of the Bar to place reliance on such material. Such averments are contrary to settled law . Any attempt to portray a woman as being of ‘easy virtue’ or to cast aspersions on her moral character is wholly irrelevant and is expressly barred under Section 53A and the proviso to Section 146 of the Indian Evidence Act, 1872.”
Saying that such allegations amounted to character assassination, the bench said, “Such allegations violate the woman’s right to dignity and privacy under Article 21 of the Constitution of India, and constitute an abuse of the process of law. It is well settled that a woman’s past conduct or character cannot be used to discredit her or defeat her legal rights. The impugned statements, therefore, deserve to be expunged and ignored for all purposes.”
The court was hearing an appeal filed by a pharmacist of a government hospital facing a rape case lodged by a Dalit woman in May 2022. The woman alleged that he raped her after giving her a sedative when she visited his clinic.
The police filed a chargesheet on charges of rape under the Indian Penal Code and under sections of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. A local court took cognisance of the chargesheet in November 2022.
What the counsel said in court
The counsel for the appellant submitted before the court that the victim was a habitual blackmailer who extorted money. In support of his submission, he drew attention to affidavits by five locals alleging that the victim, a woman of questionable character, would stop people midway, demand money, and threaten false implication in criminal cases.
The counsel further submitted that the victim herself filed an affidavit in April 2022, stating that she had exaggerated the incident in the First Information Report, allegedly because she was upset with the appellant for refusing treatment. The counsel contended that these affidavits sufficiently established that the victim was in the habit of blackmailing people. He also argued that the FIR was lodged after an unexplained delay of nine months and that no date or time of the alleged incident was disclosed.
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The additional government advocate, in his submission, said the statements of the victim before the police and the magistrate were recorded promptly, and she consistently supported the prosecution’s case. It was contended that the chargesheet was submitted on the basis of legally collected evidence and that the order taking cognisance does not suffer from any illegality.
‘Serious lapse in professional conduct’
After hearing the submissions, the bench of Justice Kumar observed, “Court deprecates the conduct of the learned counsel for the appellant, who has adopted an improper and impermissible practice of annexing and relying upon affidavits containing scandalous allegations questioning the character and dignity of a woman. Such pleadings are wholly unbecoming of an advocate and strike at the very foundation of ethical advocacy.”
Further, the court observed that the “attempt to browbeat the court by openly stating that its order would be challenged before the Hon’ble Supreme Court, as well as making incorrect and misleading statements regarding earlier orders passed by this court, reflects a serious lapse in professional conduct”.
Warning the appellant’s counsel to “exercise due care and restraint” while making submissions before the court, the bench observed, “During the course of arguments, this court repeatedly requested learned counsel for the appellant to confine his submissions to the material available in the case diary, as affidavits relied upon by him were admittedly not part of the investigation record. Despite repeated attempts to restrain him from indulging in unnecessarily lengthy arguments, learned counsel insisted on advancing submissions based on extraneous material and stated that he would argue the matter at length and, if necessary, challenge the order before the Hon’ble Supreme Court.”
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“The affidavits relied upon by learned counsel cannot be considered, as they do not form part of the case diary. Moreover, the language used therein, is wholly unacceptable,” the bench stated in the order.
‘Nothing on record…to discredit or disbelieve her version’
In its order, the court stated that the victim’s statement has remained consistent from the beginning. “The allegations levelled by her stand duly corroborated by her statements recorded under Sections 161 and 164 of the Code of Criminal Procedure. There is nothing on record at this stage to discredit or disbelieve her version. As regards the delay in lodging the First Information Report, it is well settled that, particularly in cases of sexual offences, such delay cannot be evaluated at the stage of taking cognisance and is a matter to be examined during trial,” it added.
The court also observed, “The affidavit allegedly filed by the victim also appears, prima facie, to be prepared under influence, and cannot be relied upon at this stage”
The court dismissed the appeal as lacking merit, upheld the chargesheet and cognisance order, and directed that the trial proceed in accordance with law.
