Mumbai: The chief judicial magistrate court in Araria district in Bihar has ordered the release of the 23-year-old gang rape survivor who had been sent to jail for breaking into a verbal argument with the magistrate of the Araria magistrate court while recording her statement.
On July 10, the woman and two social activists, who are also her primary caregivers, were arrested after Araria magistrate Mustafa Shahi found them in contempt. All three have been in jail since then.
Their arrest had led to a nationwide outcry and several senior human rights lawyers had written to the Chief Justice of the Patna high court seeking urgent relief. Magistrate Shahi was also accused of having been insensitive towards the gang rape survivor in his decision to send her to jail.
Taking note of the objection, the high court, on two occasions, had scheduled hearings. However, it eventually asked the lower court to expedite the bail hearings, which had been suspended due to the lockdown in Bihar.
At short notice, the lawyers representing the woman and two activists, Kalyani Badola and Tanmay Nivedita, both working with Jan Jagran Shakti Sangathan (JJSS), a non-profit organisation, were asked to attend a court hearing through video conference on July 17. The court granted bail to the survivor. Kalyani and Tanmay’s bail pleas were rejected.
Kamayani Swami from JJSS who had attended the hearing said that the public prosecutor had merely read out the FIR to oppose their bail application in the court. According to the FIR, the woman had requested that Kalyani be allowed to be by her side when her witness statement (under Section 164 of the Code of Criminal Procedure) was being recorded.
The FIR claims that the woman did not cooperate with the magistrate and had refused to sign the statement unless Kalyani and Tanmay had read what was written on it. The FIR also claims that the survivor had tried to “snatch” the papers from the investigating officer. All three have been accused of having been contemptuous towards the magistrate and the investigation officer.
While the JJSS activists have rubbished the claims made in the FIR, they pointed to the fact that the police have so far not done much in the actual case of the gang rape. “The woman was sexually assaulted by four persons and one person had abetted the crime. The police have only arrested the abettor, while the others are still at large,” said Sohini, who works with JJSS.
The woman was allegedly gang raped on July 6 and had approached JJSS activists to help in the legal fight. On July 7, upon completing her medical examination, her complaint was lodged. Kalyani, Tanmay and others from the organisation were closely monitoring the investigation in the rape incident. But suddenly, after the survivor’s arrest, focus had to be shifted into getting her and the other two out of jail.
The survivor, along with other two, have been lodged at Dalsinghsarai jail in Samastipur district – 250 km away from Araria.
Although the court ordered her release today, the order copy was not made available immediately. “We will have to wait until tomorrow [July 18] for the order and since the jail is so far away, we will have to make necessary arrangements to get there. The police have refused to help in this,” Swami said, further adding that the woman will have to spend at least a day more in jail.
As for Kalyani and Tanmay, the lawyers have decided to move sessions court. But since Bihar is under complete lockdown and work at the lower courts is completely suspended, they will have to wait until July 20 to challenge the order.
JJSS members have called the July 17 order unfair as the survivor and Kalyani have been accused of identical “crimes”.
There is no clarity on Tanmay’s role besides the fact that he had accompanied the survivor to the court. Tanmay is a transman and is presently lodged at the Dalsinghsarai women’s jail which was converted into a quarantine centre to accommodate women prisoners from all across Bihar.
“While they are both susceptible to infection, this incident has also exposed the structural injustices meted out to trans people in the criminal justice system,” Sohini said.