HC order playing on semantics, argues SC appeal against TV journalist Hiremath's anticipatory bail

New Delhi: The 22-year-old victim in the Mumbai-based TV anchor Varun Hiremath rape case has moved a plea before the Supreme Court alleging that the Delhi High Court had "erroneously" granted Hiremath anticipatory bail in the matter and in doing so "has rendered the conscious amendments to the law on 'rape' and 'consent' meaningless" by playing on the semantics of "insistence" versus "force", while ignoring the victim's claims that the "penetrative acts were committed in an atmosphere of aggression".

The Special Leave Petition, which challenges the earlier Delhi High Court order granting Hiremath anticipatory bail, will be heard before a division bench of Justices Navin Singha and Ajay Rastogi today (Friday).

The plea, accessed by Millennium Post, goes on to state that a "critical and erroneous assessment" of section 164 statement of the victim (made before a magistrate), and a summary evaluation of the nature of "consent", when Hiremath has not even faced a day's custodial interrogation, shows that "the High Court has erroneously granted anticipatory bail in such heinous offences of rape and assault".

It further states the High Court order does not adhere to the law laid out that consent to any sexual act has to be unequivocal and voluntary and that "consent" obtained by putting the victim in fear of hurt does not amount to valid consent and that the order states that the victim's "continued participation" in the sexual acts upon the accused's "insistence" is an indicator of no "coercion or force".

"Despite being evident from the FIR, and also the Section 164 CrPC statement, the Respondent No.1 (Hiremath) was physically and verbally aggressive towards the petitioner, the High Court fails to appreciate that any lack of physical resistance or compliance that may have been given by the petitioner was in such an atmosphere of aggression and fear, which would therefore not fall within the scope of consent as defined and stipulated u/s 375 IPC (sexual intercourse without will)," the petition reads.

It also claimed that the High Court's order holds that Hiremath's conduct was simply that of "insistence" not amounting to coercion or force, but the same cannot be decided at the stage of anticipatory bail and is a matter of trial.

The petition also challenged the part of the order where Hiremath's conduct, that of "deliberate evasion of the law and avoiding summons", was said to be within his fundamental right as an accused to seek legal remedies. "This holding is legally untenable and is also an absurd and dangerous proposition in as much as it approves and grants judicial sanction of evading the law until one is granted anticipatory bail," the plea added.

On February 20, Hiremath allegedly raped and sexually assaulted the 22-year-old woman inside a five-star hotel here following which an FIR under relevant sections was lodged at the Chanakyapuri Police Station. After absconding for over 50 days and getting his anticipatory bail plea dismissed by a lower court, he was given the same by the Delhi High Court.