Material prima facie shows Tejpal was involved in offence, says judge
PANAJI, December 1, 201
Tehelka editor-in-chief Tarun Tejpal.
The statement of victim’s colleague prima facie corroborates her version
Rejecting Tehelka editor-in-chief Tarun Tejpal's anticipatory bail plea, District and Sessions Court, Panaji, on Saturday held that the material on record prima facie indicate that he is involved in committing acts which constitute offences of custodial rape and outraging the modesty of the woman.
“The statement of the victim and the documents in the form of emails, etc., details of which need not be reproduced here, prima facie indicate that the applicant, who was her mentor and father figure, had not only outraged her modesty but had misused his position, betrayed her trust and violated her body,” District and Sessions Judge Anuja Prabhudesai observed in her 25-page order.
Referring to various judgments of the Supreme Court, Ms. Prabhudesai said the question for her determination was whether Mr. Tejpal is entitled to bail. “The answer to which in my considered view is nothing but in the negative,” she said.
The material on record, prima facie, indicated that on November 18, a week after the Think Fest event in a hotel in Goa, the victim had sent an email complaint to the Managing Editor of Tehelka, complaining of sexual assault by Mr. Tejpal on November 7 and 8 in the hotel lift.
The judge said though there was delay in reporting the matter to the Managing Editor, it was not material at this stage. “It has to be borne in mind that delay in lodging the report is not necessarily fatal and can always be explained. The yardstick of unexplained delay in filing an FIR, which usually goes in favour of the accused, cannot be applied in cases involving sexual offences.”
Mental trauma
“The victims of such crime undergo physical as well as mental trauma and humiliation. Their reputation, dignity, honour, future prospects and financial security are at stake and often the victims and their family members are subjected to social ridicule,” the order stated and said, “These circumstances often lead to delay in reporting the incident.....Consequently, in my considered view, the veracity of the complainant or the statement of the victim cannot be doubted on the ground of delay,” the judge said.
The Court observed that the statements of the colleague of the victim, prima facie indicated that she had informed them about the incident on the same day. “Though such corroboration is not strictly necessary, the statement of her colleague prima facie corroborates her version, which at this stage need not be sieved, sifted, weighed and appreciated.”
The judge said the email correspondence on record prima facie indicated that Mr. Tejpal had not disputed the incident. Its initial correspondence further indicated that he was aware that the victim was not a consenting party but it was only at a later stage that he had changed his version, apparently for obvious reasons.
“Under the circumstances, the applicant cannot be heard to say that the subsequent conduct of the victim is contrary to the allegations made in the complaint to the Managing Editor and the insinuations that the victim was a consenting party or that the alleged act was only a light-hearted bantering cannot be accepted,” she said.
“Thus, the material on record prima facie indicates that the applicant is involved in committing acts which constitute offences under the IPC Section 354A [outraging the modesty of a woman] and 376 (2) (K) [custodial rape],” the judge said.
The court said the offence under IPC Section 354A is punishable with imprisonment of seven years whereas the offence under the IPC Section 376(2) (K) is punishable with imprisonment which can extend to life.
“This, being the case, there can be no dispute that the offences alleged are of serious nature. The gravity of the offence, though not the sole criteria, is one of the essential factors, which would disentitle the applicant for bail,” the judge said.
“Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. It is held that very often that interrogation in such condition would reduce to a mere ritual.”
No political pressure
The judge rejected the defence contention that Tejpal was being prosecuted at the behest of persons with vested interest or due to political pressure, saying it had no merit.
Tejpal refused bail, arrested, prosecution builds rape case
Smita Nair : Panaji, Sun Dec 01 2013, 04:03 hrs
The Goa Police Crime Branch arrested Tarun Tejpal, accused of sexually assaulting a young colleague, at 9.20 pm Saturday after the Principal District and Sessions Court, Panaji, rejected his petition for anticipatory bail.
Principal Judge Anuja Prabhudesai gave her order after the prosecution sought custodial interrogation citing that the victim's version was consistent, that the CCTV footage confirmed her allegations to a certain extent, and that Tejpal's own admission of "light-hearted bantering" needed to be probed.
With Tejpal booked under rape sections, including section 376 (d) (k) of the IPC, the prosecution put up a strong case for rape by a man holding fiduciary relationship. "You were in a position of trust, you betrayed that trust. You were her father's friend, and also a father figure to her. And you go ahead and say you 'misread the situation'," said public prosecutor Saresh Lotlikar.
"The victim's statement is she was sexually assaulted and the CCTV footage confirms the position to a certain extent. Further, the victim was in a position of trust. It is in this background that the case should be approached," he said.
The prosecutor also accused Tejpal of "changing his statement from time to time". "This is not what one calls 'to cooperate'."
Tejpal was taken to Goa Medical Hospital after his arrest, at around 10.20 pm, and will be produced in a holiday court Sunday where police will seek his remand. He is likely to be kept in the lock-up at Panaji.
While the judge began studying the petition for anticipatory bail at 2.30 pm, the dictation of her order took four hours, and it was finally pronounced at 8.05 pm.
After Investigating Officer Sunita Sawant said Tejpal will have to behave like any other accused in custody and share the food as provided in lock-up, the judge pointed out that even in central jails, home-cooked food is allowed. This was then agreed upon, with conditions. The defence petition that Tejpal be allowed to meet his lawyers during the course of the interrogation was also allowed after they pointed out that under the amended CrPC, lawyers can meet accused during interrogation for a few minutes daily.
The family was allowed to bring a change of pair of clothes for the period of custody. While Tejpal seemed composed and his family remained hopeful, brother Minty fainted outside Crime Branch minutes after Tejpal was placed under arrest.
Earlier, in the morning, a calm Tejpal appeared at the Crime Branch office in Dona Paula, flanked by his family members, including his wife and daughter and Minty. Before he left for the court, he told the media, "I am in Goa to participate in the probe."
When Tejpal reached the court at 10 am, again with family members, a man tried to attack him as he was getting off his car. Given the media commotion, Tejpal left for the Crime Branch at 5 pm quietly. He was still there when his anticipatory bail petition was rejected. The Investigating Officer arrived there at 9 pm to formally place him under arrest.
Opposing the bail petition, public prosecutor Lotlikar said: "There was a festival going on in a five-star hotel organised by the accused, which a lot of luminaries were attending. Incidentally, one of the persons interviewed in the festival was a rape victim. And, simultaneously, this female journalist says that she was sexually abused in the festival by a person who is her employer. The investigation will bear that out."
Countering the questions raised regarding the victim's statements, Lotlikar put it on record that the "victim's versions and statements have been absolutely consistent. There are no embellishments." This is expected to be the prosecution's strongest stand in the case, said police sources.
On the defence's contention about the victim coming forward after several days of the alleged assault and the manner in which she had done this, Lotlikar said this had to be considered in the light of her background. "She discussed it with her immediate colleagues. Her father is bedridden and she is also the sole breadwinner of her family. The accused's daughter is her close friend. Tejpal himself was known to the family as the victim's father is the accused's friend. She herself has admitted to the investigating officer that she got the job in Tehelka because of Tarun Tejpal. If the festival is on, and the lady reacts, there would have been possible commotion."
Pointing to the stress the victim underwent, Lotlikar said: "The lady had to make the decision of her life, for fear of forfeiture of salary. After discussing it with her colleagues, she informed her Delhi boss, in an email. The email somehow leaked and reached the media. The National Commission for Women took cognisance of the reports and directed the Goa Police to register an FIR."
The prosecution also took on the defence attemps to raise questions regarding the victim's character, pointing to her "conduct" before and after the alleged sexual assault. "The accused is like a chameleon, changing his colour," said Lotlikar. "He has been changing his version. The conduct of the accused is as relevant as the conduct of the victim... From the first version of the victim, she has been consistent."
"How much courage is required by a lady to come out in public and say 'I have been violated by a person who is like a father figure'. And against this you speak of a long delay in filing of complaint!" said Lotlikar.
At 11.30 am, in the middle of the arguments, the prosecution submitted an "assessment report of the CCTV footage to court", which is being seen as circumstantial material evidence. While Tejpal's counsel Geeta Luthra objected, saying that the assessment report should include "the CCTV footage in its entirety", and not just restrict it to minutes alleged by the victim, the judge turned it down.
The prosecution then brought Tejpal's apology for "light-hearted bantering", in his first email to the victim, to the court's notice. "What constitutes this encounter needs to be probed. This encounter should be a matter of investigation. The girl's version is with us. We need Tejpal in custody to get his version," said Lotlikar.
On Tejpal's allegations of a "tainted investigation", the prosecutor said, "Learned counsel (Luthra) herself has conceded that the FIR was rightly registered. Enough rope has been given by the Goa Police to the accused, to the point of being accused of dragging the matter. When police went to look for you, you weren't there. Your relatives refused to cooperate. You then approach the high court anticipating arrest and then withdraw the application... He (Tejpal) wants to cooperate on his terms, whereas we only want your custodial interrogation."
Lotlikar also noted that Tejpal had delayed coming to Goa. "The accused may say he has no trust in the Goa Police, but having chosen to commit the act in the jurisdiction of the Goa Police, he cannot complain about the Goa Police investigating it."
"You are keen to misguide," Lotlikar added. "And now you are saying police are not considering your version of the matter. Your version can be verified only by cross-checking in interrogation... Out of custody, there are people to guide you, to tell you, educate you, on what is to be said."
On the defense's contention that the law was draconian, the public prosecutor argued, "To pave the way for this draconian law, and to have the amendments in place, somebody had to pay with her life. Whether it is draconian or not, it is the law of the land, and now you can't lament that the law is draconian and the accused has to be treated in a different manner."
The court was also apprised of a Tejpal family member trying to "influence" the victim's family, which was taken on record by the judge. "His last conduct doesn't warrant that he should be at large," said Lotlikar.
The otherwise composed family of Tejpal, sitting in the back row, looked upset when the prosecution added, "Your contention is that your immaculate reputation will be damaged. May we tell you that its already gone for a toss. And mere detention under police custody won't do any further damage."