In a 21-page order on January 15, sessions court judge Anuja Prabhudesai said the “victim’s statement is genuine”. “The persona of the victim and her social strata are not relevant to decide the (bail application). Similarly, the fact that she is liberated, emancipated modern woman who demanded (a) written apology rather than suffering in silence are no grounds to believe that she was not traumatised or that the act was consensual or could be consensual. Even on merit, the character of the victim or the past conduct… or the alleged aftermath on the stormy evening would not be relevant for deciding the issue of consent,” the order stated.

The court examined CCTV footage, the emails and SMS messages between the victim and Tejpal, the statement of the victim, her boyfriend, journalists, and Tehelka colleagues in whom the victim confided immediately after the alleged incident.

The bail hearing was conducted in-camera partially.

According to the written order, senior counsel Amit Desai, representing Tejpal, argued that the “social background of the victim, her persona, sense of understanding and values are relevant factors in deciding the (bail) application”. Stating that ingredients of IPC section 376 (rape) is not made out, the defence relied on Supreme Court observations in two cases where “the apex court has drawn distinction between the tradition-bound Indian woman and a woman from the western society”.

The order cites Desai’s arguments that the “victim is an educated emancipated woman who wanted the apology to be published on the letterhead of Tehelka . She cannot be compared to a girl from tradition-bound non-permissive society of India who would be extremely reluctant to make such revelation in fear of being shunned by the family or the society”.

Placing “this background” to allege “material discrepancy in the victim’s statement vis-a-vis CCTV footage, delay in lodging the complaint as well as subsequent conduct of the victim, more particularly her conversation with her friends”, the defence cited “suspicion about the genuineness of the allegations”.

Countering this argument, senior counsel and special prosecutor S D Lotlikar told the court that “societal strata and moral status of the victim are irrelevant, as the law does not give licence to any person to sexually abuse women even if they have liberal views on sex”.

The prosecution said material evidence indicated that Tejpal had not disputed the allegations levelled by the victim. Lotlikar said the victim stood by the allegation and had never said that the act was consensual.

The court noted in the order: “It is not possible at this stage either to examine the material meticulously and to look into the discrepancies, omissions, or contradictions, or to read in between the lines and find out as to whether the evidence is sufficient to infer guilt of the applicants or not. It is enough if sufficient grounds are shown to connect the applicants with the offence. As stated earlier, the statement of the victim indicates that she was sexually abused and that the act was not consensual. In terms of Section 114 A of the Indian Evidence Act, even at the stage of trial, the presumption would be that she did not consent. Hence, at this stage it cannot be presumed otherwise.”

“I have also viewed the relevant CCTV footage and in my considered view, the same does not falsify the version of the victim. It is also pertinent to note that the emails/SMS messages exchanged, between the applicant and the victim prima facie supports the version of the victim and rules out the possibility of consensual act or false implication,” judge Prabhudesai said in the order. Tejpal has been in custody since November 30 and is currently in judicial custody at Sub Jail Sada, Vasco da Gama.