Legal RoundUpWeekly Rewind

The 12th Episode of SCC Online Weekly Rewind featuring Devika Sharma, Senior Legal Editor bringing you the most important and interesting stories from the field of law is out now! Check out the written episode below.

TARUN TEJPAL CASE

22-pointer comprehensive analysis of Tarun Tejpal’s acquittal order

The most highlighted development of the week was the judgment of the Additional Sessions Court at Mapusa, Goa, which acquitted Tarun Tejpal, former Editor-in-Chief of Tehelka, who was accused of committing rape on a journalist. The court gave benefit of doubt to Tejpal, noting crucial lapses in investigation and major contradictions and improvements in testimony of the prosecutirx. The incident is of 2013 which allegedly happened during THiNK Fest, organised by Tehelka in Goa that year. Now, the State of Goa has appealed against this order before the Bombay High Court. We have studied the entire 527-pages judgment of the Sessions Court and prepared a 22-pointer comprehensive analysis.

https://www.scconline.com/blog/post/2021/05/28/rape-accused-tarun-tejpal/


SUPREME COURT

Courts need to be extra careful while dealing with Dowry Death cases; Guidelines issued

Now moving to the Supreme Court, In an important ruling, the Supreme Court has held that Courts need to be extra careful while conducting criminal trials relating to Section 304­B, IPC that deals with Dowry death.

The Court expressed grave concern on the fact that, often, Trial Courts record the statement of an accused under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. The Court said that the examination of an accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness.

The Court hence issued elaborate guidelines on trial of dowry death cases.

https://bit.ly/3fwnpHj

Apprehension of COVID-19 a ground for anticipatory bail: Supreme Court stays Allahabad High Court’s order

In another matter, A vacation bench of the Supreme Court stayed the Allahabad High Court’s order wherein it was held that apprehension of being infected with COVID-19 after coming into contact with authorities was a valid ground for anticipatory bail.

The High Court had granted anticipatory bail to one Prateek Jain “on account of special conditions and on special ground” and had also issued direction on grant of anticipatory bail on such special grounds.

The Supreme Court staying the said order, directed that the Courts shall not consider the said directions while considering applications for anticipatory bail and must decide each case on its merits.

https://www.scconline.com/blog/post/2021/05/25/apprehension-of-covid-19-a-ground-for-anticipatory-bail-supreme-court-stays-allahabad-high-courts-order-heres-all-you-need-to-know-about-the-case/ 


HIGH COURTS

Delhi High Court

Seizure by police of oxygen concentrators and Covid-related equipment sold at high-profit margins. Is it illegal?

In another matter, the Delhi High Court has confirmed that it is legal for the police to seize oxygen concentrators and other Covid-related equipment being sold at high profit margins in contravention of laws, rules and executive orders.

https://www.scconline.com/blog/post/2021/05/27/oxygen-concentrators/

 

Madras High Court

Malicious prosecution: What, how and who, discussed

Down south, The madras High Court has held that to succeed in a suit for malicious prosecution, the acquittal of the plaintiff alone is not sufficient. Rather, the plaintiff is obliged to prove (i) that the prosecution was without any reasonable and probable cause, and (ii) that it was instituted with a malicious intention, and (iii) that he suffered damage.

Apart from this, the Court also discussed, in detail, the duty of civil court in cases relating to malicious prosecution and also the burden of proof.

https://www.scconline.com/blog/post/2021/05/25/malicious-prosecution/

 Gujarat High Court

Compounding of offence under S. 138 NI Act after conviction can be allowed in exceptional circumstances 

In a ruling on Negotiable Instruments Act, the Gujarat High Court compounded an offence under Section 138 of the Negotiable Instruments Act and set aside the conviction and sentence of the accused, while observing at the same time that generally powers under Section 482 CrPC are not to be exercised when a statutory remedy is available under law but considering the fact that the parties have settled the dispute amicably, the compounding of the offence was permitted.

https://www.scconline.com/blog/post/2021/05/26/section-138-ni-act-4/

 Madhya Pradesh High Court

Directions issued to Police, Judicial Magistrates on arrests and bail

On bail jurisprudence, The Madhya Pradesh High Court has issued elaborate directions to Police and Judicial Magistrates in relation to arrests and bail after it noticed that District Judiciary is extremely tight-fisted when it comes to granting bail. 

The Court noticed that applications are being routinely dismissed on cyclostyled grounds that the offence alleged is serious or that the investigation is still in progress or that the accused may influence the witnesses. In such circumstances, huge burden of bail matters has been shifted to the High Court. Hence, the issuance of certain directions was necessary

https://www.scconline.com/blog/post/2021/05/28/mp-hc-district-judiciary-is-extremely-tight-fisted-when-it-comes-to-granting-bail-leads-to-burden-on-the-high-court-directions-on-arrest-and-bail-issued-to-police-judicial-magistrates/ 

 Jammu and Kashmir High Court

Bail cannot be granted on the ground of delay unless the matter was pending for 5 years or more

In another bail matter, the Jammu and Kashmir High Court held that bail cannot be granted on grounds of delay unless the matter was pending for 5 years or more.

In the case before the Court, though the applicant had been behind the bars for over 13 years, but the appeal against the order of conviction and sentence dated 23rd July 2020 was filed only in August 2020.

https://www.scconline.com/blog/post/2021/05/28/jk-hc-bail-cannot-be-granted-on-the-ground-of-delay-unless-the-matter-was-pending-for-5-years-or-more/

 Punjab and Haryana High Court

All-men SIT to investigate a rape case: Insensitive and deplorable 

In an important matter, a case where an all-men SIT was deployed to investigate a rape case, the Punjab and Haryana High Court said that it was rather intriguing that no lady police official was involved, which is even otherwise the requirement of law in cases of this kind.

The case pertains to 38-year-old widow giving into the sexual demands of CIA officials, after her 19-year-old son was picked up by them in broad day light while he was recovering from Covid-19 infection at his residence. The woman had also alleged that an FIR, allegedly a fake one, was registered against her son under NDPS Act by planting contraband on him so as to arm twist the petitioner.

Reacting to the allegations, the Court said that the same are so grisly and frightful, one can only hope, that the same are fictitious. 

https://bit.ly/2R7STKD


 LEGISLATION UPDATES 

Union Ministry of Health approves guidelines for ‘Near to Home COVID Vaccination Centres (NHCVC) for elderly & differently-abled citizens 

The Union Ministry of Health has accepted the recommendations by the National Expert Group on Vaccine Administration for Covid-19 on the proposed guidelines for Near to Home COVID Vaccination Centres for Elderly & Differently Abled Citizens.

The Technical Expert Committee’s recommendations are aimed to ensure vaccination of Senior Citizens and Differently Abled population having limited mobility due to their physical condition.

https://www.scconline.com/blog/post/2021/05/27/union-ministry-of-health-approves-guidelines-for-near-to-home-covid-vaccination-centres-nhcvc-for-elderly-differently-abled-citizens/

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were notified by the Ministry of Electronics and Information Technology in February, 2021. The Rules provided three-month timeline to social media intermediaries in order to comply with the New IT Rules by May 26, 2021.

https://www.scconline.com/blog/post/2021/05/26/information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-2/

Case BriefsDistrict Court

District and Sessions Court at Panaji: After a trial which went on for 7 years 2 months and 25 days, Kshama M. Joshi, Additional Sessions Judge, Mapusa, acquitted Tarun Tejpal, former Editor-in-Chief of Tehelka, who was accused of committing rape on a journalist working with Tehelka. The court gave benefit of doubt to accused, noting major lapses in investigation and major contradictions/improvements in testimony of the prosecutirx. The incident is of 2013 which allegedly happened during the annual THiNK Fest of Tehelka organised in Goa.

Allegations against the accused

The prosecution’s case was that between 7th and 11th November, 2013 the THiNK Fest was organised by Tehelka Magazine in Goa. It is alleged that during that fest, Tarun Tejpal, the then Editor-in-Chief of Tehelka, had sexually assaulted a female journalist associated with the magazine. It is alleged that he committed the offence of wrongful restraint/confinement, sexual harassment and rape.

The prosecutrix had alleged that on 7-11-2013 (one of the nights of the event) on the pretext of “waking up the American actor Robert De Niro” (the Chief Guest at the festival, for whom the prosecutrix was chaperoning), the accused took her to one of the guest lifts of Hotel Grand Hyatt where he wrongfully confined the prosecutrix using force against her wish and committed rape on her. Further, on the next night of 8-11-2013, the accused took her to another guest lift and again sexually assaulted her.

On completion of police inquiry, the trial court framed charges against the accused of offences punishable under Sections 354, 354-A, 354-B, 376(2)(f), 376(2)(k), 341 and 342 IPC.

Defence of the accused

Case of the accused was of total denial. He submitted that no such incident as alleged took place and that there was a drunken banter between him and the prosecutrix.

Trial Court’s decision

The Additional Sessions Judge of the District and Sessions Court at Panaji determined as many as six questions to return a finding of Not Guilty in favour of the accused. The court answered five out the six questions in favour of the accused:

(a) Whether accused committed rape as defined in Section 375(b) and (d) IPC?

Answered in negative, in favour of the accused.

(b) Whether accused used criminal force to outrage modesty of the prosecutrix?

Answered in negative, in favour of the accused.

(c) Whether accused had physical contact and made advances involving sexual overtures causing sexual harassment to the prosecutrix?

Answered in negative, in favour of the accused.

(d) Whether accused used criminal force with intention of disrobing the prosecutrix?

Answered in negative, in favour of the accused.

(e) Whether accused was in a position of trust or authority and in a position of control or dominance over the prosecutrix?

Answered in positive, against the accused.

(f) Whether the prosecutrix was wrongfully confined in the lift by the accused?

Answered in negative, in favour of the accused.

Law and Analysis (reasons given by the court)

1. Burden of proof

At the very outset, the court recorded that the burden is on the prosecution to prove beyond reasonable doubt that the accused committed the offences as charged, and that burden does not shift.

2. Victim’s testimony in a rape trial and its probative value

The court noted the settled position of law that the conviction of the accused in cases of rape or sexual harassment can be based on the sole testimony of the victim if the court finds that her deposition is of sterling quality which inspires confidence and is absolutely trustworthy, and that immoral character or previous sexual experiences of the victim is not relevant for deciding such cases.

After this, the court noted that the victim is well educated, a journalist well conversant with amendments to IPC after Nirbhaya’s case and who has dealt with issues relating to offences against women including rape and sexual assaults. Based on deposition of prosecution witnesses, it was noted that the prosecutrix is extremely capable, intelligent and independent person.

2.1. Possibility of doctoring of events with help of experts

According to the court, there are many facts on record which create doubt on truthfulness of the prosecutrix. There was a delay in lodging FIR and the prosecutrix refused to go for medical examination. She was in touch with lawyers even prior to drafting the complaint and sending to the Managing Editor of Tehelka. It has been recorded by the court that “Advocate Rebecca John“, among others, was guiding the prosecutrix about the course of action. It is also recorded that the prosecutrix was in contact with “Advocate Indira Jaisingh” (who is a friend of stepmother of the prosecutrix and whose number is saved by the name of Brahmastra).

The court, after discussing as above, concluded that:

“With the help of experts, there may be a possibility of doctoring of events or adding of incidents. Advocate for the accused has this rightly submitted that the deposition of the prosecutrix has to be scrutinised in that angle.”  

2.2. CCTV footage

After recording the horrific details provided by the prosecutrix about all that took place inside the lift of Hotel Grand Hyatt on the night of 7-11-2013, the court recorded that:

The CCTV footage does not support the statement that she was in shock or trauma and blinking in tears.

2.3. False/inconsistent statements

Based on her statement regarding her complaint on a previous occasion sometime in 2012 when she along with her friends was allegedly molested by a police officer, the court further recorded that:

“[Prosecutrix] states that she did not approach the police immediately after the first incident [at the THiNK Fest 2013] as she was too afraid of the police which show that the victim is making a false statement that she is afraid of the police which is clear from the incident narrated by her which took place in Delhi against the police officer.”

The court also concluded that the prosecutrix had made inconsistent statements. Scrutiny of evidence of the prosecutrix, according to the court, revealed several discrepancies/changes in her version, each constituting either material omissions and contradictions or improvements in her original narrative which was given and continually shifting details of the account she had proffered.   The court was also of the view that the CCTV footage did not support her statements.

2.4. Preparing a strong case

Noting that the prosecutrix pressured the Managing Editor of Tehelka to submit an apology on her terms on a claim that it would bring closure to the incident, the court formed an opinion that:

“However, the WhatsApp records show the [the prosecutrix] had already enlisted a battery of friends and networks to release such material on social media the moment the apology reached her. It is evident that the prosecutrix obtained apologies of accused from [the Managing Editor] in support of her accusation before the prosecutrix went public.”

3. Flirtatious and sexual conversations

Referring to WhatsApp messages between the accused and the prosecutrix, the court concluded that she did not contradict that both of them were drunk and it was nothing but a drunken banter, as suggested by the accused. This non-denial by the prosecutrix of the accused’s assertion gave adverse inference against her.

The accused in his defence stated that in fact it was the prosecutrix who was talking about her intimate escapades with Bob Geldof, Irish singer and a former speaker at THiNK 2012,  and also that how she was attracted towards the accused.

The court noted that:

“… thousands of her WhatsApp chats … provide a glaring proof of the prosecutrix’s conversations with a wide range of people. … The messaging record shows that it was entirely in the norm for the prosecutrix to have such flirtatious and sexual conversations with friends and acquaintances.”

Therefore, concluded that court, that her chats and her propensity to indulge in sexual conversations with friends and acquaintances, as well as her admission that the accused was talking about sex or desire, proves that the accused and the prosecutrix had a flirtatious conversation on the night of 7-11-2013.

4. Lying about intimate relationships

The court referred to the prosecutrix’s statement which, according to the court, was a brazen attempt at concealing her highly intimate and candid relationship with one N, a defence witness. Her chats with N, as also N‘s own statement, revealed that they were close friends and have had an intimate relationship.

The court here clarified that such evidence/chats were referred not for the purpose of proving her character but only to show that she was lying and that she twists and manipulates truth as she did by significantly understating the intimacy of her relationship with N. According to the court, it was difficult to believe that the prosecutrix is a truthful and reliable witness,

5. Evidence of N

The court extensively referred to the evidence given by N, prosecutrix’s friend and a defence witness, which contradicted the evidence of prosecutrix in material particulars. N was the first person who the prosecutrix met after the incident, but the investigation officer failed to record his statement nor investigate him. Hence, in court’s opinion, the evidence of N was relevant and admissible under Section 6 (facts forming part of same transaction) of the Evidence Act.

6. Glaring contradictions not expected from educated journalist

The court compared the email (complaint) of the prosecutrix sent to Tehelka’s Managing Editor with her statement under Section 161 CrPC, and noted “material contradiction”. In her email, the prosecutrix stated that “she picked up her underwear” and began walking out of the elevator. Saying that she picked up her underwear means that it was taken off the body and was not just pulled down. Taking it off was not possible as that would require lifting up of her legs. While in her statements under Section 161 and 164 CrPC, she stated that “she pulled her underwear” and began walking out.

Such “glaring contradictions“, said the court, “cannot be expected from educated journalist like [the prosecutrix] and forces the court not to believe the incident of rape“.

7. No revelation to prosecution witnessess

The court noted the evidence of a few prosecution witnessess who said that the prosecutrix only told them that accused forced his tongue in her throat, grabbed/attempted to pull her underwear and asked the colour of it. There was no accusation of removing her underwear, and penetrating her vagina with tongue/fingers.

The court said that if the rape on the prosecutrix at all happened, why she did not reveal or atleast hint about the same to the abovementioned prosecution witnesses. Also, the version disclosed by the prosecutrix to these witnessess was not at all consistent with the case she has now put up. In fact, this is inconsistent with the version of prosecutrix herself.

8. Not showing emails to court

The prosecutrix was asked whether she could show her email account to the court to which she denied. She stated that it was invasion of her right to privacy. In court’s opinion, the statement of the prosecutrix that she would not show the email to the court shows that she wants to hide something and thus she cannot be called reliable and trustworthy and evidence cannot be held to be of sterling quality.

9. Absence of injury

The court noted that the prosecutrix claimed to have physically resisted the accused with all her force and that she was constantly struggling. However, she admitted that she did not receive any injury out of the incident. According to the court, “it is not believable that the prosecutix would throw up such resistance and would not suffer any injury on her body“.

10. Narrative of extreme implausibility

Noting the position (where and how) the prosecutrix and the accused were standing in the lift, the court wondered that if she was not in a conversation with the accused and her mouth was not open, and she was not facing the accused, would it be possible for the accused to pry her mouth?  It was observed by the court that:

“If the prosecutrix had held her jaw firmly closed, how it would be possible for the accused to put his tongue in her mouth. The prosecutrix stated that she pushed the accused as hard as she could and she did so instinctively and reflexively whenever she pushed him. If the prosecutrix pushed the accused instinctively and reflexively, why wouldn’t she push the accused before he kissed when she was pushed against the wall or atleast put her hands in between to prevent the accused from coming close.”

This, in court’s opinion, was a narrative of extreme implausibility and it was not possible to believe that the prosecutrix, a woman who is aware of laws, intelligent, alert and physically fit (a Yoga trainer) would not push or ward off the accused.

11. No warning to the accused and no fight back

The court noted that in her evidence, the prosecutrix clearly stated that she regularly pushed away the accused. Then it was also noted that the prosecutrix had stated that she did not warn or intimidate the accused when he went down on his knees as she claims that he was more powerful than her. She also admitted that she did not fight back against the accused when he began to disrobe her during the incident.

According to the court, the voluntary statement of the prosecutrix that she was too scared of the accused and still in shock could not be believed. It was concluded by the court that:

“Hence, the allegation of rape and sexual assault cannot be said to have been proved by the prosecution beyond reasonable doubt.”

 12. No confession by accused

The prosecution submitted that in his apology given to the prosecutrix, the accused did not deny sexual molestation and, thus, has admitted the allegations made against him.

On this, the court discussed as to what is confession. It said that ordinarily, confession by a person is an act of admitting that he has done something wrong or illegal. In court’s opinion, the apology email sent by the accused reveal that there was absolutely no admission/confession of any incriminating fact even remotely suggesting sexual assault by the accused on the prosecutrix. That email is not a reply to any previous email sent to the accused by the prosecutrix containing any allegations of sexual assault, to claim that since the allegations were not denied, it amounted to a confession. In fact, it was not an apology but an attempt to assuage any discomfort the prosecutrix might have post facto felt. The court then went on to observe:

“Further, her statement that the accused offered to apologise to her mother and partner for the same certainly do not make out a case of sexual molestation, and it is clear that the prosecutrix is manipulating an interpretation to suit her case.”

13. Calculated actions of prosecutrix

The court noted that the prosecutrix had recorded her calls with Tehelka’s Managing Editor and these conversations were copied on DVDs which were submitted. According to the court:

“It is important to note that since she failed to inform [the Managing Editor] that she was recording the conversation – which means she could control anything she herself said in the conversation, but the other party to the call was left at the mercy of her manipulation. This is also a clear indicator of the calculated nature of her actions.”

In any event, said the court, such conversation was not relevant against the accused as he was not a party to the conversation.

14. Prohibition of Sections 53-A and 146 of the Evidence Act

Following the prohibition prescribed in Sections 53-A and 146 of the Evidence Act, the court decided to gloss over some WhatsApp chats and questions asked to the prosecutrix as well as several wintessess. Sections 53-A and 146 prohibit the evidence of general moral character and previous sexual experiences of the victim in certain cases (including cases of rape) where consent of the victim is in question.

15. The lift and the CCTV footage

The court noted certain facts regarding the lift where the incident allegedly took place. Firstly, the prosecutrix had stated that the accused kept pressing buttons on the lift panel to keep it in circuit without doors of the lift opening. To this, after perusing the evidence, the court concluded that much prior to the cross-examination of the prosecutrix, there was unequivocal evidence that the lift simply could not be kept in circuit by pressing buttons on the lift panel preventing the doors from opening at any floor, as claimed by the prosecutrix. Further, the prosecutrix did not recollect how many times the lift went up and down during the two minutes when she was being assaulted, thereby implicitly not denying the fact that the lift was in motion, and creating even more ambiguity about the lift being in motion or stationary.

However, it was noted by the court that the CCTV footage of the ground floor clearly showed that the guest lift was in motion during the two minutes and the doors of the lift opened at least twice on the ground floor.

16. Investigation lapse    

The court made several observations regarding lapses in investigation, including improper inspection of functioning of the lift where the crime allegedly took place. The court went to the extent of observing that the Investigating Officer deliberately concealed empirical evidence of the true functioning of the emergency red button of the lift from the court though available, as it contradicted the version of the prosecutrix and the prosecution case.

Prosecution’s case was that the accused pressed the red button for preventing the doors from opening. It was attempted to show that the red button of the lift was disabled after the incident, hence its exact functioning could not be inspected. To this, the court said that if documentation was created regarding disabling of the emergency red button by Hotel Grand Hyatt and Mitsubishi, it was quite strange that all documents relating to same would go missing both from Hotel Grand Hyatt and Mitsubishi.

All in all, the court concluded that prosecution’s case that the accused prevented the lift door from opening and that he wrongfully confined the prosecutrix, was not proved.

17. Destruction of most crucial CCTV footage

The accused took the defence that he and the prosecutrix were not in the lift during the relevant two minutes, but had exited the lift on the first floor. To prove this, CCTV footage of the first floor of guest lifts of 7-11-2013 (the night of the alleged incident) was most vital to the accused. On the day of registration of FIR, i.e. 22-11-2013, itself, the accused had demanded that police should procure such CCTV footage from the hotel, which would establish his innocence.

Also, there was ample evidence to prove that there was in fact a CCTV outside the guest lifts of the first floor. Not only this, but the IO (as well as several other witnesses) also admitted to have seen the CCTV footage of all floors including that of the first floor. But on being asked as to what she saw in the footage of the first floor, the IO stated that she could not recollect.

The further course of action adopted by the her made it clear to the court as to how the IO went about selectively retaining only the ground and the second floor footage, and completely destroying the first floor CCTV footage of the guest lifts in which the alleged crime took place.

It was recorded that if the CCTV footage of first floor was viewed on 29-11-2013, then where did it disappear and there is absolutely no explanation to this from the prosecution. There was no reliable proof that the DVR was sealed on 29-11-2013 which creates even further possibility for tampering with the DVR. The court concluded that:

“It can be said that because the footage of the first floor would have wholly destroyed the prosecution’s case, [the Investigating Officer] sought to keep out the relevant footage for the first floor and render it unavailable. …

[The] only conclusion that can be drawn is that the Investigation Officer tampered with and destroyed the CCTV footage of the first floor guest lifts … since it would conclusively corroborate the defence of the accused.”

18. Not using possible escapes

The court found it surprising to believe that when the accused had assaulted the prosecutrix on the night of 7-11-2013, then why did she again follow him to the lift the very next night of 8-11-2013. According to her, the accused seemed to know how to stall the elevator at his will and she was afraid that he would take her into a room this time. The court said:

“Despite this so-called fear, [the prosecutrix] chose to follow him back to the elevator and does not use any possible escapes that are available to her.”

19. Conduct of  prosecutrix not natural of a sexual assault victim

The court was not amused by the conduct of the prosecutrix after the alleged incident which was repeated on the night of 8-11-2013. Firstly, she did not report about the incident to Tehelka’s Managing Editor even when she had a chance of meeting her alone in the VIP lounge. Also, in photographs taken shortly after the alleged assault, the prosecutrix looks in a happy and cheerful mood, and did not look distressed or traumatised in any manner whatsoever.

According to the court, this unnatural conduct of the prosecutrix is relevant under Section 8 of the Evidence Act. The prosecutrix admitted to have been updating the accused about her location via WhatsApp messages even after the alleged assault. The court said:

“[If] the prosecutrix had recently again been sexually assaulted by the accused and was terrified of him and not in a proper state of mind, why would she report to the accused and disclose to him her location when she could have reported to N, S and P, all of whom she was reporting and updating on a regular basis.”

It was recorded that the prosecutrix sending messages to the accused proactively, without any attempt by him to ask her where she was, and her sending the same message thrice in a span of very few minutes clearly establishes that she was not traumatised nor terrified of being located or found out by the accused, and belies the prosecution case that immediately before the said messages, the accused had sexually assaulted the prosecutrix again.

The court concluded:

“It is extremely revealing that the prosecutrix’s account neither demonstrates any kind of normative behaviour on her own part – that an prosecutrix of sexual assault on consecutive two nights might plausibly show, nor does it demonstrate any such behaviour on the part of the accused.”

20. Omission to record evidence of K

K was an integral member of THiNK 2013 production team. The prosecutrix stayed the night of 9-11-2013 at Hotel Grand Hyatt in the production room allotted to K. Firstly, in court’s view, this exposed the fact that the prosecutrix had no problem freely moving about the hotel where the accused was also staying. Then, K has written a letter to the IO to share information related to the case. He said that he had known the prosecutrix for some time, and that he had information regarding the details and mental state of the prosecutrix during the festival, particularly on the night of 9-11-2017.

However, the IO despite receiving the said letter, did not record the statement of K. The court said that the IO dealt with the material in a casual manner and failed to even record the statement, let alone probe, verify and investigate all material potentially available in order to arrive at the truth.

21. Using allegation as a necessary escape for her peace of mind

The prosecutrix had stated that after the conclusion of THiNK 2013, she had to stay back in Goa before going home as she was traumatised and also because her mother along with her colleagues would be staying at her flat in Mumbai for a couple of days. But, the court looked at certain evidence which included her WhatsApp chats and found that the prosecutrix had a prior plan to stay in Goa with D, her Russian boyfriend, before and after the event.

The court concluded:

“[The] prosecutrix had always planned to stay in Goa with D post THiNK and is only using allegation of sexual assault to make it appear like a necessary escape for the sake of her peace of mind when it was always a pre-planned, pre-meditated trip.”

Also, the fact that after the event, the prosecutrix stayed with two of her friends at a hotel in Goa, as asserted by her, was found not proved.

22. Faulty investigation

The court had a long discussion about the material lapses and omissions on the part of Investigating Officer, some of which are mentioned above. It was also noted that the IO was also the complainant in the case (the police had initiated suo motu inquiry based on reports in media), even when there were other lady officers who could have conducted the investigation.

The court was of the opinion that:

“The settled proposition that the acquittal of accused cannot result due to defects in the investigation cannot be disputed, However, a duty is also cast on the investigating officer to conduct fair investigation in the matter to bring out the truth.”

Conclusion

The court held that deposition of the prosecutrix shows improvements and material contradictions, omissions and change of versions which does not inspire confidence. And that the accused ought to be given benefit of doubt as there is no corroborative evidence supporting allegations made by the prosecutrix. The prosecution failed to discharge the burden to prove guilt of the accused beyond reasonable doubt.

The accused was, therefore, acquitted of the offences punishable under Sections 376(2)(f), 376(2)(k), 354, 354-A, 354-B, 341 and 342 IPC. [State v. Tarunjit Tejpal, Sessions Case No. 10 of 2014, decided on 21-5-2021]

Case BriefsSupreme Court

Supreme Court: After it refused to accept the explanation of advocate Prashant Bhushan in the 2009 contempt petition against Advocate Prashant Bhushan and former Tehelka Tarun Tejpal, the 3-judge bench of Arun Mishra, BR Gavai and MR Shah, JJ has framed larger questions in the matter that will have far-reaching ramifications.

On August 10, 2020, in Amicus Curiae v. Prashant Bhushan, 2020 SCC OnLine SC 635, the Court had noticed that that further hearing was required in the matter.

“Before reaching to any finding whether the statement made as to “Corruption” would per se amount to Contempt of Court, the matter is required to be heard. “

Issues framed

  • In case a public statement as to corruption by a particular Judge(s) is permissible, under what circumstances and on what basis, it can be made, and safeguards, if any, to be observed in that regard ?
  • What procedure is to be adopted to make complaint in such cases when the allegation is about the conduct of a sitting Judge ?
  • Whether against retired Judge(s), any allegation as to corruption can be made publicly, thereby shaking the confidence of general public in the judiciary; and whether the same would be punishable under the Contempt of Courts Act?

The Court will now hear the matter on August 25, 2020.

[Amicus Curiae v. Prashant Bhushan, 2020 SCC OnLine SC 651, order dated 17.08.2020]


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Case BriefsSupreme Court

Supreme Court: In the 2009 contempt petition against Advocate Prashant Bhushan and former Tehelka Tarun Tejpal, the bench headed by Arun Mishra, J refused to accept the explanation of advocate Bhushan and said that further hearing is required in the matter.

“Before reaching to any finding whether the statement made as to “Corruption” would per se amount to Contempt of Court, the matter is required to be heard. “

The will now hear the matter on August 17, 2020.

Earlier, on August 4, the Court had said that there is a thin line between freedom of speech and the need to protect the dignity of the judiciary as an institution and it sought to balance both. The hearing in the 11-year-old case which pertains to an interview given by Bhushan to Tehelka where he said that half of past 16 Chief Justices of India (CJIs) were corrupt.

On July 22, 2020, in another matter, a 3-judge bench of Arun Mishra, B R Gavai and Krishna Murari, JJ had issued notice in the suo motu contempt petition initiated by the Supreme Court against Advocate Prashant Bhushan and Twitter.

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

In his reply to the suo motu petition, Bhushan said that

“The expression of opinion, however outspoken, disagreeable or unpalatable to some, cannot constitute contempt of court…”

According to PTI, in a 142-page reply affidavit filed through lawyer Kamini Jaiswal, the activist lawyer has referred to several Supreme Court judgments, speeches of former and
serving judges on contempt of court and the stifling of dissent in a democracy and his views on judicial actions in some cases. He has also stood by his two tweets.’

“To prevent a citizen from forming, holding, and expressing a bonafide opinion’ in public interest on any institution that is a creature of the Constitution is not a reasonable restriction and violates the basic principles on which our democracy is founded.”

The affidavit said the power of contempt under Article 129 of the Constitution should be utilized to aid in administration of justice and not to shut out voices that seek accountability from the court for the errors of omissions and commissions.

Senior advocate Dushyant Dave, appearing for advocate Prashant Bhushan, in the suo motu contempt petition initiated by the Supreme Court against Advocate Bhushan, asked the Court,

“This is criticism… Why don’t you take it objectively?”

He also submitted that if a judge is defamed, he should seek relief in the ordinary laws of defamation.

He further submitted that a sitting judge, who went on to become a CJI, had ‘criticised’ the functioning of the Supreme Court in a presser in January 2018. Justice Ranjan Gogoi, one of the four judges who had met the media, went on to become the 46th Chief Justice and Justice Bobde’s immediate predecessor. Dave, in his submission said,

“The holding of January 2018 press conference was fully justified. If the then CJI was not listening to their points, what could they do? If citizens stand up and criticise the system, say everything is not hunky-dory, how can it be contempt?”

The Court has reserved the judgment in the said matter. Read more

[Amicus Curiae v. Prashant Bhushan, 2020 SCC OnLine SC 635, order dated 10.08.2020]


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Hot Off The PressNews

Supreme Court: In the 2009 contempt petition against Advocate Prashant Bhushan and former Tehelka Tarun Tejpal, the bench headed by Arun Mishra, J said that there is a thin line between freedom of speech and the need to protect the dignity of the judiciary as an institution and it sought to balance both. The hearing in the 11-year-old case which pertains to an interview given by Bhushan to Tehelka where he said that half of past 16 Chief Justices of India (CJIs) were corrupt, was conducted in-camera.

On July 22, 2020, a 3-judge bench of Arun Mishra, B R Gavai and Krishna Murari, JJ had issued notice in the suo motu contempt petition initiated by the Supreme Court against Advocate Prashant Bhushan and Twitter. The Court will hear that matter tomorrow. The Court, in it’s order, recorded:

“We are, prima facie, of the view that the aforesaid statements on Twitter have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the Institution of Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of public at large.”

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

In his reply to the suo motu petition, Bhushan said that

“The expression of opinion, however outspoken, disagreeable or unpalatable to some, cannot constitute contempt of court…”

According to PTI, in a 142-page reply affidavit filed through lawyer Kamini Jaiswal, the activist lawyer has referred to several Supreme Court judgments, speeches of former and
serving judges on contempt of court and the stifling of dissent in a democracy and his views on judicial actions in some cases. He has also stood by his two tweets.’

“To prevent a citizen from forming, holding, and expressing a bonafide opinion’ in public interest on any institution that is a creature of the Constitution is not a reasonable restriction and violates the basic principles on which our democracy is founded.”

The affidavit said the power of contempt under Article 129 of the Constitution should be utilized to aid in administration of justice and not to shut out voices that seek accountability from the court for the errors of omissions and commissions.


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Hot Off The PressNews

Supreme Court: The bench of Arun Mishra and MR Shah, JJ has refused to quash the charges against Tarun Tejpal, former editor-in-chief of Tehelka Magazine, in the 2013 sexual assault case registered by his former junior colleague. The Court also directed that the trial is to be concluded in a period of six months.

The Court passed the order on Tejpal’s plea which quashing of charges against him framed by a trial court in Goa. Claiming innocence, Vikas Singh, senior lawyer and former Additional Solicitor General appeared for Tarun Tejpal in the case.

Tejpal, a veteran journalist, was accused of sexual assault by a female colleague in November 2013. He was arrested on November 30, 2013, and is currently on bail. On September 29, 2017, a trial court in Goa charged Tejpal under sections 376(2) (Rape), 354 A (Sexual harassment) and 342 (wrongful confinement).

(Source: ANI)