Tarun Tejpal Vs State Of Goa

Presented on : 29.11.2013 
Registered on : 29.11.2013 
Decided on : 30.11.2013 
Duration: YS - MS - DS 1

IN THE COURT OF THE SESSIONS JUDGE, NORTH GOA, PANAJI.
(Before Smt. Anuja Prabhudessai, Sessions Judge, Panaji)
Anticipatory Bail Application No.573/2013.

Mr. Tarun Tejpal,
son of Inderjit Tejpal,
aged 50 years,
major of age,
Indian National,
Residing at 12, Link Road,
Jangpura Extension,
New Delhi. …. Applicant.

V/s

State of Goa,
through Police Inspector
Crime Branch,
Dona Paula, Goa. …. Respondent.

Ld. Senior Counsel Ms. Geeta Luthra with Advocates Sandeep Kapur, Ravi Sharma, Raunaq Rao and Ms. Sayuli Pai Raikar for the applicant present at the time of the hearing and Order. Ld. Senior Counsel Shri. S.D. Lotlikar with Adv. F. Tavora for the respondent present at the time of the hearing and Order.

O R D E R

(Delivered on this the 30th day of the month of November of the year 2013.)

By this order I propose to dispose of the application for anticipatory bail, filed by the aforesaid applicant, who apprehends his arrest by Crime Branch, Goa in Cr. No.27/2013 under Secs.354 A, 376, 376 (2) (k) IPC.

2. The applicant is the erstwhile Editor in chief of a weekly Magazine Tehelka. The applicant has stated that throughout his career he has striven for transparency and accountability in public life and is the foremost critic of right wing majoritarian politics in the Country and has been an avid campaigner against any attempts to tarnish the secular fabric of the Country.

3. The applicant has stated that he and his wife had attended an annual conference by name THINK 2013 hosted by Tehelka in Goa from 7th November to 11th November, 2013. The applicant has stated that on 7.11.2013, he had a lighthearted bantering with one of the lady colleagues. On 8.11.2013 a further meeting took place between them which lasted for few seconds and contained no incident which could constitute commission of any cognizable offence. The applicant did not have any further interaction with the said colleague and she continued to party and was completely normal and friendly all throughout her stay in Goa. She was at every party and social event through the conference and stayed out late into the night. It is stated that there was not a single whisper from any corner including the said lady that any alleged untoward occurrence had taken place during the THINK fest.

4. The applicant has stated that shockingly on 18.11.2013, after a long delay of over 10 days, he was informed by the Managing Editor of Tehelka that she had received a Complaint alleging sexual harassment against him from the said lady colleague. The applicant has stated that he was shocked to learn about the false Complaint of alleged harassment and categorically refuted the same. The applicant has stated that the Complaint is motivated, false and an afterthought. On 22.11.2013, he learnt through media reports that FIR has been registered against him based on media reports of alleged harassment.

5. The applicant has stated that the respondent, in their endeavour to appease their political masters are turning a blind eye to crucial pieces of evidence establishing his innocence. It is stated that the manner and the scale in which a particular political party has unleashed the wrath of its vengeance in the garb of the FIR is synonymous with the previous attempts of the BJP to malign and target him and the same is apparent by the statements issued by the various party leaders. The applicant has stated that the wrath of leaders of the BJP, individuals from the Goa Police cannot antagonize, is best manifested from the statements made by them demanding that the applicant should “atone in jail”. The applicant therefore claims that he has no trust in Goa Police and he believes that the respondent is turning a blind eye to crucial pieces of evidence because of political interference and the malafides of the State Government.

6. The applicant apprehends that the investigation carried out by the Goa Police is patently tainted unfair and is being used as an opportunity to satisfy the long-standing grudge of the political executive against his works and ideological stand. He has stated that the present FIR pertains to a false and concocted version of an encounter between two individuals, which has been spun out as an allegation of sexual assault. He has stated that examination of CCTV footage will not only unveil the concoction but will also establish his innocence. However, the Investigating Agency, in its endeavour to please its political masters, is turning a blind eye to such footage. The applicant has stated that Article 21 of the Constitution places the dignity of human life and liberty on the highest pedestal and the principle of an accused being presumed innocent till proven guilty forms the basis of Indian Criminal Jurisprudence.

7. The applicant has stated that the said Journalist or her family members had neither lodged any complaint nor given any statement to the respondent till 26.11.2013. The applicant has stated that it is unprecedented that the State should make a complaint or register an FIR without the knowledge, statement, or consent of the aggrieved person. The applicant has stated that the respondent had left the call letters with his wife on 27.11.2013 at 11.00 p.m. requiring his attendance in Goa on 28.11.2013 at 3.00 p.m. By letter dated 28.11.2013 which was hand delivered to the respondent he expressed his inability to remain present at such short notice and prayed for a period of two days. However, he learnt from the news channels that his request has not been accepted. By another letter dated 28.11.2013 he intimated to the respondent that he would remain present for the purpose of investigation on 29.11.2013 and expressed his complete willingness to co-operate with the investigation process. The applicant has stated that biased and misleading accounts have been published by the media to victimize him and as part of the pre-planned conspiracy to implicate him falsely.

8. The applicant has stated that he is a person of well-established credentials and is a law-abiding citizen with immense respect for the due process of law. The applicant has stated that he undertakes to join the investigation as and when required or called upon and that he will extend his fullest co-operation to the authorities in the conduct of on going investigation. The applicant has stated that he has deep roots in the Society and poses no risk of absconding or tampering with evidence. The applicant has stated that this is not a case for custodial interrogation and that he is ready to comply with any condition imposed by the Court. The applicant therefore has sought intervention of the Court under Sec.438 Cr.P.C.

9. Notice of the application was given to the respondent. The respondent has filed its reply at Exh.3. The respondent has stated that on 21.11.2013 news was published on various social sites and news channels of electronic media that the applicant herein had outraged the modesty/sexually assaulted lady journalist of Tehelka.com during THINK fest organized in Goa between 7th to 11th November 2013. Preliminary inquiry was initiated in the matter since the incident had taken place in a Hotel at Goa and it prima facie revealed that the applicant herein had committed the offence of sexual assault and rape on the said lady Journalist. Hence, FIR was registered under Sec.354-A, 376 and 376 (2) (k) IPC.

10. The respondent has stated that the statement of the said lady Journalist has been recorded and that she has given a detailed account of the incident and has also given copies of the communications by e-mail, SMS messages, voice recordings between her, the applicant and the Managing Editor. The statement of the victim is also recorded under Sec.164 (5-A) of Cr.P.C. by the Ld. J.M.F.C., Panaji. The Scene of Offence Panchanama has been drawn. CCTV footage has been verified, the statements of the Managing Editor and other staff members of Tehelka.com have been recorded. The respondent has stated that the material on record prima facie indicates that the applicant had committed cognizable offences as alleged.

11. The respondent has stated that attempts were made to trace the accused in Delhi but his whereabouts could not be traced. Notice was sent to the applicant by e-mail and SMS calling upon him to report to the Investigating Officer in Goa for the purpose of investigation but he did not respond. The respondent has stated that the presence of the applicant is required for the purpose of custodial interrogation to unravel the truth. The respondent has stated that the applicant has committed offence against a woman who was working under him as a Journalist and the victim being an employee, the applicant was having control/dominance over her. The respondent has stated that the offence is of serious and sensitive nature and requires custodial interrogation.

12. The respondent has further stated that statements of some of the witnesses are yet to be recorded. The applicant is a high profile and influential person and the applicant has already attempted to threaten the Journalist and her family members. The respondent has stated that there is every possibility of the applicant interfering with the victim, her family members, and the witnesses who are mainly the employees of Tehelka.com.

13. Ld. Senior Counsel Ms. Geeta Luthra has argued on behalf of the applicant. She has argued that the applicant is a Journalist of global repute and has taken 50 years to build this reputation. Throughout his career, the applicant has been avid campaigner against corruption as well as attempts to tarnish secular fabric of the Country and in the process has made many enemies within his fraternity and the political parties. She has argued that the present registration of the FIR is a well-planned conspiracy to malign his reputation. She has argued that even without there being a complaint from the said Journalist, the Goa Police has registered the FIR against the applicant in undue hurry, in their endeavour to appease the political masters. She has argued that the applicant had learnt about the registration of the FIR only through the social media. She has further argued that the notice dated 27.11.2013 was served on the wife of the applicant on 27.11.2013 at 11.00 p.m., requiring his attendance in Goa on 28.11.2013 at 3.00 p.m. She has argued that the applicant had learnt about the said letter on 28.11.2013 and immediately thereafter, vide letter dated 28.11.2013 which was hand delivered to the respondent, he had expressed his inability to remain present at such short notice and prayed for 2 days time. She has argued that the applicant did not receive any communication but learnt from the news channels that his request was declined. By another letter dated 28.11.2013 the applicant informed the respondent that he would join the investigation on 29.11.2013. She has argued that despite the said letter the applicant was not given reasonable time to appear before the Investigating Officer and that he has been hounded by Goa Police and every attempt is made to arrest him in violation of rule of law. She has argued that the investigation is tainted and biased.

14. Ld. Senior Counsel Ms. G. Luthra has further argued that the said Journalist had reported the incident to the Managing Editor about 11 days after the alleged incident. She has further argued that there is considerable delay in recording the statement under Secs.161 and 164 (5A) of Cr.P.C. She has argued that the delay in reporting the said incident as well as the subsequent conduct of the victim is an indication that it is a doctored document. She has relied upon the decision of the Apex Court in the case of Rajesh Patel Vs. State of Jharkand {2013 (3) SCALE 550}. She has argued that the Investigating Agency has concealed the CCTV footage, which would have disclosed whether the victim was hysterical and distressed as alleged.

15. Ld. Senior Counsel Ms. G. Luthra has further argued that there is no material to implicate the applicant for commission of offence under Sec.376 (2) (k) of IPC. She has argued that the law under which the applicant is sought to be arrested, is draconian and that opportunity has to be given to the applicant who is willing to co-operate to put forth his version. Relying upon the Judgments of the Apex Court in Gurbaksh Singh Sibbia Vs. State of Punjab {(1980) 2 SCC 565} and Siddharam Mhetre Vs. State of Maharashtra {(2011) 1 SCC 694}, she has argued that life and personal liberty are the most priced possession of the individuals. An Article 21 of the Constitution, which is repository of all human rights, prevents encroachment upon personal liberty in any manner. She has argued that the arrest leads to great ignominy and disgrace not only to the accused but also to the entire family and at times to the entire community. She has argued that Sec.438 of Cr.P.C. was introduced to avoid such humiliation and ignominy as a consequence of the arrest based on the false and malicious complaints. She has argued that while exercising discretion under this provision, the Court has to evaluate the facts and in cases where the Court is of the considered view that the accused had joined investigation, is fully co-operating with the Investigating Agency, and is not likely to abscond, in that event custodial interrogation should be avoided. She has relief upon the Judgments of the Hon’ble Bombay High Court in Khemlo Sawant Vs. State {2002 (1) Bom. C.R. 689} and Vinod Phadke Vs. State {2001 (Supp.2) Bom. C.R.235}. She has also relied upon the Judgments of the Hon’ble Delhi High Court in Jagdish Nautiyal Vs. State in Bail Application no.1317/12, Rohit Chawan Vs. State NCT of Delhi {200 (2013) DLT 380} and Arif Iqbal alias Imran Vs. State {164 (2009) DLT 157}.

16. Ld. Senior Counsel Ms. G. Luthra has argued that the accused is a man of repute and his arrest on false and malicious prosecution by at the behest of those with vested interest will tarnish his reputation. She has argued that the accused has roots in the Society and there are no chances of his absconding or tampering with the evidence. She has argued that the accused is ready to join the investigation and co-operate with the Investigating Agency and is ready to comply with all the terms and conditions imposed by the Court. She therefore claims that the accused is entitled for bail.

17. Ld. Senior Counsel Shri. S.D. Lotlikar has argued on behalf of the respondent. He has argued that Tehelka had organized THINK 2013 fest from 7th November to 11th November at Hotel Grand Hyatt at Bambolim Goa. In an interview, the lady Journalist who was part of the event had narrated the incident of rape and sexual abuse. She had also discussed the matter on the same day with her colleagues and subsequently on 18.11.2013, she complained to the Managing Editor. Ld. Senior Counsel Shri. S.D. Lotlikar has argued that the said e-mail was leaked and the Women’s Commission took cognizance of the same and directed Goa Police to register an offence. The FIR was registered on 22.11.2013, statements of the victim and the witnesses were recorded, and all the relevant material such as e-mails and other messages have been attached. He has argued that the material on record prima facie proves that the applicant has misused his position as an employer and sexually abused and raped the Journalist who was his employee. The lady Journalist is the daughter of the applicant’s friend and the applicant’s daughter was a close friend of the said lady Journalist. He has argued that the applicant has betrayed trust of the said lady Journalist who considered him as a father figure.

18. Ld. Senior Counsel Shri. S.D. Lotlikar has argued that the applicant is involved in committing serious offences, punishment for which can extend to life imprisonment. He has argued that the material on record indicates that the applicant had not disputed the incident but had subsequently given various contradictory versions. He has argued that presence of the applicant is required for custodial interrogation which as held by the Apex Court in the case of CBI Vs. Anil Sharma (1997 Cri.L.J. 4414) and followed by the Hon’ble Bombay High Court in Prakesh Kothavad Vs. The State of Maharashtra in Criminal Application no.3971/2008 and Abdul Sajed Vs. State of Maharashtra in Criminal Application no.190/2011, is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favourable order under Sec.438 of the Code.

19. Ld. Senior Counsel Shri. S.D. Lotlikar has argued that at this stage delay in reporting the matter is of no consequence. He has argued that at the stage of deciding the bail application the Court cannot appreciate the evidence but has to only evaluate the material on record and ascertain whether the said material prima facie discloses the commission of offence as alleged. He has argued that in the instant case the material on record shows the involvement of the applicant in commission of serious offence. He has further argued that the accused is position to influence the victim and her family members and has in fact resorted to such tactics. He has argued that the applicant has kept changing his versions like a Chameleon would change his colour and that the conduct of the applicant is not in consonance with his innocence. He has further argued that the accused was not found at his address and his whereabouts were not disclosed by his family members. He has argued that this is a fit case for custodial interrogation.

20. I have perused the records and considered the arguments advanced by the respective parties.

21. At the outset it may be mentioned that the Judgments in the case of Gurbaksh Singh and Siddharam Mhetre do not set at naught or curtail the powers of the Investigating Agency to arrest the accused but lay down the following principles and parameters which have to be taken into consideration by the Courts while dealing with the applicant for anticipatory bail:

1. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
2. the antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
3. The possibility of the applicant to flee from justice.
4. The possibility of the accused likelihood to repeat similar or the other offences.
5. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
6. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
7. The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Secs.34 and 149 of the Indian Penal Code, the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
8. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
9. The Court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
10. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 

123. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case.
124. The Court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record”.

22. Keeping in mind the above principles, the question, which falls for my determination, is whether the applicant who is alleged to have committed offences specified in Cr. no.27/2013 is entitled for bail. The answer to which in my considered view is nothing but in the negative for the following reasons:

23. The records indicate that the applicant is an erstwhile Editor in Chief while the victim is an erstwhile Journalist of Tehelka.com. The records further indicate that Tehelka had organized THINK fest at Hotel Grand Hyatt Bambolim, Goa from 7.11.2013 to 11.11.2013. The victim was part of the said event.

24. The material on record prima facie indicates that on 18.11.2013 the victim had sent an e-mail complaint to the Managing Editor of Tehelka complaining of sexual assault by the applicant on 7th and 8th November, 2013 in the elevator of Hotel Grand Hyatt. Though there is delay in reporting the matter to the Managing Editor, the same is 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. It is also to be noted that though unexplained delay in lodging the FIR may be a favourable circumstance in favour of the accused, the same yardstick cannot be applied in cases involving sexual offences. The victims of such crimes 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. These circumstances often lead to delay in reporting the incident. Hence, even on merits, delay in reporting such matters would not be necessarily fatal. This being the case, the decision in the case of Rajesh Patel (supra) which was otherwise on merits of the case is not applicable. Consequently, in my considered view, the veracity of the Complaint or the statement of the victim cannot be doubted on the ground of delay.

25. The statement of the victim and the documents in the form of e-mails 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. The statements of the colleagues of the victim also prima facie indicate that the victim had informed them about the incident on the same day. Though such corroboration is not strictly necessary, the statements of her colleagues prima facie corroborates her version, which at this stage need not be sieved, sifted, weighed and appreciated. The e-mail correspondence on record prima facie indicates that the applicant herein had not disputed the incident. The initial correspondence of the applicant further indicates that he was aware that the victim was not a consenting party but it was only at a later stage that the applicant 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 lighthearted bantering, cannot be prima facie accepted.

26. Thus the material on record prima facie indicates that the applicant is involved in committing acts which constitute offences under Secs.354-A and 376 (2) (k) of IPC. The offence under Sec.354-A is punishable with imprisonment of 7 years whereas the offence under Sec.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 a sole criteria, is one of the essential factors, which would disentitle the applicant for bail.

27. At this stage it is advantageous to refer the decision of the Hon’ble Bombay High Court in the case Abdul Razzak Abdul Sattar Vs. State of Maharashtra {2011 ALL MR (Cri.) 3660}. After considering the decision in the case of Gurbaksh Singh, the Hon’ble Bombay High Court has held that “..anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the constitution. It cannot be considered as an integral part of the Article 21 of the Constitution and its non application to a certain special category of offences cannot be considered as violative of Article 21.”

28. In the case of Prakash Kothavade (supra), the Hon’ble Bombay High Court has reiterated that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favourable order under Sec.438 of the Code. It has been held that effective interrogation is of tremendous advantage being disinterring many useful information and also materials which would have been concealed. 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 interrogation in such condition would reduce to a mere ritual.

29. In the instant case, the nature of the offence committed by the applicant is gender specific and has no nexus with cast, creed, and religion of the victim or the social, political, or financial status of the victim. The laws, which are termed by the Ld. Advocate as draconian laws are in fact enacted with an avowed object of curbing rampant rise in such crimes. Needless to state that the object of the women specific laws can be achieved only by proper implementation of laws and thorough investigation of such crimes and such thorough investigation would include custodial interrogation.

30. As held by the Apex Court in the case of Gurbaksh Singh and Siddharam Mhetre (supra), the Court while deciding the bail application has to maintain fine balance between the societal interest vis-à-vis the personal liberty. As stated earlier, the offences alleged are crimes against the women and Society in general and if not properly investigated, can destroy the psyche of a women and basic fabric of the Society. In my considered view, offences of such nature fall in a different category and in the societal interest justify custodial interrogation.

31. It may be mentioned here that the contention of the applicant that he is being prosecuted at the behest of persons with vested interests or due to political pressure has prima facie no merits. The applicant has nowhere stated in his application that the victim has made the accusations under political pressure or at the behest of any political party. There is no material on record that the applicant is prosecuted as a pre planned criminal conspiracy or that the investigation is biased or tainted. As such, subsequent comments, statements, or acts of any political party are not relevant consideration for deciding the application.

32. In the case of Pushpa Prakash Patil Vs. State of Maharashtra {2012 ALL MR (Cri.) 1500}, the Hon’ble Bombay High Court has held that averments in the application that there are political malafidious does not create a license or right in favour of the applicants that an order of anticipatory bail should essentially follow as a mater of course or a right. It has been held that applicant’s have to rise to a height to have the concession of pre arrest bail by demonstrating that in all probabilities their arrest could not be supported by law.

33. In the instant case, the applicant has failed to demonstrate that the FIR is on its face false, malafide, vexatious, vindictive, and per se illegal. As stated earlier the material on record prima facie reveals that the applicant by his acts, which he has termed as lighthearted banter, had subjected the victim to ignominy, humiliation, and disgrace. Hence, the applicant cannot claim bail on the ground that his arrest would curtail his personal liberty or will cause ignominy, humiliation, and disgrace. The decisions in the case of Delhi High Court In the case of Jagdish Nautiyal, Rohit Chawan and Arif Iqbal alias Imran and the decisions of the Hon’ble Bombay High Court in the case of Vinod Phadke are not applicable to the facts of the case.

34. The material on record also prima facie indicates that the applicant was not available and his whereabouts were not disclosed. The applicant is not only an influential person but the records prima facie indicate that the applicant has tried to influence the family of the victim and the possibility of the applicant interfering with the evidence cannot be ruled out. Considering the totality of the circumstances, in my considered view the applicant is not entitled for bail. Hence, the application hereby is dismissed.

Panaji.
Dated: 30.11.2013. 

(Anuja Prabhudessai)
Sessions Judge, 
P A N A J I.

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