Tarun Tejpal- Anticipatory Bail Orders

tarun tejpal

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.
2
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 isthe 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 conferenceby 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 tookplace 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 toparty 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 cornerincluding 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 statedthat 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 innocenttill proven guilty forms the
basis of Indian Criminal Jurisprudence.
7. The applicant has statedthat 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 isunprecedented 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 prayedfor 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 ofthe pre-planned conspiracy to
implicate him falsely.
8. The applicant has statedthat 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 tojoin 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 11 th
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 ofthe 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 thateven 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 reasonabletime 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 Journalisthad 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 materialto 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 toco-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 ofthe 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 entirefamily 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 thatwhile 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 reputeand 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 thatthe accused is entitled for
bail.

17. Ld. Senior Counsel Shri. S.D. Lotlikar has argued
on behalf of the respondent. Hehas 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-mailwas leaked and the Women’s
Commission took cognizance ofthe 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 thatthe 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.3971/2008and Abdul Sajed Vs. State of
Maharashtrain 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 thatat the stage ofdeciding 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 Singhand Siddharam
Mhetredo not set at naught or curtail the powers of the
Investigating Agency to arrestthe 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:
i) The nature and gravity of the accusation
and the exact role of the accused must be
properly comprehended before arrest is
made;
ii) 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;
iii) The possibility of the applicant to flee from
justice.
iv) The possibility of the accused likelihood to
repeat similar or the other offences.
v) Where the accusations have been made
only with the objectof injuring or
humiliating the applicant by arresting him
or her.
vi) Impact of grant of anticipatory bail
particularly in cases of large magnitude
affecting a very large number of people.
vii) 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;
viii) 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;
ix) The Court to consider reasonable
apprehension of tampering of the witness
or apprehension of threat to the
complainant;
x) 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 whilethe 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 indicatethat 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. Itis 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 tostate 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 ingeneral and if not properly
investigated, can destroy the psyche of a women and basic
fabric of the Society. In myconsidered 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 ordue 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 atthe behest of any political
party. There is no material onrecord 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 beenheld 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 Phadkeare 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.
af*