Tarun Tejpal's Plea For Quashing Rape Charges: Justice Nageswara Rao Recuses From Hearing The Case

Magazine Tehelka’s former editor Tarun Tejpal, facing trial in Goa for allegedly raping his junior colleague, has moved the Supreme Court (SC) challenging the Bombay High Court’s December 20, 2017 order which has dismissed his plea for quashing of charges against him in the alleged rape case.

Tejpal’s petition came up for hearing before the bench of Justice SA Bobde and Justice L Nageswar Rao. Justice Nageswara Rao recused from hearing the case.

"List before the Bench of which one of us,(L. Nageswara Rao, J.) is not a member", ordered the Bench.

Tejpal’s counsel senior advocate Kapil Sibal and advocate Ankur Chawla appeared in the case.

The Goa bench of Bombay High Court had upheld the September 2017 order of Sessions judge at Mapusa, Goa, framing charges against him for rape.

The high court said the CCTV footage does not capture the victim's facial expressions, but only shows her movement into and out of the elevator. The footage does not indicate that she was humiliated, traumatized or adversely impacted by the alleged misconduct of the applicant while in the elevator.

It said Tejpal's argument comparing the victim's behaviour in the CCTV footage and her statement before the police does not advance his case at this stage to seek discharge from the trial.

The trial court had framed charges against Tejpal under sections 354 (assaulting or using criminal force on a woman with an intent to outrage her modesty), 354-A (outraging modesty), 341 (wrongful restraint), 342 (wrong confinement), 376 (rape), 376(2) (f) (person in position of trust or authority over women, committing rape of such women) and 376(2) (k) (rape of a woman by a person being in position of control or dominance over the woman).

“The high court failed to appreciate the manner in which the charges were directed to be framed against the Petitioner by the trial court by totally disregarding the primary evidence in the form of CCTV footage, which totally demolishes the case of the Prosecution, while relying on material that is not even a document within the meaning of Section 3 of the Indian Evidence Act, 1872.” states the petition.

The questions of law raised in his petition

1. Whether the Trial Court while exercising jurisdiction under Section 227 of the Code of Criminal Procedure, 1973 can totally ignore the crucial primary evidence, which is relied on both by the Prosecution and defence, and frame charges on basis of so-called evidence, which does not even satisfy the test to be a “Secondary Evidence” as per Section 63 and 65 of the Indian Evidence Act, 1872?


2. Whether a document which is of sterling and impeccable quality and which infact has been relied both by prosecution and defence, can be ignored by the Trial Court, for the purpose of forming an opinion of grave suspicion at the stage of framing of charges while exercising power under Section. 227 of the Code of Criminal Procedure, 1973?


3. Whether any electronic record including text messages, emails, etc. can be deemed to be a “Document” under Section 3 of the Indian Evidence Act, 1872, and hence may be used as “Evidence” forming part of relied upon documents that are filed along with the Final Report under Section 173 (5) of the Code of Criminal Procedure, 1973?


4. Whether a material (electronic record) which does not  satisfy the statutory pre-condition (Section 65 (4) of the Indian Evidence Act, 1872) to be deemed a document can be relied upon to frame charges, treating it as evidence, to form a prima facie view for the purpose of exercise of power under Section 227 of the Code of Criminal Procedure, 1973?


5. Whether the Trial Court in exercise of jurisdiction under Section 227 of the Code of Criminal Procedure, 1973 is duty bound to consider material on record, especially prima facie evidence, and render at least a prima facie opinion on the impact of such material in forming an opinion of grave suspicion for purpose of framing charge?


6. Whether an email, text message, etc. being an electronic record can be deemed to be a document until and unless it satisfies the conditions as stipulated in Section 65 B of the Indian Evidence Act, 1872?


7. Whether a person who is in possession of the original device is mandated by law to produce the electronic record along with certificate under Section 65 B of the Indian Evidence Act, 1872 in view of the decision of this Hon'ble Court in the case of "Shafhi Mohammad v.  State of Himachal Pradesh" rendered on 30.01.2018 in S.L.P. (Crl.) No. 2302 of 2017?


8.  Whether an accused is required to raise objection as to the character of a material sought to be relied upon on the ground of lack of an affidavit as mandated by Section 65 B of the Indian Evidence Act, 1872 at the very first instance before the Trial Court, especially in view of the law laid down by this Hon'ble Court in case of Sonu alias Amar v. State of Haryana reported as (2017) 8 SCC 570?


9. Whether the Trial Court is bound to adjudicate upon such an objection at the stage when the Trial Court is exercising jurisdiction under Section 227 of the Code of Criminal Procedure, 1973, or it can refuse to decide the said objection on the ground that at the stage of framing of charge meticulous examination of material is not warranted?


10. Whether a person who is the Complainant in a case can also proceed to be the Investigating Officer, the Arresting Officer and also the Officer who files the chargesheet?

According to the FIR, she was raped by Tejpal on November  7, 2013, and next day inside an elevator in a lift of Guest House No.7, Hotel Grand Hyatt, Goa, during the magazine's THiNK 2013 festival in Goa.