The Bombay High Court at Goa on Wednesday rejected an application moved by journalist Tarun Tejpal under Section 327 CrPC for conducting hearings through in-camera proceedings against his acquittal in a 2013 rape case.
Tejpal, co-founder and former Editor-in-Chief of Tehelka Magazine, was acquitted of all charges on May 21 by a fast track court in Mapusa, Goa. He was accused of forcing himself on his junior colleague inside an elevator of the Grand Hyatt, Bambolim, Goa on November 7 and 8, 2013, during the magazine's official event - the THiNK 13 festival. In her 527-page judgement, Special Judge Kshama Joshi had extensively commented on the woman's non-rape victim like behaviour and faulty investigation to grant Tejpal the benefit of the doubt.
Pursuant to the rival submissions, the Bench rejected the application for in-camera proceedings and accordingly orally observed,
"For reasons to be pronounced separately, the application is hereby rejected."
Thereafter, Senior Advocate Amit Desai appearing for Tejpal informed the Court that they will be challenging the instant order rejecting the prayer for in-camera hearing. Accordingly, the Bench listed the matter for further hearing on December 6, 2021.
At the outset, Desai raised a preliminary issue for conducting in-camera proceedings before a Division Bench comprising Justices Revati Dere and MS Jawalkar. He stated that Section 327 CrPC is a mandatory provision and seeks to protect the reputation and the interests of both the parties concerned i.e. the accused as well as the victim. He also argued that Section 327CrPC is in consonance with the fundamental right to a fair trial as envisaged under Article 21 of the Constitution.
On the other hand, Solicitor General Tushar Mehta vehemently opposed such a submissions and remarked that 'these are interruptions and not contentions'. He further stated that the benefit of 'in-camera proceedings' is only available at the stage of trial and not at the appellate stage. He also made it clear that his intention is not to 'name and shame' the accused.
Submissions of Amit Desai for Tejpal
Referring to Section 327 CrPC, senior advocate Amit Desai emphasized that it is a mandatory provision and that every proceeding in the instant case including pre-trial proceedings before the High Court had been conducted in-camera. He further submitted that it is pertinent that the reputation of both the parties are protected equally as both have the constitutional right to protect their privacy.
He further pointed out that the 'presumption of innocence of his client stands fortified' considering the fact that he had been acquitted by the Sessions Court. Opining that his client's right to a fair trial cannot be infringed upon, the senior counsel argued that submissions made in Court have to be done in a restrained manner out of fear of publication if due caution is not exercised.
In this regard, he referred also to a report of the Law Commision of India wherein it had been proposed that trials of rape and other allied sexual offences must be conducted through in-camera proceedings so as to prevent the publicity of details of intimate character. "On a careful consideration, we are of Preserving the opinion that here is need for legislation to anonymity preserve the anonymity of the complainant and the accused in the case of rape and allied offences (subject to exceptions in regard to certain specified cases)", the senior counsel quoted from the Law Commission report.
The senior counsel further placed reliance on the judgment of the Bombay High Court dated September 24, 2021 in P v. A & Ors wherein the the High Court while dealing with a Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) matter had outlined that it is imperative to protect the identities of the parties from disclosure, even accidental disclosure, in these proceedings.
Reliance was also placed on the Supreme Court judgment in Nipun Saxena v. Union of India to contend that reputation of both parties in such proceedings must be protected. He underscored that while the judgment was primarily in the context of protecting the victim's identity, Section 327 CrpC is wide enough to be extended to envisage the rights of the accused as well as the Law Commission had intended.
"I cannot always look over my shoulders..my fundamental right to defend myself cannot be taken away. I will be deprived of my ability to effectively defend myself", the senior counsel argued on behalf of Tejpal.
Referring to the Supreme Court's decision in Puttaswamy v. Union of India, he further argued that right to reputation and privacy is now a fundamental right and that Section 327 CrPC has now become a facet of Article 21 of the Constitution.
It was further submitted that Section 327 CrPC is applicable to proceedings before a Criminal Court for the purpose of inquiry and that an appeal is a continuation of proceedings. Opining on the application of Section 327 CrPC to the present stage of proceedings, the senior counsel further remarked, "If we curtail it to only proceedings before a subordinate Court then the underlying principle of Section 327 CrPC is lost".
Pertinently, it was also argued that the State has failed to show what prejudice can be caused to the parties if in-camera proceedings are held as per the mandate of Section 327 CrPC. Senior counsel Desai also emphatically pointed out to the Court, "we are protecting the victim as well."
To this, the Bench remarked, "The Court protects the victim, the statute protects the victim. It is not your concession". The Bench further stated that existing laws make publication of victim's name a punishable offence thus guaranteeing due protection.
Submissions of Tushar Mehta for State
Solicitor General Tushar Mehta argued that the application of Section 327 CrPC is barred in appellate proceedings as an appeal is neither a trial nor an inquiry. He also referred to Section 2 (g) CrPC in this regard to point out the definition of an 'inquiry'.
It was also underscored that Section 327 CrPC specially uses the expressions 'trial' and 'inquiry' as a result of which its application is not warranted at the instant stage of appellate proceedings. He argued that this is a 'conscious scheme of the legislature' and the Court must pay heed to it.
SG Mehta further highlighted that after the final verdict, there is a limitation period of 3 months to challenge the same in appeal. In such circumstances, there is no statutory bar on either of the parties to discuss the case and the verdict. Accordingly, once an appeal is filed, a party cannot pray for in-camera proceedings. He emphasized that the impugned judgment is in public domain and so is the evidence. He also averred that the impugned judgment had been widely circulated.
Referring to the aforementioned Law Commission report, SG Mehta argued that it does not contemplate appellate proceedings and that it is at best an opinion. He pointed out that the parties are governed by the Statute which does not allow for the instant application for in-camera proceedings.