Tehelka sex assault case: Why Tarun Tejpal isn't getting bail
Tehelka Editor-in-chief Tarun Tejpal’s latest bail plea has once again been rejected by a Goa Sessions Court in an order dated 15 January. Tejpal is accused of sexually assaulting a junior colleague and under the new expanded definition of Section 376, Tejpal’s actions are defined as rape.
Tehelka Editor-in-chief Tarun Tejpal’s latest bail plea has once again been rejected by a Goa Sessions Court in an order dated 15 January. Tejpal is accused of sexually assaulting a junior colleague and under the new expanded definition of Section 376, Tejpal’s actions are defined as rape. Thanks to new definition of rape and new era of legal consciousness, it is now much harder to get bail for a rape accused, say legal experts.
According to Purshottam Tripathi, a practicing lawyer at the Supreme Court, while it’s impossible to say how long it takes to secure bail, “lower courts are now slow to grant bail, since rape is viewed as a particularly heinous crime.”
He says, “The Mathura rape case of 1972 was the one that shook up the entire system. After that we saw the amendment being made to the India’s criminal laws. Then we saw 498 (a) which deals with dowry coming in and of course in 2013, the latest amendment which expanded the definition. A lot of these laws and provisions are in place to protect the women, given the kind of patriarchal system that exists.”
One reason for a delay in granting bail can also be the equation of power between the victim and the accused. Denying bail "is often done to protect the case and to show that a fair enquiry was possible. In such a case, he is the girl’s former boss. The balance of power is in his favour. The court and investigating bodies want to show the witnesses or evidence collection is not affected either directly or indirectly by the accused, which is why bail may be denied," says Tripathi.
Gathering evidence required for a charge-sheet also is an issue: “Evidence given in police custody doesn’t hold in court. Which is why most accused are then sent to judicial custody. The length of course depends on the nature of crime," he says.
Securing bail even after filing of the chargesheet, however, is not a given. According to Vinod Ghai, senior counsel at the Punjab and Haryana High Court, “Once the chargesheet or challan is filed, only then the sessions court fixes the charges. The case is then fixed for evidence. Under Section 167(2), if the Magistrate finds no grounds to keep the accused in detention, then bail can be granted. However it depends on the court and if it feels that the custody must be extended, then it can do so.” Section 167 (2) states the conditions under which a Magistrate may authorise the detention of an accused before the case goes for trial. In crimes that carry sentence of ten years or life imprisonment or death sentence, the detention can’t exceed ninety days.
“Usually it can take 3-5 months in getting the bail, again depending on the merit of the case and how the defence argues in front of the court,” he says.
Tejpal’s defence presented in bail hearings has consistently tried to malign the victim. In fact in the latest plea hearing, the argument was made that bail should be granted because the victim is a ‘modern, emancipated, woman’. The defence pointed to “this background” to allege “material discrepancy in the victim’s statement", and pointed out that there was a delay in lodging the complaint. It also raised questions about the character of the victim, according to a report in The Indian Express.
In the Tejpal case, the trial is yet to begun but given the kind questions raised by the defence, it is evident that the victim’s character is being called into question. So far, however, the court has not been impressed by this strategy. The Goa Police is expected to file a chargesheet in the case by the end of January or the first week of February. Ideally the police is expected to file a chargesheet within 90 days of the FIR being lodged or the accused’s arrest.
Chaudhury has already come under severe criticism for appearing to shield Tarun Tejpal and also for downplaying her insensitive response to the grievances of the former Tehelka staffer.
Fast track court judge Vijaya Pol, while allowing the application filed by Tejpal, put several conditions which he will have to abide to meet his mother at his Moira village residence in North Goa.
It is not easy but the complainant, and the institution, deserves better.