Previously, Tarun Tejpal, the editor-in-chief of the Tehelka magazine, was accused of sexually assaulting his then colleague in the elevator of Bambolin, Goa where Tehelka magazine’s annual event was being conducted. On May 21, 2021, Additional Sessions Judge Kshama Joshi had acquitted him of all charges. Standing true to the definition of victim blaming, the Court observed how the victim’s conduct did not hint at an assault and questions, too, were raised on her character i.e., her past sexual encounters were brought to light.

On April 23, 2022, a Division Bench of the High Court of Bombay (“Court”), consisting of Justices MS Sonak and RN Laddha, in the case of The State of Goa vs. Tarunjit Tejpal has granted leave to the State Government to appeal against Tejpal’s order of acquittal.

Reasons for Granting Leave to Appeal

1. In an attempt to understand whether or not a leave to appeal is to be granted or refused under Section 378(3) of the Code of Criminal Procedure, 1973 (“Cr.P.C”), the Court quoted a befitting paragraph from State Of Maharashtra vs Sujay Mangesh Poyarekar, 2008 (“Poyarekar”), “…At the same time, however, if arguable points have been raised, if the material on record discloses deeper scrutiny and reappreciation, review or reconsideration of evidence, the appellate Court must grant leave as sought and decide the appeal on merits…”.Adding to the same, the Court also pointed to the fact that the determining factor for the grant of leave is not whether the order of acquittal is “perverse” or not.

• The Court then tested the erstwhile order of acquittal against the principles laid down in Poyarekar, and said that it indeed required “deeper scrutiny and reappreciation”. The Court wanted further examination of whether what Section 53A of the Indian Evidence Act, 1872 (evidence of character or previous sexual experience not relevant in certain cases) regards as irrelevant, has influenced Tejpal’s acquittal order or not. Similarly, a deeper look into the SMS, Email communication, WhatsApp messages of Tejpal to the victim was needed in the context of corroboration of the victim’s testimony. As from the victim’s side, the act of consulting lawyers before lodging the complaint was needed to be taken into account.

• With these limited observations, the Court concluded that a prima facie case exists, as is required to be established at this stage. Also, if the material on record calls for deeper scrutiny, reappreciation, review or reconsideration of evidence, leave for appeal must be granted by the appellate court.

Settling the Question on Maintainability

1. The first contention of Senior Advocate Amit Desai (for respondent) was how there was no decision of the State Government to direct the Public Prosecutor to institute the appeal/application.

To this, the Bench observed that the decision dated May 25, 2021 was in the form of notings/endorsements in the files, and the decision was in the form of signatures/endorsements of the Chief Minister, and other officials of the State Government. Thus, the contention was rendered futile.

• Secondly, he contended that the Public Prosecutor and Director of Prosecution were bypassed in the decision-making process.

To reason with this, the Bench opined that basis the Citizen’s charter or the position or stature of Public Prosecutor or the Directorate of Prosecution, the decision of the State Government to direct its Public Prosecutor to present an appeal against the order of acquittal without involving them cannot be questioned. While it is certainly desirable, the absence of the same cannot be a ground for nullity.

• He then contended that the application was lodged even before any copy or certified copy of the judgment was obtained by the State Government.

While addressing this contention, the Bench observed, “Usually, the State Government would decide on whether to institute an appeal against an acquittal or not after obtaining a copy of the acquittal order and examining the reasonings therein. However, this does not mean that a decision to institute such an appeal, even before obtaining the copy of the acquittal order, becomes a nullity. ”

• It was also pointed out as to how the appeal lacked an affidavit.

To this the Court observed that it was not mandatory as per Rule 10 of Chapter II, Rule 11 of Chapter III, and Rule 1 of Chapter XXVI of the Bombay High Court Appellate Side Rules, 1960

While on the other hand, Solicitor General Tushar Mehta (for State of Goa) was rightly of the opinion that the case at hand involved some fundamental errors, and such deficiencies were not enough to attract preliminary objections.

The Court remarked that “Therefore, for all the above reasons, we not only reject the preliminary objections raised on behalf of the Respondent regarding the maintainability of this application but further allow the application and grant leave under Section 378(3) of Cr.P.C. because we are satisfied that a prima facie case has been made out and arguable points have been raised in the matter.”

Vaishali Jain, Advocate & Associate & Sampoorna Chatterjee