Bombay High Court at Goa: A Division Bench of Revati Mohite Dere and M.S. Jawalkar, JJ. rejected Tarun Tejpal’s plea to conduct “in camera” proceedings in connection with the appeal filed against his acquittal in a rape case. The High Court held that:
“Section 327(2) CrPC would only be applicable to ‘inquiry’ or ‘trial’ and that the same will not apply to appeals, either appeal against conviction or an application seeking leave to file appeal against acquittal.”
Backdrop
The applicant Tarun Tejpal, former Editor-in-Chief of Tahelka magazine, was accused of committing rape on a journalist working with Tahelka. After a trial which went on for 7 years 2 months and 25 days, the Additional Sessions Judge, Mapusa, acquitted him. The Sessions Court gave him benefit of doubt, noting major lapses in investigation and major contradictions/improvements in testimony of the prosecutrix. The incident was of 2013 which allegedly happened during the annual THiNK Fest of Tehelka organised in Goa.
Aggrieved by the judgment and order of acquittal passed by the Sessions Court, the State of Goa filed an application before the Bombay High Court seeking leave to appeal. The High Court issued notice to Tarun Tejpal, who subsequently filed the instant criminal miscellaneous application seeking a direction that all the proceedings connected with the special leave to appeal be conducted “in camera” as per Section 327 CrPC.
Question
The short question for consideration before the High Court was: Whether Section 327 CrPC applies to the proceedings before the appellate court?
Law, Analysis and Decision
At the outset, the High Court referred to Section 327 CrPC (Court to be open) and noted that the words use in sub-section (1) thereof are “inquiring into or trying any offence“. Sub-section (1) of Section 327 states that the place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court. However, sub-section (2) makes an exception to the principle of open court. It says that the inquiry into and trial of rape or an offence under Sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB or Section 376-E IPC shall be conducted “in camera”.
Relying on Sakshi v. Union of India, (2004) 5 SCC 518 and Nipun Saxena v. Union of India, (2019) 2 SCC 703, the High Court observed:
“The object of Section 327(2) is to ensure that the inquiry/trial before the Court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment. Considering the nature of evidence that is required to be led in such cases, i.e. giving details of the acts committed including intimate details, it is imperative that the atmosphere is conducive for the victim to depose the same, far from the watchful eyes/gaze of the public, ruling out any discomfort whilst deposing. It is in keeping in mind the dignity and self-respect of the victim. The legislative intent is also to infuse confidence in the victim whilst deposing, which ultimately will have an impact on the quality of her evidence, which would ultimately assist the Courts in arriving at the truth and sifting truth from falsehood.”
Coming to the substantive issue, the Court emphatically negatived the contention that the term “inquiry” would apply to the instant proceedings. Referring to the term “inquiry” as defined in Section 2(g) CrPC, the High Court held that instant proceedings cannot be an inquiry by any stretch of imagination. In equally emphatic terms, the Court held that the instant proceedings were not a trial, i.e. continuation of proceedings, for the purpose of extending the benefit of sub-section (2) of Section 327 CrPC.
Discussing the terms “inquiry” and “trial”, the Court observed:
“There is a difference between an ‘inquiry’ and a ‘trial’. In criminal matters, inquiry is something different from a trial. Inquiry stops when trial begins, so all those proceedings before a Magistrate before framing the charge which do not result in conviction or acquittal can be termed as inquiry. Trial presupposes the idea of an offence but inquiry relates to offences and matters which are not offences viz., security proceedings and other inquiries relating to dispute about possession of immovable property, etc. Inquiry is the second stage of a criminal proceeding and is always to be conducted by a Magistrate and not by a police officer. Inquiry relates to proceedings prior to trial. The term ‘trial’ as used in the Code pre-supposes the commission of an offence but an inquiry may cover inquiries into matters other than offences. The word ‘trial’ is not defined in the Code but the definition of ‘inquiry’ impliedly defines ‘trial’ as every proceeding which is not an inquiry.”
Having regard to the above discussion, the High Court held that Section 327(2) CrPC will only apply to “inquiry” or “trial” and that the same will not apply to appeals, either appeal against conviction or an application seeking leave to file appeal against acquittal.
Next, the applicant had contended that having regard to Section 6 CrPC (Classes of Criminal Courts), Section 327 will also apply to proceedings before the High Court as it is also a “Criminal Court”. However, the Court found no merit in this submission. It was observed that the High Court is not created by the Code. Under the Constitution, it has powers of superintendence over all courts and tribunals situated within its territorial jurisdiction.
Lastly, the applicant contended that Article 21 will have to be read in Section 327(2) CrPC, inasmuch as the applicant’s right to privacy and reputation is infringed if “in camera” hearing is not afforded to the applicant in the instant proceedings. The High Court found itself unable to accede to this submission as well. The Court said that the applicant’s apprehension that his right to defend is taken away if he is not permitted to freely argue his case for fear of publication, was not justified. The Court observed:
“In proceedings such as these, i.e. rape cases in general, it is expected that all parties conduct themselves with dignity, sobriety and some sensitivity that is required, particularly, whilst reading evidence pertaining to intimate details. This, we think is not too much to expect from the Advocates appearing for the respective parties. Maintaining decorum in the courtroom is not merely a superficial means of protecting the image of lawyers and judges – but it is absolutely essential to the administration of justice.”
In such view of the matter, the High Court found the instant application was devoid of merits, and therefore it was rejected. [Tarunjit Tejpal v. State of Goa, 2021 SCC OnLine Bom 5465, decided on 24-11-2021]
