BWLW Dialogue With Senior Advocate Pramod Dubey on the Trial of Tarun Tejpal

Ritwika Nanda: Sir, congratulations on the judgment. It has been a well-fought out for around seven and a half years now, and for my sake and for young lawyers who have joined us today, sir, we need to take this opportunity to understand from you as to how a trial of this nature is to be strategized and be fought, successfully if I may add. Sir, we know that you have been an integral part of the core legal team that has been advising Mr Tejpal since the very inception. When did you join the team to strategize on this matter?  

Pramod Dubey:  Thank you, Ritwika and thanks to Business World for giving me the opportunity to interact with you. First of all, I'll pay my condolence to my colleague Mr Rajeev Gomes, a very young lawyer, 47 years old, and he left behind his wife and the young son, and the person who was basically associated with this matter from the very inception. When I joined, he also came at the same time. And after the charge and everything he did the maximum cross-examination, he prepared for the final argument, and he was in constant touch with me, for every strategy. So, basically, it's my personal loss and unfortunately, he could not see the outcome of his hard work. So, this is a very, I cannot say, we can enjoy this verdict, because this is the cost of one of my colleagues. And not only that, Mr. Tejpal also has gone through a very bad phase, when he was in jail, he lost his mother. Then he got the interim bail for joining the last rites but due to some paperwork, he could not make himself available for the joining the last rites. Subsequently, he also lost his father. So, it's a very bad phase and traumatic phase, we have faced throughout the matter. So far as my joining the team is concerned, I joined at the very first inception where the case got registered and we strategized to file the transit anticipatory bail before the Delhi High Court. It was unsuccessful because initially, got the state then again got dismissed. So, at that part, I was here and thereafter they moved the application to the Sessions Court, Goa. In between the charge, sheet was filed. When the charge sheet was filed before the competent court of the Magistrate Court, so, the family approached me because there was a very peculiar circumstance. This matter was being held by the Solicitor firm and they were doing the matter in very right way, they are putting their 100%. But when the chargesheet was filed the learned magistrate the same day committed the matter to the court of session, while supplying the copy of the charge sheet. So, there was a lot of panic in the family because they were deprived from all the exculpatory nature of the evidence, the prosecuting agency had deliberately not supplied those documents. 

Ritwika Nanda:  Sir, I remember from my personal experience. I had come to brief you in a matter I think sometime in 2015 or 16 and his family very distressed, of course, was waiting for a briefing with you in the matter. So just before we come into the intricacies of the trial, there has been a lot of media coverage on this matter. 

Pramod Dubey: So, the family approached me and I agreed to further continue with the matter. So, when I was going through the charge sheet, it was very disturbing because a lot of materials and Tarun was saying every time these materials are very important. But unfortunately, we're not having the document with us and the court has not supplied and clearly, there is no provision before the session court to move the application for the supply of documents. So, we were in catch- 22 but I had the experience to get the document from the court of the session by moving the application for the supply of government in another matter. So, I assured Tarun that we'll get the documents. So, I moved the application before the session court for the supply of all the electronic media, like the clone copy of the telephone number of Tarun Tejpal, the CCTV camera, and all the materials, whatever they had gathered. So, ultimately the system just passed the order and directed the Goa police to supply all those documents but they were not satisfied with the order, they directly came to the Supreme Court, because Tarun’s bail applications were pending in the Supreme Court, so it came before Justice Sikri and Justice Rohinton. But the Supreme Court upheld the order of the learned session court and passed the direction to complete the supply of the document, and they were taking the excuse, there is no forensic lab in India that can make the cloning because they were deliberately hiding this material evidence from us. Ultimately, the Supreme Court, because Justice Nariman was well conversant with the electronic evidence so, he said, there is no rocket science behind all these things, you set this lab and you will find this. Ultimately, they supplied the document to us, and those documents, the entire case turned on the basis of those documents. So that was a very positive move, the best strategy in the trial of this case. 

Ritwika Nanda:  Sir, this was a new strategic turn that took in the matter when you were introduced into the strategy making. 

Pramod Dubey:   Yes. 

Ritwika Nanda: We understand today that must have played a very important role. 

Pramod Dubey:   And that time I was leading the team. So, whatever decision I took, because I was accountable to my decision. So ultimately, we supported our decision with the help of the existing law of the land. 

Ritwika Nanda: Yes, sir. Sir, but just before I have a few other questions to understand the intricacies for of course my benefit, and for other lawyers. Sir just, this is what comes to my mind also a number of times, is when a matter is so widely covered in the media, and I'm sure before you were opted into the team you must have read about this in the newspaper. So, what happens, what is the perception, I am asking you the perception, not a counsel’s opinion, what is the perception that you have before when you're reading it from the newspaper and then after when you're drafted into the team. What is the change in the perception, is there any? 

Pramod Dubey:  See, I joined the office of my senior who was dealing, all the important cases of the days. So, I was very well acquainted with this media trial, and the pressure by the media, so I am basically accustomed to all this kind of environment. See, the question is the media is doing their duty, you being a defence lawyer, have to be your own duty. You should not fall in a trap of media. So, the first thing, which is required for the defence counsel, when there is a media trial, not enter into the reply with the media people, number one. Number two, don't instruct your client to come in media and give so much explanation. You always avoid to give any explanation or enter into any controversy in media. Thirdly, I remember one case where it was related to an eminent film actor. So, he was being prosecuted under TADA. So, he basically gave an interview with a senior lawyer, and he was the number one criminal lawyer those days. And he made the confession in the media yes, I possess this arm for my protection. That confession became the extrajudicial confession, and that became one of the crucial evidences for his conviction. So, we don't believe in going into the media, give explanation to each and everything. And furthermore, this case is pertaining to rape case and there are certain guidelines of the Supreme Court, the Vishakha guidelines, there are certain provisions in the CRPC, you have to maintain the secrecy, the decency of the prosecutrix and you should be more sensitive towards the prosecution and the prosecuting agency. So, you have to maintain full privacy of the entire things. So, it is incumbent upon the defence counsel as well as the accused, to maintain decency, respect and privacy in the entire matter. So, the moment you will divert and enter into the media front, then you will be affected and you’ll lose your attention or all the energy. So, one should never enter into the media things and not should be affected by what the media is saying, because they are selling their story. They are doing their duty. They are collecting the evidence, and their evidence is not the gospel truth, because it is not authenticated by the court of law. So, never enter into the media debate, media front, don't use these kinds of things in your trial. 

Ritwika Nanda:  Sir, now just elaborating a little on media trial and we have seen the issue raise up in the recent past where the Bombay High Court has also passed various directives against media trial. Now, this matter started in 2013, then the Me Too movement gained traction in India sometime in 2017- 2018. And at that point in time I understand the trial in this matter was at its peak, as a counsel, sir, do you think there is a different strategy to be adopted when you know that issues that you're raising or arguments or the matter is going to be widely covered, and maybe the public perceived opinion was also at that point in time against Mr. Tejpal. 

Pramod Dubey: See, the Tejpal case is, as I mentioned, is squarely covered in the supreme guidelines in the rape case, its exceptional circumstances and the beauty of this case, when I landed at Goa airport with my team for the argument on charts, It was very difficult to enter into because I was not getting a space, and 3-4 channels, they were so insistent, they were not letting us go and then the chase to our hotel. Every time they were chasing, but we are not being diverted. And what happened, It is the prosecuting agency, and the other people on the side of the prosecution, they were bringing the media people inside the court. So, I made the request to the court, that was the lady judge, I made the request and said, Ma’am, this is a very sensitive case and related to the rapist and there are guidelines. So, the entire proceedings should be to be in the camera trial. So, there was no leak to the media from our side, and even the CGM court at the time of supplying the additional session just put at the time of the supply, there was an order, not to leak the information to the media so there was order and then again, the session just passed the order and entire thing happening in-camera proceeding. So, there was no question of the trial being affected by the media. At that time, media was trying their best, there was some debate, there was a debate on Times Now, on Republic, there are so many channels when the trial was going on. But we as a defense counsel team, never paid attention to the media and what the media is doing and what they are giving the message to the society at large because our focus was only to our defense and putting the case, assisting the court and bringing all the truth before the court of law. 

Ritwika Nanda: Correct. Sir, it is very essential, like you said, I think to as defence counsels to kind of maintain a distance from the media and not get influenced by it, because then it affects your performance in the court also. Now sir, we know that an order was passed by the Sessions court restricting specifically restricting information to the media or media coverage in the matter. I think that must have is I think what you've mentioned was a step taken. In such cases, what are the additional precautions that an accused can take to insulate himself at least to a considerable extent from the media? Are there any additional steps that can be taken in such cases? 

Pramod Dubey: See the tragedy in this matter, Mr Tarun Tejpal is from the media family, and the way media behaved with him. Every time they're chasing Tarun Tejpal, his family, his daughters, his sister, his wife, his lawyers. So, every time they are trying their best to bring some controversial statement so that they can save their story but my advice to the accused person is, you should avoid media as much as possible, you should not enter into the media debate. 

Ritwika Nanda:  Are there any other legal safeguards that can be utilized in this case? 

Pramod Dubey:  See, this is basically pertaining to the rape case, and outraging the modesty of the woman and there is a provision already there in the CRPC, 325 CRPC is already there. We put the restriction on the trial and all the materials if you agree, then, of course, the option is open, you can move the application before the court and the court will pass the order. If the court thinks necessary, the court will pass the gag order restraining the media person or any social media. In this case, when we made the request only to the court, that this is a rape case and rather accused make the request to maintain the decency and privacy, decency of the prosecutrix and the privacy of the entire material. Immediately thereafter there was media news that the Goa court passed the gag order restraining the media, this is against the fundamental right, this is against the freedom of speech. We got surprised that what is happening in this country. You are not knowing the fundamental law, there's a provision, there’s a Supreme Court law without reading, you are selling your story. Basically, what they are doing, they were making a Taj Mahal out of someone else’s grave. This was the irony of this matter. 

Ritwika Nanda:  Right. So now, of course, this matter involved an offence under Section 376 of rape, and I know for a fact that you have been involved in various other matters where this offence has been included. Is there any specific strategy or approach to move forward in this matter, as a lawyer, I am asking? 

Pramod Dubey:   See, Ritwika, these days we are coming across so many cases where this kind of allegations are coming, a person is being prosecuted. So, being the defence lawyer, you have to examine each and every material meticulously and you should bring all the substance, basically the evidence, like telephone chat, internet chat, your call location, so many things are available, and you see in this matter, we got several materials from the documents supplied by the prosecution, that is the mobile phone of the concerned people.  The information we got, which was the undisputed evidence, every information contradicts the case of the prosecution. The case which was orchestrated by the side of the prosecution, we have an answer from the materials supplied by the prosecuting agency that was lying in the telephone, that was lying in the CCTV camera. So, we had ample evidence to establish that this case is based on the falsity concoction and fabrication.  

Ritwika Nanda: Sir, the first lesson I understand as we learn that as an officer of the court and as a defense counsel, it is first imperative that all the evidences be gathered and examined properly, not to be swayed and that is how we have to start dissecting a matter. First, analyze the evidence that you have on record, or if that is not on record at least call for the evidence and case steps before the court calls for the evidences, like you said. 

Pramod Dubey:  Had we not moved the application before the session court for the supply of the evidence, the thing would have been changed completely. And Mr Tarun Tejpal would have been deprived from the exculpatory nature of the evidence and the valuable evidence, which gave him a clean chit in this matter. 

Ritwika Nanda:  Now, sir, one thing, of course, my information about the matter has been from news reports, I'm hoping that they are correct but they might be wrong so please correct me if it is wrong. We saw from the news report that along with the charge sheet, the police had filed an email that was sent by Mr. Tejpal and quote unquote I'm against reading it from the news report, he wrote, I apologize, unconditionally for this shameful lapse of judgment that led me to an attempt a sexual liaison with you on two occasions during 7th November and 8th November, despite your clear reluctance that you did not want such attention from me, quote unquote, I believe that this now, sir what I want to ask is, more or less this is what the allegation against him was, and before the chargesheet was filed this email must have been sent him. Sir, I am asking from a legal standpoint purely as a lawyer, as a defense counsel, how are we supposed to overcome such an overwhelming assuming this is to be correct overcome such an overwhelming piece of document.  

Pramod Dubey: Ritwika, I'm very fortunate I'm facing this question put by a person who is has the legal background, who is experienced and with a senior partner in Trust Legal. So, I'm very happy you put this question. If you don't take an email in isolation if you go in the background and you'll find the prosecutrix dictated the terms and conditions to Mr. Tejpal through the email that you wrote these facts on the letterhead of the Tehelka. What was the need to write him on the letterhead of Tehelka? And if you are asking an apology at your terms condition upon your dictation, can you say that these were with free will? Can you say this statement was a volunteer statement? I'm not going the admissibility at this point, I'm not admitting this fact that Tarun Tejpal turning sent this email, I'm not going in this controversy, but so far as the legal aspect is concerned, If the things, the maker has not made any statement, whosoever whether Mr X, Mr y, or anyone with his free will, voluntarily without undue influence or the pressure or cohesion. Can you say this is the free statement and that would be treated as a confession? Can we pass the litmus test of the extrajudicial confession? No. And there's a lot of controversies because the mail, then after two minutes again mail three minutes again mail, then did that, and when the mail was returned, Mr Tarun Tejpal having not the password, somebody was also having the password, there are a lot of controversies. And this kind of evidence are not admissible evidence than be the sole basis. As per basic criminal jurisprudence and not entering into that controversy because I know to go through the Judgment. I have not gone through the judgment, so I don't know what is the finding of the court on this aspect. But in my view from the very inception, this was not a piece of evidence number one, number two, for the sake of the argument, without prejudice to anything even this could be the corroborative evidence as per the criminal jurisprudence, you cannot convict a person on the basis of corroborating evidence. You have to first establish the substantive evidence, the primary evidence, then you go to the corroborative and secondary evidence. So, the entire media hype was this email he admitted, made the admission, where is the admission? This is not the admission at all. 

Ritwika Nanda:  So, from a lawyer’s perspective, even when we see a piece of evidence like this that also has to be dissected and seen whether at all it passes the litmus test, or whether the requirements of admissibility are met or not. Clearly, the arguments that you must have raised during the course of the matter would have found favor with the court and that is why he has been given today a clean chit. Now, this incident that was complained of, it happened in a five-star hotel, and again news reports reported that the CCTV cameras in that hotel had captured the incident. Is that correct? 

Pramod Dubey:  I would beg to differ with you. The incident was not captured by CCTV camera, because, as per the allegation, the incident took place inside the lift, and total duration was 1:10 second, closing opening the lift, including closing also. Basically, in essence, 70 to 75 minutes, second was there for completion of the entire incident. So, the CCTV footage was the pre-conduct and the post-conduct of the parties, meaning by the prosecutrix and Tarun Tejpal. And from the CCTV camera which was basically concealed at the inception by the prosecuting agency gives the clean chit to extent of Mr Tarun Tejapl. Because we cannot save the CCTV, it’s a very sensitive matter, and there is a restriction. I have seen, and from the CCTV, it is established that no incident had occurred, number one. Number two, the story which was made that there was a detailed conversation between prosecutors and Tarun Tejpal, saying your daughter is my friend, you are this way, I had lunch, dinner with your wife, so many things. This could have not happened in this short span of 10 seconds and a lot of contradictions. The way the prosecutrix had been cross-examined, the defence was able to prove that she’s not the trustworthy witness, not the reliable witness and you see in the rape case, the law is certain, a mere statement of the prosecutrix is sufficient to convict the accused if a prosecutrix is of sterling quality, she’s reliable and trustworthy. So, first you have to pass the litmus test of sterling witness, reliable and trustworthy witness, then your testimony would be the sole ground for the accused the rape cases. In this case, the defense was able to establish, the witnesses, including the prosecutrix were neither reliable, nor trustworthy, and not the sterling quality, and their testimony cannot be accepted, and the trial court has rightly discarded their testimony.  

Ritwika Nanda:  Now, in today's world we understand that electronic devices like phones,  CCTV cameras, etc play a very crucial role in the investigation. Now, of course, you mentioned that if the CCTV camera did not accurately capture the incident as had been portrayed by the media reports at that point in time. So, then what is the extent of admissibility of this kind of evidence before the court, and what kind of role did electronic evidences in this matter actually play a crucial role because you must have relied very heavily on, as you said that the prosecution had suppressed the documents, and you had to move between various courts to have those evidence allowed. What was the role of these electronic devices and in today's world, how is it that a lawyer is supposed to approach in evaluating the sanctity of evidence and to what extent can be admissible, and how much reliance can be placed on that? 

Pramod Dubey:  First thing, you must be knowing there must be 65 B certificate. Number two, you are entitled for the clone copy of the material and as per the latest supreme court judgment, you are also entitled to the material examined through the forensic lab. So, the accused has also the right to get it examined.  

Ritwika Nanda: I'm sorry to cut you how long does that take?  

Pramod Dubey:  This is the software, software you put the material and find within 10 minutes, half an hour. It does not take much time. The software is there, you put the material, the software will give you give the wave formation and everything would be there, because they have to see the modulation, amplitude, result frequency modulation, and the tempering, and the break. This is for the sanctity of the material. Number two, you must be knowing if the prosecuting agency is relying upon an evidence. They cannot dispute the admissibility of that evidence. They don't have right. The doctrine of estoppel applied upon them. So, in this case we relied upon their evidence, so they had no reason to disown those evidence, because they had collected, they are cleaning the sanctity of the evidence. So, in this case we could not get the opportunity and it was not required to us to send this material for the forensic examination. We relied on their forensic material. And of course, the entire Tarun Tejpal case got demolished, first, on the basis of the circumstantial evidence, the second on the electronic evidence, and the cross examination of the witnesses. On every aspect the defense was able, if there are 100 allegations made by the prosecutrix, from one allegation to 100 allegations, the defense is able to demolish that she is not a trustworthy witness.  

Ritwika Nanda: So, what you are saying is that if the evidence that is presented by the prosecution is not that incriminating you don't need to get it tested but if it is incriminating you should definitely get it tested? 

Pramod Dubey:  No, if you have doubt, then you can, you have the right you can get it done but you cannot only go, oh this is the incrementing, so I’ll get tested and I’ll get the different opinion. No, this is not I'm suggesting. One should not suggest being the officer of the Court. We should always be fair in the trial. See, the outcome of the case is the hand of the presiding officer who is conducting the case, being the member of the bar, we should always be fair, assist the court immaterial what will be the outcome of the case. We are in the burden duty in the member of the bar to be fair always. 

Ritwika Nanda:  In this case, how much gold did the mobile phone locations etc, play? Did that play a pivotal role in establishing your defense? 

Pramod Dubey: See, we came across one evidence where there was a case of the person that one day after the incident, the prosecutor left for Bombay a nd she was not in Goa. But her mobile location, we were able to find that she was very much in Goa, and she was with one of her colleagues on the sea bridge. She stayed in Goa for quite a long time. So, this evidence also contradicts her statement given to the police and under section 164 also. The mobile location, mobile chat, exchange of the information, these all are the crucial witness, and it can help the prosecution or the defense, depending on the nature of the evidence. But there is every likelihood of the tampering of these evidences, if you go to the gray market, Khan Market, Gaffar market or Nehru place, you will find. I was surprised. They had the software, if you download the software in your mobile even if you are not using your mobile phone, I get the SMS in your name, you have sent me the SMS and these are the contents, though you have not used your mobile phone. 

Ritwika Nanda: So, boon and bane of technology.  

Pramod Dubey: So, you have to very meticulously relying on this electronic evidence that's why the Supreme Court again and again saying, whosoever is the maker, whosoever is the custodian of the evidence, must give certificate under 65B of the Indian Evidence Act.  

Ritwika Nanda: Sir, we know that framing of charges is a very crucial step in the process of this matter, after the session court order on charges which were framed, you appeal against that before the High Court, and before the Supreme Court and the Supreme Court dismissed the appeal. What I want to understand is at that stage, did you think, what did you think would be the likely scenario, were you are satisfied with the decision of the Supreme Court or did you at that point in time, expect a different outcome? 

Pramod Dubey:  See, there is no question of our own satisfaction. The Supreme Court is the Apex Court, whatever the verdict came, we had no option, we had to accept the verdict of the Supreme Court. So, there's no question of satisfaction but from the very inception of this case, our legal team was very much confident. We tried our best for the discharge. I argued for an exhaustive argument addressed by me the four days. And you’ll be surprised, I'm a very conservative lawyer, I don't disclose my defence at any stage, unless and until that situation comes. But in this case, we were so confident, we opened our entire defence. We disclosed our entire defence to the prosecution. We gave them the free hand. These are the loopholes in your case, these are the contradictions. So, everything was given, despite the fact the defense, the team of Mr Rajeev Gomes and some displays Mr. Shrikant Shivade, the defence team were able to demolish the case of the prosecution. We were quite sure that this is the feed case for discharge, but in any case, the order is order. This is the depreciation by the court of law, and we have to accept the verdict. So, we accepted, and we are never disappointed in this matter because we knew, this case will not stand at the trial because we had ample evidence to demolish the case. 

Ritwika Nanda:  Right. So, the lawyers are the best ones to know the position as to the status of the evidence. Another thing that I want to understand is the incident that was complained of happened approximately on the seventh or eighth of November. The FIR came to be lodged, sometimes on the 22nd of November or so. Now, what I want to understand from a legal standpoint that what is and I understand that the FIR was lodged, the complaint was made by a third person. So, what is the effect of a third person complaint in such a matter? And also, there are various statements that were recorded by the police after filing of the charge sheet. Apparently, a lot of friends came up and said that we had heard this incident over a period of a number of days. So, I want to understand this, what is the role of the third-party complaint, to what extent can that influence or affect the proceedings, and the second thing is, how do we determine as to the conduct of the complainant, conduct of the prosecutrix in this matter, over a period of days. Is it correct that you know she will go, anybody will go around, citing them or narrating the incident and thereafter, creating do we call that creating of witnesses? 

Pramod Dubey: Let me answer the first question regarding the locus of the third party. In the Criminal Jurisprudence barring some few special acts, the provision in the few special act, there is no bar to becoming the informer there rather there is a provision in CRPC that if you are family, you are aware of the commission of the congregable offense. It is your duty to inform the police. So, there is no bar, anyone can put the law in motion. So, this is one aspect. The second aspect, this has not happened in this case, this is a very peculiar case. After the alleged incident, we came across the evidence where there was proper communication amongst so many people, the draft was circulated, then they give their opinion, they were waiting and then there was an interesting discussion between the parties, so we filed the Police Complaints, some suggested don't go directly to the police, just bring this fact in the social media later social media start hue and cry then the police will automatically take and this happened in this case. So, there is a lot of deliberation, the legal consultation, the lawyer gave the advice, the lawyer’s office gave the advice, female counselor was there, very young female lawyer, I'm not talking about the senior lawyer who was chatting, we know how we put in the social media then we should take the route of the social media, see the history and the manner of hiding and the purpose behind all the things. So, this is started in this way and the Goa police came, they started the investigation, and immediately they recorded, and so far as the consulting the other person and their statement are concerned, you must be knowing, these all statements are a very belated statement and the legal terminology, the hearsay evidence. They heard, they were not the eyewitness, they heard. See, in a rape case even when you're making the statement before some third person immediately after the offence, the test is immediately after the offence. The moment you came out of the company of the accused, the test is you are required to make the statement immediately after the first person that you make. In this case, that was not done, it was done after very long gap, and how the people who were getting connected and the disclosure was made, so many things happened. So, the testimony of their statement and whatever they have made did not pass the litmus test, the test as prescribed in the Indian evidence Act, we cannot go the social perception and even we cannot go rule of the evidence. We have to strictly follow the Indian Evidence Act, and it's the burden duty of the prosecuting agency to prove that case beyond a reasonable doubt. In this case, this case is based on the doubt, everywhere there’s a doubt. One doubt is sufficient for the acquittal of the accused, this is the criminal jurisprudence, but the foundation of this case is based on the doubt ended with a doubt. Everywhere doubt. 

Ritwika Nanda: Sir, it's two o'clock and I understand that you had mentioned to me earlier 

Pramod Dubey: you can continue for another 5-10 minutes  

Ritwika Nanda: Sir, essential learning that we had today is to understand the timeline when the statements were made by the complainant and the witnesses who had come forward as to, at what point in time they had heard of the narration and whether they can be admissible we need to deal with that also. Now, you mentioned that it is on the prosecution to prove beyond reasonable doubt which i understand the Indian Evidence Act in matters concerning section 376 rape etc. The presumption is towards the complainant, that if somebody has said, that an offence has offered the presumption and law is in their favour. So, in this case, how did you overcome that presumption? 

Pramod Dubey: Thank you so much, you rightly put this question, I appreciate your questioning me. You see, Ritwika, 114 A, you cannot read 114A in isolation by saying there is a presumption. The nature of the presumption is rebuttable presumption. The moment the word rebuttable is there, your onus lie upon you to rebut the allegation, rebut the facts. So, the first onus lies upon the prosecuting agency to prove their case beyond the reasonable doubt. If you were able to prove the case in the four corners of law laid down by the legislature, then onus lies upon the defense, the accused to prove that No, I am innocent and this offence is not committed. In this case, the foundation, the fundamental of the allegation has miserably not been proved by the prosecuting agencies, where is the question of the rebuttal by the accused? There is no question of the rebuttal by the accused rather, accused, the Team of the Mr. Tejpal had gone further whatever was required under the law, to establish the entire cases is a false case and there is not a single legally admissible evidence. You have to cross the bridge, you have to cross the threshold by proving beyond the reasonable doubt.  

Ritwika Nanda:  And that is when section 114A comes into play on the presumption pattern.  

Pramod Dubey:  Yes. 

Ritwika Nanda:  But often it is confused that 114 A will prevail over the reasonable doubt. 

Pramod Dubey:  Yes. If you proved the offence that onus of course, onus lies upon the accused to prove that I have not committed, if he has really not committed, if he has committed then there’s no question, but once he has committed, he already got the opportunity at the time of framing, whether you have committed the guilt or not, whether you are claimed to be tried or not. If they are saying, I'm not committed, I claim to be trapped. So, we cannot give the narrow and the conservative interpretation or 114. The first onus lies threshold upon the prosecuting agency to prove their case then shift the burden. Prosecuting agency cannot extend the lakes of the accused by saying this is 114. 114 will come subsequently, first you discharge your duty on us, against me then I’ll come forward. 

Ritwika Nanda: That is an essential point to understand and learn, sir. But are there any other challenges that you think you faced which were unique to this case and maybe it was a new learning for you also? 

Pramod Dubey:  See, being a student of the law, every time we are in the process of learning. And this is also the learning experience. I learned a lot. I got the best support from my legal team. I got interacted with so many legal dignitaries, discussing the matter with the top lawyers, interacted with my clients develop the argument. So, I was there till the final decision by the High Court on the point of the charge, then some other outstanding counsel came and then Mr. Rajeev Gomes, being the local and he was very brilliant, dynamic, hardworking, courteous, focused, and he was very supportive to me. He extended all his assistance to me whenever I required, and whenever he found any ambiguity, any confusion, without hesitation, he was calling me. So, it was a good learning experience. I'm very thankful to the Court also, the court appreciated the material in the right direction, despite there was a media hype and there's a lot of pressure. 

Ritwika Nanda:  Now just to conclude, this is something I have to completely ask now the thing is, again, in a news report Ms. Ramani got a favorable order from a Delhi Court recently in an allegation which was revolving around criminal defamation. And if I quote unquote again the news report said, India's Me Too movement recently got a boost after a journalist won a criminal defamation case against editor turned politician. Now, what do you think, do you think that the taglines which the verdict was delivered yesterday, the judgment is probably still not out. Do you think that the new tagline that is going to read that India's Me Too movement recently got a blow or something like that. 

Pramod Dubey: See, at the inception I have already mentioned, I'm a very conservative lawyer practicing in the criminal side. I would have not advised, in Ramani case to file a defamation case, because the moment you file a defamation case, the onus lies upon you to prove the case and you will be subjected of the cross examination, and the other party can conduct a cross examination at any length, they can put any question, they can enter into the private life and your private domain, and they give the opportunity in this case. In the Ramani case, I got the occasion to go through the order passed by the learned Metropolitan Magistrate in this case, the findings have no coherence with the evidence. You are taking the examples from the Mahabharat, Gita, Ramayana, this is not the codified law, which is prevailing in this country. You are coming to conclusion with a presumption rather you are holding the complaint as guilty. So, these all are unknown in the criminal jurisprudence, I don't agree with the judgment passed by the learned trial court. So, I cannot accept that this is the blow and everything being the lawyer practicing in the criminal side. And still the matter is in the adjudication before the appellate court. So, it has not attained a finality so it is premature to make any comment on the verdict. So, I don't think this is the complete blow or anything. Ultimately, you have to go through the rigors of trial and proving the case as per the Indian Evidence Act.  

Ritwika Nanda: Yes. Sir, the Goa government has already announced in the media that they are going to be appealing against that 

Pramod Dubey:  I am very happy with their statement when I heard yesterday, the learned special prosecutor, made the statement that it is a setback for them so, I'm very happy this setback came to my client in 2013. It came to us when the charges were framed. Now they are meeting this setback, and they have the right to file the PIL, let them file, let them exhausted their remedy but their personal perception cannot be appreciated. Ultimately, it would be examined by the Court of law. First, they have to file the appeal, satisfy the conscience of the court, whether fit for granting the leave to appeal. So, they have to cross so much breeze, and I don't think this is the fit case for appeal. The way the trial has conducted, it can be said, this is an instant reaction when they will read the evidence, appreciate the entire judgment, then I think the wisdom will prevail upon them, not to file the appeal. Let us see. 

 Ritwika Nanda: But, that is a remedy that is available to them  

 Pramod Dubey: of course, they have a remedy, they are well within their power to avail that remedy. 

Ritwika Nanda: Sir, one leg has been fought, two other legs before the High Court, Supreme Court still remains now, but you mentioned about the loss of your colleagues. We are of course in these terrible times very sad to hear such news. Be that as it may, sir. Thank you so much for joining us. We did understand quite a few intricacies and how to approach in a matter like this. It has been an eye-opener. Thank you for taking out the time for joining us and for all our other members who have registered and are watching this thank you so much. 

Pramod Dubey: Thank you so much, Ritwika, Ms Gareema Ahuja, Dr Annurag Batra, Krishnendra Joshi, Ruhail Amin and the entire team of Business World. 

Ritwika Nanda: Thank you so much, Sir, for joining us. 

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