Probe Complete Sans Arrest, Chargesheet Filed Against Brij Bhushan: What Next?

Image use for representation.

(Photo: Kamran Akhter/The Quint)

Around 200 people questioned and their statements recorded. Trips made to the accused person’s hometown. 70-80 witnesses questioned. 

And the Delhi Police has filed a 1500-page chargesheet against BJP MP and WFI chief Brij Bhushan Sharan Singh — accused by wrestlers of sexual harassment — under: 

• Sections 354 (outraging modesty of a woman)

• 354A (sexually coloured remarks)

• 354D (stalking)

• 506(1) (criminal intimidation) of IPC

This means that the Delhi Police investigation allegedly shows that Singh outraged a woman’s modesty, made sexually coloured remarks, stalked someone and also partook in criminal intimidation.

But he hasn’t yet been arrested.

Citing a lack of corroborative evidence, as per TOI, the Delhi Police has also filed a cancellation report in the POCSO case against Singh. The minor's father had allegedly, in a subsequent statement, claimed that he had filed a "false complaint" against Singh. We delve more deeply into it here.

WHY NO ARREST IN THE SEXUAL HARASSMENT CASE?

None of the offences that Bhushan has reportedly been charged with are punishable with more than five years.

According to TOI, an (unnamed) investigator in the case said: 

“The chargesheet against Brij Bhushan Sharan Singh and Vinod Tomar — accused in column no. 11 — has been filed without their arrest according to the guidelines issued by the Supreme Court in ‘Arnesh Kumar versus State of Bihar’ judgment wherein the Supreme Court has laid down the law regarding the arrest of the accused, more particularly in offences punishable up to seven years.” 

The investigator, reportedly, added, that the accused joined with the probe and cooperated with the evidence. 

“Further, no recovery or discovery of fact was to be made from them at their instance. Their addresses are also verified and there was no likelihood of them escaping the trial.”

BUT WAIT...

In conversation with The Quint, former Chief Justice of the Allahabad High Court Govind Mathur said:

"Since the accused was not arrested (during the probe),  the court should examine whether the alleged retraction of the minor’s statement is genuine, bonafide or not.”

Justice Mathur had, in a prior conversation with The Quint, also pointed out that in case of a cognizable offence, the police may arrest an accused without a warrant in order to carry out proper investigation, prevent further commission of crime, tampering of evidence and inducement to witnesses.

Noting that the provisions of the POCSO Act are much more stringent than the ordinary penal code, former Patna High Court judge Anjana Prakash said:

"If you see the sequence of events — popularly called the “chronology” — that led to the POCSO cancellation report being filed, it seems to suggest that something might have happened behind the scenes."

"But despite that, now that the matter is with the court, after the cancellation report also, the court is expected to apply its mind and see whether the offence (under POCSO) is made out or not," she added.

SOME CONTEXT

In a report (then) dated 5 June, the minor's father was quoted by The Print as having said:

"Yes, I have the spirit to fight. I am fighting it, but till when can I keep going? This experience has completely drained me."

On 8 June, PTI (along with other publications) reported that the minor's father had claimed that he had filed a "false complaint" against Singh. His actual grouse, they said he said, pertained to a seeming unfairness meted out to the minor during Asian U17 championship trials.

But on being asked by The Print about why he decided to go back on his statement, he also reportedly said he was "scared" and was "being threatened," and that this experience has been draining for both him, as well as his daughter.

He did not, however, answer the media outlet's specific question about whether he was threatened by Bhushan, or had been pressurised by the other protesters to file the allegedly fake complaint. He only said: 

"I support the cause of wrestlers."

His "retraction" also came amid a series of conflicting media reports pertaining to the minor's subsequent statement to the police.

(More here.)

SO WHAT NOW?

"In all fairness the court should call the (minor) survivor, take her in confidence, assure her that the court will protect her if she wants to depose against the accused, no matter how big he is."

Justice Anjana Prakash

Justice Mathur noted that if the court holds that the circumstances in which the first statement has been changed are dubious, it can issue directions for reinvestigation as well. According to him, the court has ample power and discretion to examine the chargesheet.

Three possible scenarios, as per Justice Mathur, emerge:

• If the court finds that yes, a charge under POCSO Act is made out, then it can frame charges under the POCSO Act.

• If the court feels that no charge is made out after looking at the evidence available, then they can say so.

• If the court feels that further investigation is needed they can direct the investigating agency to carry out further probe in the matter.

In Justice Mathur's view the court should throughly examine all the evidence and the charges should be framed on the basis of that. "The court should also check if any evidence has been tampered with," he added.