The Law on 'Retractions': What Does 'False Claim' Mean for Brij Bhushan?

"Such change at this stage creates doubt about tampering of witnesses," Justice Govind Mathur said.

"Father of minor wrestler admits filing false sexual harassment complaint," news headlines emphatically announced on the morning of Friday, 9 June. 

"The startling admission by the father substantially weakens the case against Brij Bhushan Sharan Singh who has faced relentless protests for the past six months by top Indian wrestlers over allegations of sexual harassment of women competitors," PTI went on to proclaim, quite possibly to the elation of Singh's supporters. 

This is despite the fact that no alleged 'retraction' automatically results in a POCSO case being thrown out. The courts have repeatedly taken other evidence into account, in case of subsequent retractions. Some such instances have even eventually resulted in conviction of the accused.

This is also notwithstanding the fact(s) that: 

a) Brij Bhushan Sharan Singh is an MP from the ruling party (BJP) 

b) Important political figures are frequently denied bail owing largely to the clout and the influence they command: "…the applicant being a powerful person, there is the possibility of him influencing the witnesses," Delhi High Court had said while denying bail to former Deputy Chief Minister of Delhi Manish Sisodia

c) This is not the only FIR against Singh, and the other (adult) wrestlers alleging sexual harassment by the WFI chief are yet to waver from their complaints

d) Almost the entirety of last week was marked by a series of conflicting reports pertaining to the minor's subsequent statement to the police

Most strikingly, 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."

SO, WHAT HAPPENED?

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."

BUT WHAT DOES THIS PURPORTED RETRACTION MEAN? 

Simply put, by no stretch of imagination, can this retraction be equated with proof of the accused person's innocence. 

As pointed out by Senior Advocate Satish Tamta in an interview to India Today:

"The case doesn't get closed simply because the victim turns hostile or retracts. It has to be decided on merits."

The minor's father had reportedly told PTI, "Now that interactions have started, the government has promised fair enquiry into my daughter's defeat (in Asian U17 championship trials) last year, so it is also my duty that I rectify my mistake."

But our constitutional courts have in the past been wary of such subsequent changes in the complainant's stand. 

"...(in such cases) the victims do not have the freedom to compromise as if it were a compoundable offence or a civil cause," the Allahabad High Court had observed in Om Prakash vs. State of U.P. and Another.

In 2021 (State of Kerala vs Hafsal Rahman and Others), the Supreme Court similarly stayed a Kerala High Court order which had quashed a POCSO FIR on the basis of a compromise. The apex court, thus, allowed the police to continue probing the case.

EXAMINING THE BRIJ BHUSHAN CONTEXT

At this point, it may be pertinent to point out that media reports suggest Brij Bhushan Singh has reportedly been booked in over 30 cases through the course of his adult life – one of them for murder. He hasn't been convicted in any. 

Even the Delhi Police was evidently reluctant to register these two FIRs despite the wrestlers' repeated demands, until the matter reached the top court – and even for a little while after that. 

This is despite the fact that frequently other figures of authority are arrested and disallowed bail on the suspicion that they may wield their power and compel witnesses to change their statements.

But Singh has been allowed to remain free, stay home, give press statements, attend important meetings with other important people, while the investigation is underway.

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

Noting that "in the case of women wrestlers a complaint was filed with definite and serious allegations , but no arrest has been made so far and now one complainant has changed his version," Justice Mathur added:

According to the former Chief Justice, the WFI chief's arrest was necessary and in the interest of the investigation. 

THE COURT'S ROLE

He added that in such situations the role of the court becomes even more important.

"The court has to examine genuineness of each statement. It has to satisfy itself about voluntary and honest submission of facts before it, ensure that the accused has not tried to tamper with the evidence by any means. Further, it should also examine how the investigating agency has acted and whether any inaction on its part has caused injury to the pursuit of justice, including in context of the change in the complainant's version of facts."

SO, CAN THESE RETRACTIONS NOW BE REASON FOR BHUSHAN'S ARREST?

In response to this question, Justice Mathur noted that the reported change in a complainant's version is suggestive of evidence tampering and inducement of witness. So, "the investigating agency must arrest the accused now."

"The law provides arrests even without warrant in cognizable offences only to meet such eventualities. The failure to arrest the accused will frustrate the entire investigation and there is a possibility that an accused may go scot-free."

It may be noted that tampering of evidence is enough grounds to cancel bail. In fact, the apex court has held that even "reasonable apprehension" of such tampering is sufficient.

Thus, if such apprehensions – when found reasonable – can be adequate grounds for cancellation of bail, should they not be enough for arresting an accused?

The Arnesh Kumar guidelines (which explicitly state that arrests should generally be avoided in cases where maximum punishment is less than seven years imprisonment) also list arrests carried out to prevent the accused from tampering with evidence as an exception.

MEANWHILE

In conversation with The Quint, former Supreme Court Justice Madan Lokur said:

"Now the re-victimisation process has started with the wrestlers being taken to the so-called crime scene," he added.

As per a recent PTI report, a woman wrestler was taken to the WFI chief's residence on Friday to recreate the alleged crime scene.

(With inputs from PTI, India Today, The Wire, and The Print.)