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#MeToo: Bombay HC slams police, questions possibility of impartial investigation in Karan Oberoi's case

The judge asked why, after over a month into the FIR being filed, the accuser’s phones were not seized.

Updated: Jun 09, 2019, 01.32 PM IST
Karan oberoid
Karan Oberoi’s lawyer Dinesh Tiwari had been urging that the text messages exchanged between the two would help establish that the woman had no case against Oberoi.
(This story originally appeared in on Jun 09, 2019)
Case highlights presumption of guilt that accused carries whenever such a charge is levelled.

MUMBAI: A month after actor Karan Oberoi was sent to jail for alleged rape and extortion, the Bombay High Court, hearing his bail plea on Friday, pointedly and repeatedly asked the police whether they had seized the 34-year-old rape accuser’s phones.

Oberoi’s lawyer Dinesh Tiwari had been urging that the text messages exchanged between the two would help establish that the woman had no case against Oberoi.

The HC judge, Justice Revati Mohite Dere, asked why, after over a month into the FIR being filed, the accuser’s phones were not taken for forensic analysis. “You are expected to do a free, fair and impartial investigation,’’ Justice Mohite Dere said several times to the prosecutor and in effect to the investigating officer standing behind him, before granting the actor bail.

Equally pointedly, the HC asked the police why they hadn’t arrested the accuser when she was herself named in the second FIR related to the attack on her in Andheri on May 25. Her ex-lawyer Ali Kaashif Khan has alleged she directed the attack on herself to manufacture a case for denial of bail to the actor on the grounds that her safety was in danger. Khan and four others have been held in the attack case.

Karan Oberoi
Several of Karan Oberoi’s friends and people from the entertainment industry came out in support of the actor, in public and in comments posted on social media, triggering a debate on the issue of presumption of guilt.

“You have arrested the lawyer. She is also an accused. What steps have you taken against her? Why have you not arrested her. It is a serious matter,” the HC judge said. “What kind of investigation is this?’’ the judge reprimanded. There was no reply from the investigating officer.

Justice Mohite Dere essentially observed that for a bail hearing, it was enough that once it was prima facie shown that facts alleged were weak, bail could be granted, but she made it clear investigation can certainly go on into the rape FIR.

The upshot of the bail hearing was that the HC needed but a couple of hours to pass an order restoring the man’s liberty —a natural right cannot be taken away even temporarily except by following rule of law. Oberoi by then had spent a month behind bars even as the accuser’s lawyer implicated her in the attack on herself.

The case also again brought to the fore the issue of swift arrest and prosecution in cases where rape had been alleged after a relationship went sour — and of tardy investigation despite the accuser herself being an accused in the second FIR on the so-called attack. Police have not yet summoned her for questioning in the attack case.

Several of Oberoi’s friends and people from the entertainment industry came out in support of the actor, in public and in comments posted on social media, triggering a debate on the issue of presumption of guilt.

2018: The Year When #MeToo Shook India

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2018: The Year Of #MeToo In India

27 Dec, 2018
2018 saw the rise of the #MeToo movement in India. Inspired by a global campaign against sexual harassment and assault, women across the spectrum opened up and shared their stories about abuse by men in positions of power. And it began in October with actress Tanushree Dutta accusing actor Nana Patekar of sexual harassment while shooting for the 2008 film 'Horn Ok Please'.What followed was a series of posts by other women who shared their experiences with the world. From actors, film directors to advertising top guns, artists and writers and politicians, women professionals called out obnoxious behaviour at the workplace. From unwanted attention in the office to sexual innuendos on the film set, there were many kinds of allegations that surfaced.While some of these are still struggling in the industry amidst the allegations, some succeeded in getting a clean chit from authorities. Recently, rumours surfaced that Patekar has been given a clean chit. However, the 'Aashiq Banaya Aapne' actress quashed the rumours. However, director Vikas Bahl, who was one of the prime accusees, has been set free from all charges against him. The internal complaints committee of Reliance Entertainment, today, set the 'Queen' director free, who was accused by an employee of Phantom films under the #MeToo movement.(In Pic: From top left, Nana Patekar, Aditi Mittal, Subhash Ghai, Anirban Das Blah. From bottom left, Alok Nath, Sajid Khan, Jatin Das, Vikas Bahl)

Defence lawyer Tiwari argued in sessions court that her FIR was devoid of specifics. He relied on text messages exchanged between the two — messages Oberoi had submitted to police last October. The messages, Tiwari had argued after reading them in court, bared her allegations as lies. He had urged that police must look at the entirety of the text conversations to get the full picture as he (Oberoi) had never promised marriage, nor had he committed to her, nor used terms of endearments one would use if in a committed relationship.

After Karan’s arrest, Pooja Bedi, who is spearheading a movement in support of the actor, had said, “If a woman’s identity can be guarded when she files a case of rape, why isn’t a man’s identity also guarded until he is proven guilty? Also, I think it’s important to punish a woman if it’s proven that her allegations are fake and baseless.”

She added, “We went to the police and showed them several messages sent by her; they were sent post the date of the alleged incident. In those messages, she is asking for kisses and also telling him that he is not giving her attention. In one of the messages, she also says that it’s a one-sided relationship from her side. The police told us that despite the evidence, they have to arrest him because of the due process of law. She lodged the FIR the day the HC went on holiday, so that he couldn’t even apply for bail. Everything she has done has been a set-up from the beginning.”

She added: “Though we have submitted the proof pertaining to the conversation, which is all recorded, the police had no choice but to act on her FIR, because she filed it and is a woman. No matter how innocent Karan may be, and all the evidence is there to support it, the cops will have to follow due process of law.”

Times View
Equality before law is not a tenet that can be selectively applicable. While the intent may have been to offer greater protection to women in a traditionally patriarchal society, the current manner in which laws are both framed and interpreted on the ground treats half the population as untrustworthy and guilty unless proved innocent. The lawmakers, the police, bodies such as commissions to protect women and the media, all see the immediate takedown of any man accused of a sexual offence as par for the course, and as part of a larger corrective process. There is a very high presumption of guilt against the defendant, not just before a trial commences, but even before a preliminary investigation. When clubbed with the almost zero implication of a charge subsequently proved to be false, this makes the law a handy tool for personal vendetta for those who are inclined to use it that way. There is no denying that women continue to face harassment and sexual violence at unacceptably high levels. It is equally true that the legal and social tools to protect such women are increasingly being used as a tool for implicating and framing men when consenting relationships go sour. To deny any one section of society legal equality and to unfairly arm another section is not how rule of law should work — whether that is on grounds of religion, ethnicity or gender. The law must protect and punish individuals equally.
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