Air India urination case: Accused in more trouble after bizarre U-turn in court, say experts

Legal experts say that the contradictory stance taken in court by former banking executive Shankar Mishra, who allegedly urinated on a woman co-passenger on a New York-Delhi Air India flight on November 26, will only worsen his legal troubles.

They said that it will not only fail to mitigate his situation with respect to the Delhi Police application for his custody but also leaves him liable to be sued by the woman for defamation.

Mishra was arrested from Bengaluru on January 6 and sent to 14-day judicial custody on January 7 by a Delhi magistrate’s court.

His advocate, while arguing his bail plea last Wednesday, January 11, said that the complainant, who is an elderly woman, ‘has not marked him as a lustful man’. In a description of the bizarre incident, the lawyer said that Mishra couldn't control his drink on the flight but the "unzipping incident was not for sexual desire".

On January 11, the Delhi Police challenged the magisterial court’s order of January 7 denying it Mishra’s custody.

On Friday, his lawyer took a new stance. "I did not urinate on complainant. The complainant woman's seat was blocked. It wasn’t possible for him (Mishra) to go there. The woman has a problem of incontinence. She urinated on herself. She is a kathak dancer, 80 per cent of kathak dancers have this issue," the defence lawyer said on his behalf in response to a notice by the sessions court on the application for police custody.

“The accused has already, to a certain extent, confessed his guilt in the entire episode by paying a certain sum of compensation money to the woman soon after the alleged incident took place besides reportedly apologizing to her in a WhatsApp conversation. Further, his counsel did not deny that such an incident took place; they only contended in court that there was no ‘sexual desire’, which was to mount a defence against the criminal sections of the IPC invoked against him like 354 (assault on woman to outrage modesty) and 509 (outraging modesty by word, gesture or act). So, such a line of defence is nothing but bizarre,” said Mahesh Thakur, Advocate-on-Record (AOR) in the Supreme Court.

“Such an argument at this juncture would not impress the court and it is likely to accede to the application for police custody. Further, such a statement made by Mishra against the complainant in court duly carried by the media, leaves him liable to be sued by her under criminal and/or civil defamation laws,” he added.

Reacting to Mishra’s latest claim, the complainant, as per media reports, said it was "completely false and concocted".

"The said allegations are also in complete contradiction and a complete volte-face of the statements and the pleaded case of the accused in his bail application," she was quoted as having said.

Instead of being remorseful for the "utterly disgusting act committed by him, he has adopted a campaign of spreading misinformation and falsities with the intent of further harassing the victim," she reportedly added.

Noted classical dancers including Bharatanatyam dancer Rajni Maharaj and Kathak dancer Mayukh Bhattacharyya have gone on the record to denounce Mishra's contentions, pointing out that if anything, their ilk is in superior physical shape and have far better bladder control than the average person.

Asked if the delay of over a month in lodging of the FIR against Mishra might render the prosecution case against him weak, Thakur said that typically, the Investigation Officer needs to satisfy the court for any such delay, but it shouldn't be a problem in this scenario. “From what I understand, the woman delayed filing a complaint for certain reasons. In any case, as I said, Mishra is already in a tight spot for the reasons I mentioned earlier, so it wouldn’t really matter,” he said.

“Of course, as in any criminal case, the charges would need to be proved beyond any reasonable doubt for the accused to be convicted by the court, and it’s not clear to us at this stage what all the prosecution has in terms of evidence, eye witnesses etc. But the accused is certainly in serious trouble,” said Thakur.

Asked if it would’ve helped if CCTV footage of the incident had been available, Thakur said, “Yes, obviously, but I’m not sure of the technical feasibility of aircraft passenger cabins being under CCTV surveillance. But in view of the increasing incidents of unruly passengers aboard flights, the idea certainly needs to be floated.”

Weighing in on the twists and turns in the case, Delhi-based criminal lawyer Nishant Kumar Shrivastav said the woman could indeed sue Shankar Mishra for defamation. “Once the trial is over and it is proved that the latest allegations were just a figment of imagination on the part of the accused, the lady will be within her rights to sue the accused for defamation. Prima facie it is a defence, if the news about the accused making such a claim is correct, taken by the accused and only the outcome of the trial would prove or disprove the correctness of the same,” he said.

He was circumspect about the suggestion about in-flight CCTV cameras. “I have reservations about it because there ought to be a limit on being under surveillance / under the watch of CCTV camera. If say tomorrow any untoward incidence happens in the lavatory area or inside the lavatory, would it be a sustainable demand to have CCTV installed in the lavatory? Also, the individual's right to privacy is going to be affected. Above all we are talking all this only because the airline did not act immediately and, as far as news coming from the media is taken into account, there is no one coming forward as an eye witness, including the airline staff,” he said.

CS Randhawa, secretary, Federation of Indian Pilots, who earlier served in the DGCA as Deputy Chief Flight Inspector (Western Region), said the idea wasn’t feasible. “Nowhere in the world do aircraft have CCTV cameras in the passenger cabin area. It would be a serious violation of passengers’ privacy. Furthermore, you can’t just rig up such a system onboard an aircraft. The manufacturing companies would need to do it, and even then all kind of certifications would be required. Who will bear the cost?” he said.

Veteran pilot SS Panesar, who was director of flight safety and training with the erstwhile Indian Airlines, however, said the idea was worth exploring if it could help investigating agencies get to the bottom of such incidents.

“There is already a system of keeping a record of serious incidents involving unruly passengers which go all the way to the top executive of an airline, but in this case, everyone was apparently asleep on the job. So yes, we should explore all alternate mechanisms to ensure accountability and justice in the future,” he said.

Mishra was arrested on January 6 after the accusations came to light more than a month after the incident in late November. He had been on the run from authorities for days, and had been sacked by US banking giant Wells Fargo.

He was allegedly drunk during the journey from New York to New Delhi on November 26 when he allegedly unzipped his pants and urinated on the 72-year-old woman seated in business class.

A nationwide outrage followed after the incident came to light with a few more incidents being reported on unruly passengers on flight that caused the Directorate of Civil Aviation to issue show-cause notices.

An FIR was lodged by Delhi Police belatedly, which had reportedly not been filed in the beginning after the accused allegedly requested the aggrieved passenger to not file a complaint as he had a family. Mishra also reportedly got his co-passengers’ belongings cleaned and paid her Rs 15,000 as compensation which the woman returned.

Incidentally, a media report now claims to be in possession of the seating plan in the Boeing B777-300ER Business Class, in which the two were travelling, as per which, it contended, the woman's seat was a window seat, which may not have been easily accessible to the accused, which dovetails with the contentions made by Mishra's lawyer.

However, the same report went on to concede that in Business Class, the chairs have a lot of space around, unlike the Economy Class, and if the aisle seat next to the woman complainant was not reclined or if the person occupying it was missing when the alleged incident happened, the access wouldn't be a issue.

It also can't be ruled out if the passengers exchanged seats midflight, which is not an uncommon phenomenon.

It remains to be seen if and when other passengers and crew members come forward or are summoned to render their version of the alleged incident as eye-witnesses.

The question also remains, say lawyers, that if one assumes Mishra's stance to be correct that the woman urinated on herself due to incontinence issues and that he was too intoxicated to be aware of his own actions, why would she point a finger at him in particular?