4 May 2023 6:09 AM GMT
After almost 17 months since the verdict was reserved, the Supreme Court on Thursday set aside an order by a magistrate in Kolkata directing a police investigation into an allegation of rape and criminal intimidation against BJP national general secretary Kailash Vijayvargiya, RSS member Jisnu Basu and suspended BJP leader Pradeep Joshi. Besides quashing this order, the top court directed...
After almost 17 months since the verdict was reserved, the Supreme Court on Thursday set aside an order by a magistrate in Kolkata directing a police investigation into an allegation of rape and criminal intimidation against BJP national general secretary Kailash Vijayvargiya, RSS member Jisnu Basu and suspended BJP leader Pradeep Joshi. Besides quashing this order, the top court directed the magistrate to consider afresh an application seeking the registration of first information reports (FIR) against the accused.
Disposing of a batch of petitions filed by the accused, the bench pronounced:
"While affirming Calcutta High Court's order to remand the matter to the magistrate, we set aside the subsequent order passed by the magistrate in remand. We remit the matter to the magistrate again to examine and apply judicial mind and exercise discretion on whether to issue directions under S 156(3) or whether he can take cognisance & follow procedure u/ S 202, CrPC. The magistrate can also direct a preliminary inquiry by police in terms of the law laid down in Lalita Kumari. Official papers and docs filed before this court and the high court are to be brought on record of the magistrate. The complainant/information would be entitled to question the genuineness of the contents of said document."
The Court set aside the Magistrate's order which directed the registration of FIR by holding that the said order was passed by the Magistrate merely on the remand made by the High Court, without any independent application of mind.
"We were informed that the Magistrate, on remand, has passed an order under Section 156(3) directing registration of the FIR. He has misread the order and directions given by the High Court. In terms of the judgments of this Court, the Magistrate is required to examine, apply his judicious mind and then exercise discretion whether or not to issue directions under Section 156(3) or whether he should take cognizance and follow the procedure under Section 202", the Court observed.
A bench of Justices MR Shah and Sanjiv Khanna was hearing special leave petitions filed by Vijayvargiya, Basu and Joshi against the decision of the Calcutta High Court to set aside an order of the Chief Judicial Magistrate at Alipore dismissing an application seeking FIR against the accused persons. The apex court bench issued notice in the appeal in October 2021. In the same month, while refusing to stay the criminal case against the accused, the top court permitted the Calcutta High Court to consider their anticipatory bail applications. Initially, the court had granted Vijayvargiya interim protection from arrest till the subsequent date of hearing, but by an order in December 2021, the protection was extended till the disposal of the special leave petitions.
The bench reserved its verdict in December 2021.
Vijayvargiya has been accused by the prosecutrix of calling her to his flat after which the accused allegedly committed rape on her, one after another. She further alleged that the accused had also threatened to kill her and her son. Not only this, the woman has also alleged that she was physically assaulted on multiple occasions after this incident - as many as 39 times - following which, ultimately two complaints were lodged in December 2019. Despite the lodging of the complaints, no FIR was registered.
Since the police refused to register an FIR, an application under Section 156(3) of the Code of Criminal Procedure was filed on November 12, 2020, which was dismissed by the Chief Judicial Magistrate, Alipore. The said order was assailed before the high court by filing a criminal revisional application, which was allowed by the court. The bench set aside the order of the magistrate and the matter was remanded for reconsideration to them. Finally, in October 2021, and solely on the basis of the directions passed by the Calcutta High Court, the magistrate directed the complaint to be treated as FIR. Pursuant to this order, a first information report was registered against the trio under Sections 376D (gang rape), 506(ii) (punishment for criminal intimidation), and 120B (punishment of criminal conspiracy) of the IPC.
Citation : 2023 LiveLaw (SC) 396
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