The Supreme Court Thursday set aside an order of a magisterial court in West Bengal for registration of an FIR against BJP National General Secretary Kailash Vijayvargiya and two others for offences including rape and criminal intimidation on a complaint by a woman activist.
A bench comprising Justices M R Shah and Sanjiv Khanna ordered that the Chief Judicial Magistrate at Alipore will apply his “judicial mind” and may direct the state police to conduct an enquiry on the complaint before lodging an FIR.
The top court, in its 63-page judgement, refrained from commenting on the allegations made by the woman party activist against Vijayvargiya and Jisnu Basu, and Pradeep Joshi saying this “may affect the case put up by either side”.
While remanding the case back to the magisterial court for re-adjudication, it said the local court can take cognizance of complaint by following the CRPC provisions and “He (CJM) can also direct the preliminary enquiry by the police in terms of the law laid down by this Court…”.
It said the complainant would be entitled to question the genuineness of the contents of the documents being provided by the BJP leader and others in the case before the CJM.
The complainant, in her plea before the local court, had alleged that she was raped by all the three persons on November 29, 2018 at about 5:00 pm at the residence of Vijayvargiya when she had gone to discuss another case with them.
The case has seen many twists and turns in courts.
The CJM, after hearing the submissions of the complainant, passed a detailed order on November 12, 2020 and dismissed the plea for registration of an FIR leading to filing of an appeal in the Calcutta High Court.
The High Court allowed the plea of the woman and quashed the order of the CJM dismissing the application for registration of FIR.
The BJP leader and two others then appealed to the Supreme Court.
In the meanwhile, the CJM re-heard the plea of the woman and ordered registration of an FIR in the matter.
The top court, in its judgement, took note of the subsequent development and upheld the high court’s judgement of re-adjudication of the complaint.
But the top court set aside the subsequent and second order of the CJM directing the West Bengal Police to lodge an FIR in the case.
The bench took note of the submissions of the BJP leader and others that the complainant has made several allegations of rape, sexual harassment against persons with whom she had been acquainted and working.
Vijayvargiya and others also alleged that in the present complaint, the allegations were levelled after a lapse of almost two years.
The complainant, on the other side, pleaded threat and harassment at the hands of those she has named as perpetrators.
“Every criminal case, it is stated, is a voyage of discovery in which truth is the quest. Right from the inception of the judicial system, it has been accepted that discovery, vindication and establishment of truth are the primary purposes underlying the existence of the courts of justice.
“However, the supremacy of truth is easier to assert than to define. Often this task becomes difficult when contradictory factual positions are asserted duly supported and affirmed on oath,” the apex court said while ordering re-adjudication.
It said in adversarial systems, the process of ascertaining truth requires compliance of procedures and rules of evidence, and limits the role of the adjudicator.
“Abuse of law must be checked, if possible, at the very threshold, albeit when it is possible and also as per the procedure prescribed by law,” it said.
On December 20, 2019, the woman had lodged complaints at Sarsuna police station in Kolkata and Bolpur police station in Birbhum district under IPC sections for alleged assault and criminal intimidation.
She had moved an application before the Chief Judicial Magistrate, Alipore, in Kolkata on November 12, 2020, seeking an investigation into her complaints, but the court had dismissed her prayer for the delay in lodging the complaints about the alleged incident of November 29, 2018, maintaining that the veracity and truthfulness of the allegations are doubtful.
The woman had then moved a criminal revision application before the high court challenging the lower court’s order.
The high court allowed the application, setting aside the order of the CJM, Alipore, and remitted it back for reconsideration. The CJM on October 8, 2021 directed that the complaint be treated as an FIR.
