SC orders examining of rape complaint against BJP leader Kailash Vijayvargiya, others

The Supreme Court on Thursday directed a judicial magistrate to re-examine a rape complaint filed by a woman against senior BJP leaders Kailash Vijayvargiya, Pradeep Joshi, and Jishnu Basu on November 29, 2018, in West Bengal.

A bench of Justices M R Shah and Sanjiv Khanna affirmed the Calcutta High Court’s November 12, 2020 order which remanded the matter back to the magistrate.

The top court, however, set aside the magistrate’s subsequent order to the police to register an FIR into the matter.

Also Read | Will examine validity of extrajudicial divorce like 'Talaq-e-Hasan', not go into individual matrimonial disputes: SC

“We remit the matter back to the magistrate to examine and apply his judicial mind and then exercise discretion whether or not to issue directions under Section 156(3) of the Criminal Procedure Code or whether he can take cognisance and follow the procedure under Section 202. He can also direct the preliminary enquiry by the police in terms of the law laid down by this Court in the case of Lalita Kumari (2014),” the bench said.

The bench also directed the magistrate to consider all materials including documents and e-mails brought on record by the accused before the HC, as it noted that the accused do not have any right to appear before the magistrate prior to the issuance of the summons.

Dealing with an appeal filed by Vijayvargiya, the bench said the HC was correct in remitting the matter to the judicial magistrate for further examination.

“We do not intend to go into the question of the merits of the allegations, and what procedure the magistrate should follow as this is an aspect which the magistrate must first consider and decide judiciously and as per the law. What is impermissible and contrary to law is an adjudication on merits of the allegations and determination of the facts as baseless, without further scrutiny and examination,” the bench said.

Counsel for the accused, for their part, highlighted the complainant’s conduct, contending she was not a timid person and an experienced social and political worker of standing. She has been continuously filing FIRs. In an FIR filed on August 31, 2018, she had made allegations of rape against a third person who is a political worker of the BJP, they alleged, terming the complaint as an abuse of the process.

“It is noticeable that the complainant/informant has made several allegations of rape, sexual harassment, etc against persons with whom she had been acquainted and working. She has pleaded threat and harassment at the hands of her perpetrators,” the bench noted.

“While examining the question of delay in making the complaint, the courts must remain alive to the fact that it is difficult for a woman to come forward and make a statement alleging rape or sexual assault,” the bench added.