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, in West Bengal in
November 2018.
A bench of Justices M.R. Shah and Sanjiv Khanna
said: "While affirming the impugned judgment and order passed by the
Calcutta High Court (in November 2020) remanding the matter back to the
magistrate, we set aside the subsequent order passed by the magistrate on
remand, pursuant to the impugned judgment and order passed by the high court
and remit the matter back to the learned magistrate to examine and apply his
judicial mind and then exercise discretion whether or not to issue directions
under Section 156(3) (of the CrPC) or whether he can take cognisance and follow
the procedure under Section 202."
However, the apex court set aside the magistrate's
subsequent order to the police to register an FIR into the matter.
The bench said: "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). Copies of the papers and documents filed
before the high court and this court could also be forwarded and brought on
record of the magistrate, who would thereupon examine and consider the
matter... the complainant/informant would be entitled to question the
genuineness of the contents of the said documents."
"We would refrain and not comment on the allegations
made as this may affect the case put up by either side. The accused do not have
any right to appear before the magistrate before summons are issued. However,
the law gives them a right to appear before the revisionary court in
proceedings, when the complainant challenges the order rejecting an application
under Section 156(3) of the Code."
The bench also directed the magistrate to consider
all materials including documents and emails brought on record by the accused
before the high court, noting that the high court 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. Therefore, the High Court
was correct in remitting the matter to the judicial magistrate for further
examination," it said.
The bench noted that 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. "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," it said.
"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."
Counsel, representing the accused, that complainant
was not a timid victim inasmuch as she was an experienced social/political
worker, had a history of filing FIRs including for rape, had earlier filed FIRs
against the accused in the instant case for other offences and indeed had
invoked police powers against several powerful people.
Counsel, terming the complaint as abuse of process,
alleged that in an FIR filed on August 31, 2018, she had made allegations of
rape against a third person who is a worker of the BJP.