Supreme Court Refuses To Stay Investigation Against BJP Leader Kailash Vijayvargiya & 2 Others In Rape Case; Extends Interim Protection

The Supreme Court on Friday refused to grant a stay on the criminal case lodged against BJP Leader Kailash Vijayvargiya, RSS member Jisnu Basu, and Pradeep Joshi for the offence of rape. The Calcutta High Court was further permitted to consider the anticipatory bail applications of the accused persons on merits. 

A Bench comprising Justices M.R Shah and A.S Bopanna further ordered that the interim protection from arrest granted earlier by the High Court must be continued until the next date of hearing before the Apex Court i.e. on November 16. 

The Court was adjudicating upon a Special Leave Petition (SLP) against an order of the Calcutta High Court setting aside the order of the Chief Judicial Magistrate at Alipore which had dismissed an application seeking FIR against against the accused persons.

It had been alleged by the victim woman that Vijayvargiya had called her to his flat after which the accused persons had proceeded to commit rape on her, one after another following which she had been forced to leave the flat in a vegetated condition. She further alleged that the accused persons had also threatened to kill her and her son. 

On the previous date of hearing, the Bench had directed that it would be open for the High Court to consider the anticipatory bail applications on merits or extend the interim protection granted earlier without prejudice to the rights of the concerned parties. On Friday, the Bench noted that despite a clear earlier order, it seems that the High Court is in a 'dilemma'. 

Accordingly, it was clarified, 

"Though our earlier order is very clear and does not require any further clarification, it appears that still the High Court seems to be in dilemma. Still, it is clarified that as per our earlier order, discretion is left to the High Court either to consider the anticipatory bail applications on merits finally or to consider the extension of interim order granted earlier."

During the course of the hearing on Friday, Senior Advocate Paramjit Patwalia appearing for petitioner Jisnu Basu prayed for a stay on the criminal case lodged and thus submitted before the Bench, "I am only saying that further proceedings based on FIR may be stayed. The incident is 2 years old, my liberty is in threat."

To this, Justice Shah orally remarked, "On that day, we refused to grant stay. We cannot grant a stay of the FIR. You're again coming and asking for a stay in the FIR".

The Bench further pointed out that the Supreme Court's ruling in Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra does not permit such a stay order to be issued.

However, the Bench agreed to extend the interim protection granted and accordingly observed, 

"Any order is passed adverse to the petitioners herein, we direct that the interim protection granted earlier by the High Court shall be continued till the next date of hearing before this Court, i.e, 16.11.2021."

Background

As alleged by the victim woman, Vijayvargiya had called her to his flat wherein the bail applicants committed rape on her, one after another, and she was forced to leave the flat in a vegetated condition.

Further, it was alleged that since thereafter, she was physically assaulted on multiple occasions; more precisely, 39 times on diverse dates and places, and ultimately two complaints were lodged, dated December 20, 2019 u/s 341/506(ii)/34 of the Indian Penal Code and u/s 341/323/325/506/34 of the Indian Penal Code, however, no FIR was registered.

Thereafter, an application under Section 156(3) of the Code of Criminal Procedure was filed on November 12, 2020, which was dismissed by the CJM, Alipore. The said order was assailed before the High Court by filing the Criminal Revisional Application. The said criminal revision application was allowed by the HC, setting aside the order of the CJM, Alipore, and the matter was remitted back for reconsideration to the CJM, Alipore.

Finally, on October 8, 2021, and solely on the basis of the directions/orders passed by the High Court, CJM Court had directed the complaint to be treated as FIR.

Click Here To Read/Download The Order