Supreme Court Issues Notice On Plea Challenging HC Order Which Set Aside Dismissal Of Application Seeking FIR Against BJP Leader Kailash Vijayvargiya & 2 Others In Rape Case

The Supreme Court on Monday issued notice on 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 BJP Leader Kailash Vijayvargiya, RSS member Jisnu Basu, and Pradeep Joshi in a rape case.

In the instant case, 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.  

Senior advocate Mahesh Jethmalani appearing on behalf of one of the petitioners submitted before a Bench comprising Justices M.R Shah and A.S Bopanna that the complainant had allegedly been raped on November 28, 2018 but the criminal complaint had been filed in 2020 after a delay of nearly 2 years. 

The senior counsel further contended that from 2018 to the filing of the complaint in 2020, there had not been even a 'whisper' made regarding allegations of gang rape by the complainant. He also pointed out to the Court that during the interregnum period various other criminal complaints had been lodged against the accused persons however none of them had contained the alleged offence of gang-rape. 

The Bench was also apprised by senior counsel Jethmalani that the Calcutta High Court had vide order dated October 14 had granted anticipatory bail to the accused persons till October 25. Accordingly he prayed for further extension of interim protection. 

The Calcutta High Court on Monday had adjourned the hearing of the anticipatory bail applications of the accused persons till October 27 after being informed that the instant SLP had been filed in the Supreme Court. The High Court had also ordered that the interim protection granted to the petitioners by the High Court on October 14 must continue till November 1 or till some further order is passed whichever is earlier.

Senior Advocate Paramjit Patwalia appearing for petitioner Jisnu Basu also prayed before the Bench for further extension of interim protection after bringing to the attention of the Court that the Calcutta High Court is slated to make a determination regarding the anticipatory bail applications on October 27. 

On the other hand, senior advocate Kapil Sibal appearing for the State of West Bengal submitted before the Bench that he would not be arguing much on the merits of the case and would leave it to the discretion of the Bench. 

Accordingly, the Bench issued notice to the State of West Bengal and listed the matter for further hearing on November 16. The Court further ordered that in addition to the regular service, the complainant must be served by the police officer-in-charge of the concerned police station. 

"In the meantime, it will 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", the Bench further directed. 

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.