# KAILASH VIJAYVARGIYA v. RAJLAKSHMI CHAUDHURI AND OTHERS

- **Citation:** [2023] 6 S.C.R. 135
- **Court:** Supreme Court of India
- **Decided:** 2023-05-04
- **Case number:** Criminal Appeal No. 1581 of 2021
- **Bench:** M. R. Shah, Sanjiv Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kailash-vijayvargiya-v-rajlakshmi-chaudhuri-and-others-37157
- **Pages:** 40

## Headnote

Code of Criminal Procedure, 1973 :
s. 156(3) - Police officer's power to investigate cognizable
case - Application u/s. 156(3) by the victim-complainant alleging
rape by the appellants; and sought direction to police to investigate
the matter treating the complaint as an FIR - Prior to filing of the
said application, the victim filed several complaints before the police
authorities, who conducted an enquiry and found that there was
delay of two years in filing the complaint and refused to register the
same - Dismissal of the application u/s. 156(3) by the Magistrate -
Revision application thereagainst, allowed by the High Court, setting
aside the order of the Magistrate holding that the Magistrate at
that stage could not verify the veracity of allegations - Issuance of
direction to the Magistrate to re-consider the application u/s. 156(3)
- On remand, the Magistrate passed an order u/s. 156(3) directing
registration of the FIR - On appeal, held: It is impermissible and
contrary to law to adjudicate on merits the allegations and determine
the facts as baseless, without further scrutiny and examination -
Thus, the High Court was correct in remitting the matter to the
Magistrate for further examination - Magistrate, while passing a
subsequent order u/s. 156(3) directing registration of the FIR, misread
the order and directions given by the High Court - Magistrate was
required to examine, apply his judicious mind and then exercise
discretion whether or not to issue directions u/s. 156(3) or whether
he should take cognizance and follow the procedure u/s. 202 - He
could also direct a preliminary inquiry by the Police - In view thereof,
the order passed by the High Court remanding the matter back to
the Magistrate is upheld - The subsequent order passed by the
Magistrate on remand, directing registration of FIR is remitted back
to the Magistrate to apply his judicial mind and exercise the
discretion u/s. 156(3) or to take cognizance u/s. 202 of the Code.
[2023] 6 S.C.R. 135
135
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ss. 156 (3) and 202 - Power of the Magistrate to direct
investigation at pre-cognizance u/s. 156(3) and post-cognizance
stages u/ss. 200-210 - Distinction between - Held: Power u/s.156(3)
is to be exercised before the Magistrate takes cognizance u/s. 190
- Once the Magistrate takes cognizance, the Magistrate has
discretion to take recourse to his powers u/s. 202 - Magistrate
exercises a very limited power u/s.156(3) whereas, u/s. 202, the
Magistrate can analyse the veracity of the complaint made and
appreciate whether there are grounds to proceed further.
Disposing of the appeals, the Court
HELD: 1.1 The invocation of power under Section 156(3)
CrPC is wider as held in Priyanka Srivastava's case , yet there
are limits within which the Magistrate must act. When the
Magistrate is satisfied that the allegations made disclose
commission of a cognizable offence, he must stay his hands, direct
registration of an FIR and leave it to the investigative agency to
unearth the facts and ascertain the truth of the allegations. The
Magistrate in terms of the ratio in Lalita Kumari's case can for
good reasons direct preliminary enquiry. [Para 22][164-F-H]
1.2. The operandi for registration of information in a
cognizable offence and eventual investigation is not limited to
Police, and sub-section (3) to Section 156, subject to legal
stipulations, gives the ameliorating power to a Magistrate
empowered under Section 190 to order an investigation in a
cognizable offence. Two different powers vested with two distinct
authorities, namely the Police and the Magistrate, who discharge
distinct functions and roles under the Code as indicated above
are not entirely imbricating. The power of Magistrate to direct
investigation falls under two limbs of the Code: one is precognizance stage under Section 156(3), and another on cognizance
under Chapter XIV ('Conditions Requisite for Initiation of
Proceedings'; Sections 190-199) read

## Text

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KAILASH VIJAYVARGIYA
v.
RAJLAKSHMI CHAUDHURI AND OTHERS
(Criminal Appeal No. 1581 of 2021 Etc.)
MAY 04, 2023
[M. R. SHAH AND SANJIV KHANNA, JJ.]
Code of Criminal Procedure, 1973 :
s. 156(3) - Police officer's power to investigate cognizable
case - Application u/s. 156(3) by the victim-complainant alleging
rape by the appellants; and sought direction to police to investigate
the matter treating the complaint as an FIR - Prior to filing of the
said application, the victim filed several complaints before the police
authorities, who conducted an enquiry and found that there was
delay of two years in filing the complaint and refused to register the
same - Dismissal of the application u/s. 156(3) by the Magistrate -
Revision application thereagainst, allowed by the High Court, setting
aside the order of the Magistrate holding that the Magistrate at
that stage could not verify the veracity of allegations - Issuance of
direction to the Magistrate to re-consider the application u/s. 156(3)
- On remand, the Magistrate passed an order u/s. 156(3) directing
registration of the FIR - On appeal, held: It is impermissible and
contrary to law to adjudicate on merits the allegations and determine
the facts as baseless, without further scrutiny and examination -
Thus, the High Court was correct in remitting the matter to the
Magistrate for further examination - Magistrate, while passing a
subsequent order u/s. 156(3) directing registration of the FIR, misread
the order and directions given by the High Court - Magistrate was
required to examine, apply his judicious mind and then exercise
discretion whether or not to issue directions u/s. 156(3) or whether
he should take cognizance and follow the procedure u/s. 202 - He
could also direct a preliminary inquiry by the Police - In view thereof,
the order passed by the High Court remanding the matter back to
the Magistrate is upheld - The subsequent order passed by the
Magistrate on remand, directing registration of FIR is remitted back
to the Magistrate to apply his judicial mind and exercise the
discretion u/s. 156(3) or to take cognizance u/s. 202 of the Code.
[2023] 6 S.C.R. 135
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ss. 156 (3) and 202 - Power of the Magistrate to direct
investigation at pre-cognizance u/s. 156(3) and post-cognizance
stages u/ss. 200-210 - Distinction between - Held: Power u/s.156(3)
is to be exercised before the Magistrate takes cognizance u/s. 190
- Once the Magistrate takes cognizance, the Magistrate has
discretion to take recourse to his powers u/s. 202 - Magistrate
exercises a very limited power u/s.156(3) whereas, u/s. 202, the
Magistrate can analyse the veracity of the complaint made and
appreciate whether there are grounds to proceed further.
Disposing of the appeals, the Court
HELD: 1.1 The invocation of power under Section 156(3)
CrPC is wider as held in Priyanka Srivastava's case , yet there
are limits within which the Magistrate must act. When the
Magistrate is satisfied that the allegations made disclose
commission of a cognizable offence, he must stay his hands, direct
registration of an FIR and leave it to the investigative agency to
unearth the facts and ascertain the truth of the allegations. The
Magistrate in terms of the ratio in Lalita Kumari's case can for
good reasons direct preliminary enquiry. [Para 22][164-F-H]
1.2. The operandi for registration of information in a
cognizable offence and eventual investigation is not limited to
Police, and sub-section (3) to Section 156, subject to legal
stipulations, gives the ameliorating power to a Magistrate
empowered under Section 190 to order an investigation in a
cognizable offence. Two different powers vested with two distinct
authorities, namely the Police and the Magistrate, who discharge
distinct functions and roles under the Code as indicated above
are not entirely imbricating. The power of Magistrate to direct
investigation falls under two limbs of the Code: one is precognizance stage under Section 156(3), and another on cognizance
under Chapter XIV ('Conditions Requisite for Initiation of
Proceedings'; Sections 190-199) read with Chapter XV
('Complaints to Magistrates'; Sections 200-210). These two
powers are different and there also lies a procedural distinction
between the two. [Para 23, 24][165-B-D]
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1.3. The direction for registration of an FIR should not be
issued in a routine manner. The Magistrate is required to apply
his mind and exercise his discretion in a judicious manner. If the
Magistrate finds that the allegations made before him disclose
commission of a cognizable offence, he can forward the complaint
to the Police for investigation under Section 156 and thereby
save valuable time of the Magistrate from being wasted in inquiry
as it is primarily the duty of the Police to investigate. However,
the Magistrate also has the power to take cognizance and take
recourse to procedure under Section 202 of the Code and
postpone the issue of process where the Magistrate is yet to
determine existence of sufficient ground to proceed. In a third
category of cases, the Court may not take cognizance or direct
registration of an FIR, but direct preliminary inquiry in terms of
the dictum in Lalita Kumari's case. [Para 27][167-D-F]
1.4 In the instant case, the preliminary inquiries conclude
that in the communications made to the police between 2018 to
2020, there is no allegation that rape took place on 29th November
2018. As per the report the complainant had failed to give any
logical and satisfactory account for the delay in lodging the
complaint. The accused assert that the complaint is an abuse of
the process of law and has been filed to put pressure on the
accused in view of the rape case filed by her against the third
person. At the same time, 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. The complainant/informant has pleaded threat and
harassment at the hands of the persons named as perpetrators,
who are people of influence and power as the ground and reason
for delay. She pleads that period of limitation prescribed in section
468 of the Code does not apply to an offence punishable with
imprisonment exceeding three years. 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. [Paras 33
and 34][171-B-F]
KAILASH VIJAYVARGIYA v. RAJLAKSHMI CHAUDHURI
AND OTHERS
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1.5 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. In adversarial systems, the
process of ascertaining truth requires compliance of procedures
and rules of evidence, and limit the role of the adjudicator, in
acting as an investigator to verify veracity of the allegations and
counter-allegations till evidence and material is laid and examined
as per codified procedural law. Yet it is believed that clash of
adversaries is best calculated to getting out the facts. In a welldesigned system, judicial findings of formal legal truth should
coincide with the substantive truth. This can happen when the
facts as asserted by the contestants are skilfully explored in
accordance with the procedure prescribed by law. 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. [Para
35][171-F-H; 172-A-B]
1.6. When a complaint is presented before a Magistrate,
he has two options. One is to pass an order contemplated by
Section 156(3). The second one is to direct examination of the
complainant on oath and the witness present, and proceed further
in the manner provided by Section 202. An order under Section
156(3) is in the nature of a peremptory reminder or intimation to
the police to exercise its plenary power of investigation under
Section 156(1). However, once the Magistrate has taken
cognizance under Section 190 of the Code, he cannot ask for an
investigation by the Police. After cognizance has been taken, if
the Magistrate wants any investigation, it will be under Section
202, whose purpose is to ascertain whether there is prima facie
case against the person accused of the offence and to prevent
issue of process in a false or vexatious complaint intended to
harass the person named. Such examination is provided,
therefore, to find out whether there is or not sufficient ground
for proceeding further. [Para 36][173-B-D]
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1.7 The question of the merits of the allegations, and what
procedure the Magistrate should follow is not gone into 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. [Para 37][173-E-F]
1.8 The Magistrate, on remand, has passed an order under
Section 156(3) directing registration of the FIR. He has misread
the order and directions given by the High Court. The Magistrate
is required to examine, apply his judicious mind and then exercise
discretion whether or not to issue directions under Section 156(3)
or whether he should take cognizance and follow the procedure
under Section 202. He can also direct a preliminary inquiry by
the Police in terms of the law laid down by this Court in Lalita
Kumari's case. [Para 38][173-G]
1.9 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 appellants, therefore, had
appeared before the High Court and contested the proceedings.
They have filed several papers and documents before the High
Court and this Court. To be fair to them, the copies of the papers
and documents filed before the High Court and this Court would
also be forwarded and kept on record of the Magistrate who would,
thereupon, examine and consider the matter. However, the
complainant/informant would be entitled to question the
genuineness and the contents of the said documents. [Para
39][174-A-C]
1.10. In view thereof, while affirming the impugned judgment
and order passed by the High Court remanding the matter back
to the Magistrate, the subsequent order passed by the Magistrate
on remand, pursuant to the impugned judgment and order passed
by the High Court is set aside and the matter is remitted back to
KAILASH VIJAYVARGIYA v. RAJLAKSHMI CHAUDHURI
AND OTHERS
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the Magistrate to examine and apply his judicial mind and then
exercise discretion whether or not to issue directions under
section 156(3) or whether he can take cognizance 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. [Para 40][174-D-E]
Lalita Kumari v. Government of Uttar Pradesh and
Others (2014) 2 SCC 1 : [2013] 14 SCR 713 - followed.
Priyanka Srivastava v. State of Uttar Pradesh (2015) 6
SCC 287 : [2015] 4 SCR 108 - relied on.
Mukul Roy v. The State of West Bengal 2018 SCC
Online Cal. 4861; Maksud Saiyed v. State of Gujarat
(2008) 5 SCC 668 : [2007] 9 SCR 1113; Anil Kumar v.
M.K. Aiyappa (2013) 10 SCC 705 : [2013] 9 SCR 869;
Ramdev Food Products Private Limited v. State of
Gujarat (2015) 6 SCC 439 : [2015] 5 SCR 283; Suresh
Kankra v. State of U.P. & Another (Criminal Appeal
No. 52/2022, decided on 07.01.2022); Srinivas
Gundluri and Others v. SEPCO Electric Power
Construction Corporation (2010) 8 SCC 206; Anju
Chaudhary v. State of U.P. (2013) 6 SCC 384 : [2012]
13 SCR 901; Assistant Collector of Customs, Bombay
v. L.R. Melwani AIR 1970 SC 962 : [1969] SCR 438;
Krishna Lal Chawla v. State of Uttar Pradesh (2021) 5
SCC 435; Abhinandan Jha v. Dinesh Mishra AIR 1968
SC 117 : [1967] SCR 668; State of Haryana and Others
v. Bhajan Lal and Others, (1992) 1 Supp SCC 335 :
[1990] 3 Suppl. SCR 259; Mohd. Yusuf v. Afaq Jahan
(Smt) and Another (2006) 1 SCC 627 : [2006] 1 SCR
1; HDFC Securities Ltd. v. State of Maharashtra (2017)
1 SCC 640 : [2016] 8 SCR 968; Chandra Deo Singh v.
Prokash Chandra Bose Alias Chabi Bose and Another
AIR 1963 SC 1430 : [1964] SCR 639; Jasraj Inder
Singh v. Hemraj Multanchand (1977) 2 SCC 155 :
[1977] 2 SCR 973; Gopal Das Sindhi and Others v.
State of Assam and Another AIR 1961 SC 986; Suresh
Chand Jain v. State of M.P. and Another (2001) 2 SCC
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628 : [2001] 1 SCR 257; Mona Panwar v. High Court
of Judicature of Allahabad through its Registrar and
Others (2011) 3 SCC 496 : [2011] 2 SCR 413 - referred
to.
Case Law Reference
[2007] 9 SCR 1113
referred to
Para 3.6
[2013] 9 SCR 869
referred to
Para 3.6
[2015] 5 SCR 283
referred to
Para 3.6
[2012] 13 SCR 901
referred to
Para 4.2
[1969] SCR 438
referred to
Para 5.7
(2021) 5 SCC 435
referred to
Para 7
[1967] SCR 668
referred to
Para 18
[1990] 3 Suppl. SCR 259
referred to
Para 21
[2013] 14 SCR 713
followed
Para 22, 27, 38
[2015] 4 SCR 108
relied on.
Para 22, 27
[2006] 1 SCR 1
referred to
Para 29
[2016] 8 SCR 968
referred to
Para 31
[1964] SCR 639
referred to
Para 32
[1977] 2 SCR 973
referred to
Para 35
[2001] 1 SCR 257
referred to
Para 36
[2011] 2 SCR 413
referred to
Para 36
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1581 of 2021.
From the Judgment and Order dated 01.10.2021 of the High Court
at Calcutta in CRR No. 92 of 2021.
With
Criminal Appeal Nos. 1582 and 1583 of 2021.
Mahesh Jethmalani, Maninder Singh, P. S. Patwalia, Sr. Advs.,
Kabir Shankar Bose, Amit Mishra, Amit Tiwari, Kanika Singhal,
Ms. Mughda Pandey, Surjendu Sankar Das, Ms. Annie Mittal,
Ms. Swarupama Chaturvedi, Ms. Kanika Singhal, Dheeraj Trivedi, Debu
KAILASH VIJAYVARGIYA v. RAJLAKSHMI CHAUDHURI
AND OTHERS
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Chowdhury, Arvind Gupta, Ms. Saumya Kapoor, Siddhant Yadav,
Nachiketa Joshi, Amit Tiwai, Santosh Kumar, Praneet Pranav, Vedansh
Anand, Ayush Anand, Advs. for the Appellant.
R. Basant, Bikash Ranjan Bhattacharya, Sr. Advs., Suhaan
Mukerji, Vishal Prasad, Akshay Sahay, Sayandeep Paharii, M/s. Plr
Chambers and Co., Rauf Rahim, Ali Asghar Rahim, Arvind C., Advs.
for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 01.10.2021 passed by the High Court of Calcutta in
Criminal Revision Application No. 92/2021, by which the High Court
has allowed the said revision application preferred by respondent no.1
herein - original complainant (victim) and has quashed and set aside
order dated 12.11.2020 passed by the learned Chief Judicial Magistrate,
Alipore (for short, 'learned CJM') rejecting the petition filed by respondent
no.1 herein - original complainant under Section 156(3) of the Code of
Criminal Procedure,1973 (Code/Cr.PC) original respondent nos. 2 to 4
(alleged accused) have preferred the present appeals.
2. The facts leading the present appeals in a nutshell are as under:
That respondent no.1 herein - original complainant lodged a
complaint under Section 156(3) Cr.P.C. in the Court of learned CJM,
making allegations against the appellants herein alleging that she was
raped by all the three appellants on 29.11.2018 at about 5:00 p.m. at the
residence of original accused no.3 - Kailash Vijayvargiya, when she
was invited to discuss another Crime No. 1 of 2018 registered against
their colleagues filed by her. That it was prayed to direct the Officer in
Charge of Bhowanipore Police Station to start investigation into the matter
after treating the complaint as an FIR.
2.1 It was the case on behalf of the complainant in the complaint
before the learned CJM that she was a member of the State Committee
of the Bhartiya Janata Party in the State of West Bengal. As a person
involved in active politics, she has acquaintance with the leaders of the
State at national level. On the allegation of rape, she filed a written
complaint before the Officer in Charge, Behala (Woman) Police Station
against one Amalendu Chattopadhyay. The said complaint was registered
as Case No. 01/2018 dated 31/08/2018 under Sections 417/376/406/313/
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120B IPC. The investigation of the said case resulted in filing of the
charge sheet against the above-named Amalendu Chattopadhyay. It was
further alleged that since the filing of the charge sheet, she was
pressurised by the appellants, namely, Pradeep Joshi, Jishnu Basu and
Kailash Vijayvargiya, national level leaders of the said party to withdraw
the case against Amalendu Chattopadhyay. On the pretext of having a
discussion over the said matter, the appellants asked her to come at the
residential apartment of accused - Kailash Vijayvargiya. It was further
alleged in the complaint that she tried to inform the matter to the Officer
in Charge of the Bhowanipore Police Station but the police suggested
her to meet them in response to such call.
That she went to the residential apartment of the accused - Kailash
Vijayvargiya on 29.11.2018 at about 5:00 p.m. The other accused were
present in the said apartment from before. It was further alleged that
the appellants committed rape upon her against her will one by one.
Therefore, it was alleged that she became the victim of libido of the
leaders of the said political party occupying position at national level. It
was further alleged in the complaint that after the incident she was
threatened with dire consequences. She was threatened by the appellants
that in the event she takes any legal steps against them, her son would
also be killed. It was further alleged that subsequently also she was
subjected to physical assault and mental torture and she lodged complaints
against the accused before different police stations, such as, Sarsuna
P.S. Case No. 131/2019 under Sections 341/506(ii)/34 IPC and Bolpur
P.S. Case No. 89/2020 under Sections 341/323/325/506/34 IPC. It was
further alleged and so stated in the complaint that over the incident dated
29.11.2018, she tried to make the complaint with the local police station
but police refused to accept such complaint from her. She also informed
the matter to the higher authorities of the police but they also failed to
take any action against the accused by registering an FIR. It appears
that the respondent informed the Officer in Charge of Behala Police
Station on 14.08.2020 about the alleged rape by the accused persons
allegedly on 9.8.2018.
2.2 She filed a complaint before the DCP (South Division), 34,
Park Street, Kolkata on 5.10.2020. According to her, she filed a written
complaint before the concerned police station, i.e., P.S. Bhowanipore on
27.10.2020. She filed another complaint to the Deputy Commissioner of
Police on 04.11.2020. According to the complainant, despite the aforesaid
KAILASH VIJAYVARGIYA v. RAJLAKSHMI CHAUDHURI
AND OTHERS [M. R. SHAH, J.]
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complaints to the various authorities making specific allegations against
the accused persons having committed a rape upon her on 29.11.2018,
FIR has not been lodged and no investigation has been carried out and
therefore she filed an application in the Court of the learned CJM, Alipore
under Section 156(3) Cr.P.C. on 12.11.2020 and requested to direct the
concerned police officer to register an FIR and investigate into the matter.
2.3 That the learned CJM, by a detailed order dated 12.11.2020
and after giving cogent reasons, dismissed the said application under
Section 156(3) Cr.P.C.
2.4 Feeling aggrieved and dissatisfied with the order passed by
the learned CJM, dismissing the application under Section 156(3) Cr.P.C.
filed by the complainant, the complainant preferred Revision Application
before the High Court being Criminal Revision Application No. 92/2021.
By the impugned judgment and order, the High Court has allowed the
said revision application and has quashed and set aside order dated
12.11.2020 passed by the learned CJM, dismissing the application under
Section 156(3) Cr.P.C., mainly relying upon the decision of this Court in
the case of Lalita Kumari v. Government of Uttar Pradesh and others,
reported in (2014) 2 SCC 1 and holding that as held by this Court in the
case of Lalita Kumari (supra), the police authority in case of preliminary
inquiry prior to the registration of a case concerning cognizable offence,
has no jurisdiction to verify the veracity of the allegations and therefore
a Magistrate cannot verify the truth and veracity of the allegations
contained in the application under Section 156(3) Cr.P.C. and therefore
the learned CJM acted contrary to the law laid down by this Court in the
case of Lalita Kumari (supra), while entering into the truth and veracity
of the allegations. It has been further held that the learned CJM ought
not to have dismissed the application under Section 156(3) Cr.P.C. on
the ground that there was a delay of two years in lodging the complaint,
which aspect can be considered only at the time of trial.
2.5 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court, quashing and setting aside the order
passed by the learned CJM dated 12.11.2020 dismissing the application
under Section 156(3) Cr.P.C. and remanding the matter to the learned
CJM to reconsider the application filed by the complainant under Section
156(3) Cr.P.C. in light of the observations made in the impugned judgment
and order and pass a reasoned order, the original respondents - alleged
accused have preferred the present appeals.
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3. S/Shri Mahesh Jethmalani, Maninder Singh and P.S. Patwalia,
learned Senior Advocates have appeared on behalf of the respective
appellants. Shri R. Basant, learned Senior Advocate has appeared on
behalf of the State of West Bengal and Shri Bikash Ranjan Bhattacharya,
learned Senior Advocate has appeared on behalf of the original
complainant.
3.1 Learned Senior Advocate Shri Mahesh Jethmalani appearing
on behalf of one of the appellants-accused has vehemently submitted
that in the facts and circumstances of the case, the High Court has
committed a grave error in quashing and setting aside the well-reasoned
order passed by the learned CJM dismissing the complaint under Section
156(3) Cr.P.C.
3.2 It is submitted that the High Court ought to have appreciated
that the learned CJM dismissed the application under section 156(3)
Cr.P.C. upon verifying the truth and veracity of the allegations made in
the application, more particularly considering the fact that there was a
delay of almost two years after the date of the alleged incident which
has not been explained. It is submitted that therefore the learned CJM
was well within its jurisdiction to verify the truth and veracity of the
allegations made in the application when such serious allegations were
made after a period of almost two years after the date of the alleged
incident and that in between though number of other complaints were
filed against the accused and others, at no point of time, any allegation of
rape on 29.11.2018 was made.
3.3 It is submitted that while passing the impugned judgment and
order and quashing and setting aside the order passed by the learned
CJM, the High Court has wrongly relied upon and/or considered and/or
applied the decision of this Court in the case of Lalita Kumari (supra).
3.4 It is submitted that the High Court has materially erred in
observing that while considering the application under Section 156(3)
Cr.P.C., Magistrate has no jurisdiction at all to verify the truth and veracity
of the allegations.
3.5 It is submitted that the observations made by the High Court
in the impugned judgment and order that while considering the application
under Section 156(3) Cr.P.C., Magistrate has no jurisdiction to even prima
facie verify the truth and veracity of the allegations made in the application
are just contrary to the law laid down by this Court in the case of Priyanka
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Srivastava v. State of Uttar Pradesh, reported in (2015) 6 SCC 287.
It is submitted that the same is also contrary to the decision of the coordinate Bench of the Calcutta High Court in the case of Mukul Roy v.
The State of West Bengal, 2018 SCC Online Cal. 4861, expressly
following the judgment in Priyanka Srivastava (supra).
3.6 Learned Senior Advocate appearing on behalf of the appellants
have also heavily relied upon the decisions of this Court in the cases of
Maksud Saiyed v. State of Gujarat, reported in (2008) 5 SCC 668;
Anil Kumar v. M.K. Aiyappa, reported in (2013) 10 SCC 705; and
Ramdev Food Products Private Limited v. State of Gujarat, reported
in (2015) 6 SCC 439 and decision of this Court in the case of Suresh
Kankra v. State of U.P. & another (Criminal Appeal No. 52/2022,
decided on 07.01.2022), in support of their submission that the
Magistrate was well within its jurisdiction to verify the truth and veracity
of the allegations made in the application, more particularly when such a
serious allegation of rape was made after a period of two years after the
date of the alleged incident.
3.7 It is further submitted that the learned Single Judge of the
High Court is not right and/or justified in taking a contrary view than the
view taken by the co-ordinate Bench in the case of Mukul Roy (supra).
It is submitted that if the learned Single Judge of the High Court was of
the opinion that the view taken in the case of Mukul Roy (supra) is not
a correct law, in that case, propriety demands that the learned Single
Judge ought to have referred the matter to the larger Bench, rather than
taking a contrary view.
3.8 It is submitted that even otherwise the learned Single Judge
ought to have appreciated that the decision of the High Court in the case
of Mukul Roy (supra) was expressly following the judgment of this
Hon'ble Court in the case of Priyanka Srivastava (supra). It is
submitted that therefore also, the learned Single Judge ought not to have
taken a contrary view.
3.9 It is further submitted by the learned Senior Advocates
appearing on behalf of the appellants that in the present case even the
SHO after receiving the complaint in the month of October, 2020 conducted
a preliminary enquiry as per the law laid down by this Court in the case
of Lalita Kumari (supra) and thereafter refused to register the FIR.
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3.10 Learned Senior Advocates appearing on behalf of the
respective appellants have taken us to the number of emails and messages
sent to one of the appellants - Kailash Vijayvargiya from 30.11.2018,
i.e., the next day after the alleged incident up till March, 2020. It is
submitted that if he had committed the rape on 29.11.2018, as alleged, in
that case, subsequently there was no reason for her to send emails and
messages to the appellant - Kailash Vijayvargiya.
3.11 It is further submitted that in between 29.11.2018 and October,
2020, the complainant filed various complaints before various police
stations against the very accused. The first complaint was filed on
12.12.2019 (Sarsuna case). The said complaint categorically mentions
that she met the appellant, however, complaint does not make any mention
of the alleged incident of rape. It is submitted that in the said FIR, the
only allegations were that she was called by the top-level leaders for 4
times in the last year, November 2018 and each time they locked her for
4 to 5 hours and pressurised her to withdraw the case. It is submitted
that the said FIR was registered as FIR No. 131/2019. It is submitted
that the said case has been closed now, as a closure report dated
16.06.2020 was filed in the aforesaid case.
3.12 It is submitted that thereafter one another complaint dated
6.2.2020 was filed, however, there was no mention of any particular
date of the alleged rape incident. It is submitted that thereafter one another
complaint was filed on 12.03.2020 wherein she did not mention about
the alleged rape incident at all. It is submitted that after a period of two
years of alleged incident of rape, the complainant filed a complaint dated
27.10.2020 in which for the first time she stated that in order to pressurise
her to withdraw the 2018 case against Amalendu Chattopadhyay, the
appellants called her at the apartment of appellant no.1 - Kailash
Vijayvargiya and raped her on 29.11.2018. It is submitted that therefore
the learned CJM rightly observed that as there was an unexplained and
inordinate delay of two years in making the complaint against the alleged
offence, it casts doubt regarding the truth and veracity of the allegations
contained in the application under Section 156(3) Cr.P.C.
3.13 It is further submitted by the learned Senior Advocates
appearing for the respective appellants that while passing order dated
12.11.2020, the learned CJM made some pertinent observations to
highlight that there was an inordinate delay in making the first police
complaint against the alleged offence and that there existed sufficient
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inconsistencies to raise doubts regarding the truth and veracity of the
allegations contained in the application under Section 156(3). It is submitted
that firstly, the learned CJM observed that according to the complainant
the alleged offence took place on 29.11.2018, however, attempt to initiate
criminal proceedings was made for the first time only on 27.10.2020 -
the date when a complaint was lodged at the Bhowanipore Police Station.
This was after a gap of about two years from the date of the alleged
offence.
3.14 It is submitted that thereafter the learned CJM further noted
that the complainant in her application under Section 156(3) has stated
that she made several complaints before various police stations against
the accused persons and their men for the physical attacks carried out
on her, however, no such complaint finds mention of the alleged offence
of rape. Therefore, the learned CJM noted that possibility of false
implication cannot be ruled out, especially when the same complainant
made several other complaints against the same accused in that period
in which no allegation of rape on 29.11.2018 was made.
3.15 It is further submitted that the learned CJM also further
observed that the complainant in her complaint to Behala Police Station
dated 14.08.2020 had accused one of the appellants - Kailash
Vijayvargiya of raping her at Hotel Peerless Inn on 09.08.2018, however,
the learned CJM did not find any mention of such incident in her application
under Section 156(3) Cr.P.C.. The learned CJM further observed that
Behala Police Station Case No. 01/2018 against Amalendu Chattopadhyay
and others was filed on 31.08.2018, that was much after the alleged
rape by Kailash Vijayvargiya at Hotel Peerless Inn, however, even that
complaint made to the Behala Police Station finds no mention of such
incident. Therefore, considering the unexplained delay of about two years
in making the complaint along with several inconsistencies in the
allegations, the learned CJM concluded that allegations appear to be
unbelievable and therefore rightly rejected Section 156(3) application of
the complainant.
3.16 It is further submitted by the learned Senior Advocates
appearing on behalf of the appellants that in the instant case, the learned
CJM found the explanation for delay by the complainant wholly
unsatisfactory. It is submitted that it is no doubt true that delay is not
always fatal in the case of rape, particularly if adequately explained,
however, there must be at least some credibility in the explanation for
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delay. It is submitted that in the first information report for rape, a delay
of almost 2 years after the date of the alleged incident is a factor that of
necessity would itself put any judicial mind on guard regarding the veracity
of the complainant's allegations. It is submitted that the learned CJM
however did not dismiss the application under Section 156(3) Cr.P.C.
solely on the ground of delay, but examined her conduct since the date
of the alleged rape till the filing of Section 156(3) application and found
that her conduct contradicted her explanation for delay. That she 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. It is
submitted that therefore complainant is not a person who could be easily
intimidated or silenced into inaction for an act of rape committed on her.
It is submitted that therefore the learned CJM committed no error in
dismissing the application under Section 156(3) which ought not to have
set aside by the High Court on wrong application of law holding that at
the stage of considering the application under Section 156(3) Cr.P.C.,
the Magistrate has no jurisdiction at all to consider the truth and veracity
of the allegations in the complaint/application. It is submitted that the
High Court has wrongly applied the ratio in Lalita Kumari (supra),
which lays down the guidelines for the police and the investigating officer
and not applicable to a Magistrate exercising the jurisdiction under Section
156(3) Cr.P.C.
3.17 It is submitted that the High Court has observed that as held
by this Court in the case of Lalita Kumari (supra), when the police
officer at the stage of registering the FIR has no jurisdiction to verify the
veracity and truth of the allegations, how a Magistrate in exercise of
powers under Section 156(3) can verify the veracity of the allegations in
the complaint. It is submitted that the directions issued by this Court in
the case of Lalita Kumari (supra) shall be confined to the police and
shall not be applicable to a Magistrate exercising the jurisdiction under
Section 156(3) Cr.P.C.
3.18 It is further submitted that even the subsequent conduct on
the part of the complainant creates serious doubts about her credibility.
It is submitted that the complainant having realised the serious doubt
that her delayed complaint casts upon the veracity of her allegations
completely, before this Court in the counter affidavit, she has stated on
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oath and has come out with a case now that she had in fact lodged a
complaint with the police against the alleged rape incident on 29.11.2018
by lodging complaint on the very next day at 11:00 a.m.at the Behala
Police Station. It is submitted that that was not her case even in the
application under Section 156(3) and/or even in the complaints before
the concerned police officers. It is submitted that even the learned Senior
Advocate for the State of West Bengal has informed the Court that
there was no such record of the complaint being filed. It is submitted
that thus the complainant has made a false statement before this Court
on oath only to get out of delay and to get out the fact that till October,
2020, no complaint was given by her in respect of the alleged incident of
rape on 29.11.2018.
3.19 Making above submissions, it is submitted that the present
case is a glaring example of abuse of process and abuse of law. It is
submitted that accusation of rape is prima facie false and manufactured
with an intent to extort or blackmail the accused on the pretext of these
false allegations. It is submitted that such a serious allegation of rape
after a period of about two years from the date of alleged incident have
been made to tarnish the image of the appellants and to take a political
revenge and to finish the political career of the appellants. Therefore, it
is prayed to allow the present appeals and quash and set aside the
impugned judgment and order passed by the High Court. It is submitted
that during the pendency of the present proceedings, despite the fact
that the present appeals were pending before this Court, the learned
CJM has passed an order dated 08.10.2021 directing the Officer in
Charge of Bhowanipore Police Station for treating the application as an
FIR and pursuant to the order of the learned CJM, FIR No. 221/2021
has been registered against the appellants. It is submitted that the said
FIR is lodged consequent to the impugned judgment and order passed
by the High Court. It is submitted that therefore if the impugned judgment
and order passed by the High Court is set aside, in that case, all subsequent
consequential orders and subsequent registration of the FIR also deserve
to be quashed and set aside.
4. Shri R. Basant, learned Senior Advocate appearing on behalf
of the State of West Bengal has vehemently submitted that the
Magistrate is not authorised to inquire into the credibility of the complainant
and the acceptability of the allegations at the stage of application under
Section 156(3) Cr.P.C.
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4.1 It is submitted that the Constitution Bench judgment in the
case of Lalita Kumari (supra)holds that a police officer cannot refuse
to register an FIR if it discloses commission of a cognizable offence. It
is submitted that the preliminary enquiry contemplated in Lalita Kumari
(supra) by a police officer is only to ascertain whether a cognizable
offence is revealed or not. It is submitted that if the police officer wrongly
or incorrectly refuses to register an FIR, the complainant has no option
in law but to file a complaint under Section 156(3) Cr.P.C.
4.2 It is submitted that though the judgment in Priyanka Srivastava
(supra) empowers the Magistrate to consider the credibility of the
complainant and the acceptability of the allegations also at the stage of
application under Section 156(3) Cr.P.C., in view of the prior decisions
of this Court in the cases of Srinivas Gundluri and others v. SEPCO
Electric Power Construction Corporation, reported in (2010) 8 SCC
206; and Anju Chaudhary v. State of U.P., reported in (2013) 6
SCC 384, the plea that the veracity and/or credibility of the complainant
and the acceptability of the allegations raised can be gone into by the
Magistrate at Section 156(3) stage does not appear to be correct.
4.3 It is submitted that the Magistrate is approached by the
complainant alleging that the police officer has not registered the FIR.
Hence, there cannot be a mismatch between the duty of the police officer
under section 154(1) and the contours of the jurisdiction of the Magistrate
under Section 156(3) at the pre-cognizance stage. It is submitted that if
so understood, the test of veracity enabled in Priyanka Srivastava
(supra) can only be to ascertain whether a cognizable offence is in fact
made out or not. It cannot receive an interpretation, divorced of the
context and the dictum in Lalita Kumari (supra). If so, there will be a
mismatch between Section 154(1) and Section 156(3) Cr.P.C.