New Delhi, May 4 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.
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