(Kailash Vijayvargiya vs State Of West Bengal) on 14 October, 2021

[Cites 16, Cited by 2]

Calcutta High Court (Appellete Side)

(Kailash Vijayvargiya vs State Of West Bengal) on 14 October, 2021

14.10.2021 CRM 2867 of 2021
(Kailash Vijayvargiya Vs. State of West Bengal)
Court - 08
Item
Matter
Status
- 1-3
- 438
- allowed
with
Transcriber - NANDY
CRM 6827 of 2021
(Jisnu Basu Vs. State of West Bengal)
with
CRM 6828 of 2021
(Pradeep Joshi @ NG Joshi Vs. State of West Bengal)

In Re:- Applications for Anticipatory Bail under section 438
of the Code of Criminal Procedure filed on 12.10.2021 in connection
with Bhawanipore Police Station Case 221 of 2021 dated
09.10.2021 under Sections 376D/506(ii)/120B of the Indian Penal
Code (G.R. Case No. 2913 of 2021);
And
In the matter of : Kailash Vijayvargiya (petitioner in CRM 6826 of 2021)
Jisnu Basu (petitioner in CRM 6827 of 2021)
Pradeep Joshi @ NG Joshi (petitioner in CRM 6828 of 2021)
......petitioners
Mr. Mahesh Jethmalani, Senior Advocate
Mr. Kallol Mondal, Advocate
Mr. Rajdeep Majumdar, Advocate
Mr. Kabir Shankar Bose, Advocate
Mr. Mayukh Mukherjee, Advocate
Mr. Amit Mishra, Advocate
Ms. Kanika Sehghal, Advocate
Mr. Debu Chowdhury, Advocate
Mr. Pritam Roy, Advocate
Ms. Arushi Rathore, Advocate
Mr. Dhiraj Trivedi, Advocate
Mr. Lokenath Chatterjee, Advocate
Ms. Mugdha Pandey, Advocate
...for the petitioner (in CRM 6826 of 2021)
Mr. P.S. Patwalia, Senior Advocate
Mr. Kallol Mondal, Advocate
Mr. Rajdeep Majumdar, Advocate
Mr. Kabir Shankar Bose, Advocate
Mr. Amit Mishra, Advocate
Mr. Debu Chowdhury, Advocate
Ms. Kanika Sehghal, Advocate
Ms. Arushi Radhore, Advocate
Mr. Dhiraj Trivedi, Advocate
Mr. Lokenath Chatterjee, Advocate
Ms. Mugdha Pande, Advocate
...for the petitioner (in CRM 6827 of 2021)
Mr. Guru Krishna Kumar, Senior Advocate
Mr. Kallol Mondal, Advocate
Mr. Rajdeep Majumdar, Advocate
Mr. Kabir Shankar Bose, Advocate
2

Mr. Amit Mishra, Advocate
Ms. Kanika Sehghal, Advocate
Mr. Debu Chowdhury, Advocate
Mr. Dhiraj Trivedi, Advocate
Mr. Lokenath Chatterjee, Advocate
Ms. Mugdha Pande, Advocate
...for the petitioner (in CRM 6828 of 2021)
Mr. Saswata Gopal Mukherjee, Ld. Public Prosecutor
Mr. Swapan Banerjee, Advocate
Mr. Sanjay Bardhan, Advocate
Mr. Suman De, Advocate
Mr. Imtiaz Ahmed, Advocate
Mr. Tarun Kumar Chatterjee, Advocate
...for the State

All the aforesaid anticipatory bail applications are taken up
together having its genesis from a common allegations. The case
originated on the basis of an order passed by the learned Chief
Judicial Magistrate, Alipore directing the complaint filed under
section 156(3) of the Code of Criminal Procedure to be treated as
First Information Report and thereafter the ball rolled in the corridor
of investigation. Prelude to the case, is required to be adumbrated,
to have the clarity of facts discernible from the allegations made by
the accused against the aforesaid three petitioners.

The starting point of an allegation is on November 29, 2018
when the accused was called by the petitioner in CRM 6826 of
2021 at his flat 'Rameswaram Apartment, situated at 19A, Sarat
Bose Road, Kolkata - 700020 to desist her from pursuing her
earlier complaint lodged against some of the members of the
political party and in pursuit thereof they committed rape on her,
one after another, and she was forced to leave the flat in a
vegetated condition upon perpetration of threat on her life including
her son. It is further alleged that she intended to lodge an FIR in the
Women Police Station at Behala, but she had shown an apathetic
attitude as no FIR was registered on her complaint. It is, further,
alleged that since thereafter she was physically assaulted on
3

multiple occasions; more precisely, 39 times on diverse dates and
places and ultimately two complaints were lodged, one at Sarsuna
Police Station being Case No. 131 of 2019 dated December 20,
2019 under Section 341/506(ii)/34 of the Indian Penal Code and
another at Bolpur Police Station being Case No. 89 of 2020 under
Sections 341/323/325/506/34 of the Indian Penal Code. The
allegation proceeds further that since, thereafter, she has been
approaching different authorities to ventilate her grievances but due
to dormant attitude, having shown to her, an application under
Section 156(3) of the Code of Criminal Procedure was filed on
November 12, 2020.

The said application was dismissed by the Chief Judicial
Magistrate, Alipore on November 12, 2020, primarily on two counts,
firstly, there was an abysmal delay in lodging the First Information
Report of the alleged incident of November 29, 2018 and secondly,
the veracity and truthfulness of the allegation is doubtful. In effect,
the application was rejected sans merit in it.

The said order was assailed before this Court by filing the
Criminal Revisional Application, which was registered as CRR 92 of
2021. The said application was allowed setting aside the order of
the Chief Judicial Magistrate, Alipore and was remitted back for
reconsideration in light of the observations recorded therein. It was
further indicated that the said Chief Judicial Magistrate, Alipore
would dispose of the said application within seven days from the
date of receipt of the said order.

Pursuant to the said order, having communicated, the matter
was taken up by the same Chief Judicial Magistrate on October 8,
2021 and solely on the basis of the directions/orders passed by this
Court in exercise of the revisional jurisdiction, the complaint was
directed to be treated as FIR.
4

Since the FIR has been registered in terms of the order of the
Chief Judicial Magistrate, Alipore, investigation agencies conducted
enquiry and apprehending arrest in connection therewith, the
present applications have been taken out seeking benefit under
Section 438 of the Code of Criminal Procedure.

Learned senior counsel appearing for the respective
petitioners argued extensively taking different paths, but to the
common objective.

According to Mr. Jethmalani, learned senior counsel
appearing for the petitioner in CRM 6826 of 2021, there is an
apparent inconsistency in the allegations of the victim lady which
was succinctly narrated and/or jotted down by the Chief Judicial
Magistrate in rejecting an application under Section 156(3) of the
Code of Criminal Procedure. According to him, there is a fallacy in
the reasoning returned by this Court in setting aside the said order
and the core issue was untouched and/or overlooked by this Court.
It is arduously submitted before us that there is an apparent delay in
approaching the authority of the Court and there is no sufficient
explanation offered by her or at least discernible from her conduct.
The stresses were put on the two FIRs/complaints lodged by her in
two different police stations, as indicated above, where not a single
whisper could be ascertained relating to the gravity of the offence
which is now alleged in the said application.

It is further submitted that the aforesaid two complaints were
investigated upon and ultimately the investigating officer filed the
report stating that it lacks veracity and no cognizable offence having
made out. It is vehemently submitted that the Apex Court in the
case of Priyanka Srivastava vs.State of Uttar Pradesh reported
in (2015) 6 SCC 287 succinctly laid down, the criteria and the
5

courses to be adopted in dealing with an application under Section
156(3) of the Code and there is an apparent incongruity in the order
of this Court in exercise of the criminal revisional jurisdiction while
interfering with the order of the Chief Judicial Magistrate. As per Mr.
Jethmalani, Learned Senior Counsel, apart from the point of delay
in approaching the forum or narrating the incident, the veracity and
authenticity of the allegation is required to be ascertained by the
Magistrate at the time of dealing with an application under Section
156(3) of the Code. It is thus submitted that posing silence while
making complaint after the alleged incident is a glaring example of
after thought and the personal liberty enshrined under Article 21 of
the Constitution of India should be respected.

Mr. Patwalia, learned senior counsel, appearing on behalf of
the petitioner in CRM 6827 of 2021 adopt the submission of Mr.
Jethmalani and submits that the closure report filed by the
investigating agency on the basis of the aforesaid two complaints
lodged after the alleged incident apparently leads to an inescapable
conclusion that she had cooked up this story subsequently out of
political vendetta. It is further submitted that though in one of such
case the objection is raised by the victim lady against the closure
report submitted by the investigating agency but the same has not
been decided yet and the matter is still sub judice. He further
submits that the allegation made therein is bereft of any truth in it
and certain events narrated therein are conspicuously absent in the
application filed by her. He further reiterates that when the narration
of the incident is bereft of any material, there is no fetter on the part
of the Court to extend the benefit under Section 438 of the Code.

Mr. Krishna Kumar, learned senior counsel, appearing for the
petitioner in CRM 6828 of 2021 has echoed the submission of
other senior counsel and he additionally submits that the order of
6

the Chief Judicial Magistrate rejecting an application Section 156(3)
of the Code would reveal another incident of August 9, 2018 at
different place but there is no written complaint nor reflection in the
said application. He further submits that the victim lady who was
courageous enough to lodge an FIR against other persons and the
FIR has been registered and a case has been initiated against
them, it is preposterous to suggest that because of the social
stigma, she was shying away from approaching the Court promptly.
It is further submitted that an earlier case initiated by her against
other persons is still pending and in fact, the accused therein have
been benefited under the provisions of Section 438 of the Code. It
is thus, submitted that there is no justification of any custodial
interrogation in connection with the instant case and the petitioners
holding a high reputation and position in the society cannot escape
the rigor of law rather should respect and obey the procedure of law
and assist and cooperate with the investigation.

Per contra, Mr. Mukherjee, learned Public Prosecutor refuted
the contention of the petitioners and submits that there are serious
allegation made against the petitioners by the victim lady and once
it has reached to the domain of investigating officer, it is imperative
on the part of the investigating officer to investigate the case fairly
and impartially. It is further submitted that the investigation is at
nebulous stage as the victim lady showed her inability to meet with
the investigating officer as she is out of town. Mr. Mukherjee further
submits that the investigating officer has recorded the statement of
two witnesses under section 161 of the Code disclosing the nexus
with the place of alleged occurrence. It is strongly submitted that in
order to unearth the truth the custodial interrogation of the
petitioners is required. However, he informed the Court that the
petitioners have challenged the order of this Court passed in
revisional jurisdiction by filing a Special Leave petition before the
7

Supreme Court which is expected to be listed on October 20, 2021
and till such time, no protection should be extended to the
petitioners.

On the conspectus of the aforesaid submissions and the facts
discern from the applications filed before us, the actual point which
fell for consideration is whether the petitioners have been able to
make out a case for extending the benefit under Section 438 of the
Code.

Assimilation of the facts narrated hereinabove, leads no
ambiguity in our mind that the incident of November 28, 2018 has
been projected affront for making out a cognizable offence for
registration of an FIR against the accused persons. It is no doubt
true that there has been considerable delay and the explanation
offered therein, needs more scrutiny. Though it has been stated that
the victim lady was running from pillar to post to ventilate her
grievances, yet at times and during such interregnum period, the
complaints were registered which did not disclose the alleged
offence of gang-rape. Those complaints were lodged on separate
set of facts where there is no whisper of gang-rape having
committed by the petitioners. Even those complaints after being
investigated, were dropped on the closure report filed by the
investigating officer as the materials found during investigation do
not instill confidence nor meet the requirement of law. There was a
complete silence on the commission of rape on August 9, 2018 by
the petitioner in CRM 6826 of 2021 at different place. Though it is
contended she met the officers of the police station but there is no
document forthcoming to corroborate such facts.

It is somewhat settled that the Magistrate shall not dispose of
an application under Section 156(3) of the Code directing the
registration of an FIR merely on the drop of the hat. In Priyanka
8

Srivastava (supra) the Apex Court has laid down the modalities
and the procedure required to be adhered by the Magistrate before
passing an order of registration of FIR in the following:-
"26. At this stage it is seemly to state that power under Section 156(3)
warrants application of judicial mind. A court of law is involved. It is
not the police taking steps at the stage of Section 154 of the code. A
litigant at his own whim cannot invoke the authority of the Magistrate.
A principled and really grieved citizen with clean hands must have
free access to invoke the said power. It protects the citizens but when
pervert litigations takes this route to harass their fellows citizens,
efforts are to be made to scuttle and curb the same.

27. In our considered opinion, a stage has come in this country where
Section 156(3) Cr.P.C. applications are to be supported by an affidavit
duly sworn by the applicant who seeks the invocation of the
jurisdiction of the Magistrate. That apart, in an appropriate case, the
learned Magistrate would be well advised to verify the truth and also
can verify the veracity of the allegations. This affidavit can make the
applicant more responsible. We are compelled to say so as such kind
of applications are being filed in a routine manner without taking any
responsibility whatsoever only to harass certain persons. That apart, it
becomes more disturbing and alarming when one tries to pick up
people who are passing orders under a statutory provision which can
be challenged under the framework of said Act or under Article 226 of
the Constitution of India. But it cannot be done to take undue
advantage in a criminal court as if somebody is determined to settle
the scores. We have already indicated that there has to be prior
applications under Section 154(1) and 154(3) while filing a petition
under Section 156(3). Both the aspects should be clearly spelt out in
the application and necessary documents to that effect shall be filed.
The warrant for giving a direction that an the application under Section
156(3) be supported by an affidavit so that the person making the
application should be conscious and also endeavour to see that no
false affidavit is made. It is because once an affidavit is found to be
false, he will be liable for prosecution in accordance with law. This will
deter him to casually invoke the authority of the Magistrate under
Section 156(3). That apart, we have already stated that the veracity of
the same can also be verified by the learned Magistrate, regard being
had to the nature of allegations of the case. We are compelled to say
so as a number of cases pertaining to fiscal sphere, matrimonial
dispute/family disputes, commercial offences, medical negligence
cases, corruption cases and the cases where there is abnormal
delay/laches in initiating criminal prosecution, as are illustrated in
Lalita Kumari are being filed. That apart, the learned Magistrate would
also be aware of the delay in lodging of the FIR.

It is an ardent duty of the Magistrate not only to ascertain that
cognizable offence has been committed but also to verify the truth
in the allegations as no responsible citizen should embark the
journey of harassment in the hands of another citizen. Even in
9

Mukul Roy vs. The State of West Bengal reported in 2018 SCC
Online Cal 4861, the Single Bench of this Court has succinctly and
broadly laid down the parameters to be scrupulously followed by the
Magistrate while exercising the power under Section 156(3) of the
Code which runs thus:-
Therefore, I direct that Learned Registrar General shall take immediate
steps for issuance of suitable guidelines to all the Chief Judicial
Magistrates, Chief Metropolitan Magistrates, Additional Chief Judicial
Magistrates, Additional Chief Metropolitan Magistrates, Judicial
Magistrates through the District Sessions Judges and Metropolitan
Magistrates, Calcutta of all the Districts of the State of West Bengal,
which guidelines are laid down for application of judicial mind by the
Learned Judicial Magistrate while invoking power under Section 156(3)
of the Code, as under--

The learned Magistrate would be well advised to verify the truth and the veracity of the allegations, regard being had to the nature of allegations of the case.

2. There has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3) of the Code of Criminal Procedure.

3. Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed which are the sine qua non for application under Section 156(3) of the Code.

4. An application under Section 156(3) of the Code should be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made.

5. A number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed.

6. Learned Magistrate would also be aware of the abnormal delay in lodging of the FIR in initiating criminal prosecution.

The law as enunciated above leave no ambiguity that while invoking the power under Section 156(3) of the Code, the Magistrate not only shall verify the truth and veracity and authenticity of the allegation in the perspective thereof, but also the person affirming an affidavit must ensure that the allegation made therein is true and there is no element of falsity therein. It is beyond the cavil of doubt that it is an ardent duty of the Magistrate to find out the element of an offence from a complaint and the veracity and the truthfulness, thereof, at least, prima facie, must be found out.

All the senior counsel appearing for the petitioners have uniformly submitted that the findings of the High Court in setting aside the order of the Chief Judicial Magistrate at Alipore suffers from glaring infirmity and inconsistency. As indicated above, the said order is challenged before the Supreme Court and the matter is pending, thereon and likely to be listed on October 20, 2021. Since, this Court remitted the application back to the Chief Judicial Magistrate, Alipore for reconsideration in the light of the observations made thereon and the initiation of the present proceeding is an outcome of such direction, once the ball has rolled to the Supreme Court, we feel that the aforesaid aspect cannot be overlooked at this juncture.

Furthermore, learned Public Prosecutor contended before us that the investigation is at the nebulous stage and there is no possibility of recording the version/statement of the victim lady on or before October 16/17, 2021, we feel that the petitioners are entitled to an interim protection. Since the origin of the instant case is founded upon the order of this Court, scrupulously followed by the Chief Judicial Magistrate, in allowing an application under Section 156(3) of the Code, the matter is largely depends upon the outcome of the Special Leave Petition and till such time, we feel that the petitioners should not be deprived of the personal liberty.

In view of the inconsistency pointed out hereinabove and that the matter is pending before the Supreme Court, we extend the benefit of Section 438 of the Code of Criminal Procedure as an interim measure till October 25, 2021.

Accordingly, we direct that in the event of arrest, the petitioners, namely, Kailash Vijayvargiya, Jisnu Basu and Pradeep Joshi @ NG Joshi shall be released on interim bail upon 11 furnishing a bond of Rs. 10,000/- each, with two sureties of like amount each, one of whom must be local, to the satisfaction of the arresting officer and also subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure, 1973 and on further condition that the petitioners shall not tamper with the evidence and intimidate witnesses in any manner, whatsoever.

The interim bail shall remain effective till October 25, 2021.

It is vehemently submitted by Mr. Swapan Banerjee, Learned Advocate for the State after taking leave of the Learned Public Prosecutor that certain observations made hereinabove, more particularly on the order passed by the Chief Judicial Magistrate, as well as by this Court in revisional jurisdiction, may have a persuasive effect in a pending matter before the Supreme Court.

We do not think, the apprehension to be correct. Each matter is required to be decided independently and on the basis of the materials placed before the Court. The observation made at the time of passing an interim bail is tentative in nature and, therefore, such apprehension is unfounded.

Let the matters be listed on October 25, 2021 before the available Vacation Bench.

(Harish Tandon, J) (Kaushik Chanda,J.)

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