/120B of the Indian Penal Code.){kind=link}
The Calcutta High Court has granted anticipatory bail till October 25 to BJP leader Kailash Vijayvargiya, RSS member Jisnu Basu and Pradeep Joshi in an assault and criminal intimidation case on a bail bond of Rs 10,000, with two sureties of the like amount each.
A Division Bench of Justices Harish Tandon and Kausik Chanda directed on Thursday that the petitioners were granted anticipatory bail under Section 438(2) of the Code of Criminal Procedure, 1973, on condition that they shall not tamper with the evidence and intimidate witnesses in any manner, whatsoever.
The anticipatory bail applications were filed by the accused on October 12 under Section 438 of the Code of Criminal Procedure, in connection with a case registered at Bhawanipore Police Station Case on October 9, under Sections 376D/506(ii)/120B of the Indian Penal Code.
The applications were taken up together, having its genesis from a common allegation. The case originated on the basis of an order passed by the Chief Judicial Magistrate, Alipore, directing a complaint be 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.
As per the complainant, on November 29, 2018, the accused called the petitioner at his flat in Rameswara Apartment, situated at 19A, Sarat Bose Road, Kolkata, to desist her from pursuing her earlier complaint lodged against some of the members of the political party. The woman said the accused gangraped her there and also threatened to kill her and her son, if she revealed anything to anyone. She alleged that she intended to lodge an FIR in the Women Police Station at Behala, but no FIR was registered on her complaint.
The complainant said she was physically assaulted 39 times after the November 29 incident, on the basis of which, two complaints were lodged, one at Sarsuna Police Station Case on December 20, 2019 under Sections 341/ 506 (ii)/34 of the Indian Penal Code and another at Bolpur Police Station Case under Sections 341/323/325/506/34 IPC.
The woman said she approached different authorities to ventilate her grievance, but due to their dormant attitude, she filed an application under Section 156(3) of the Code of Criminal Procedure on November 12, 2020.
The 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 was doubtful.
The woman moved High Court against the Alipore CJM order. The High Court allowed her Criminal Revisional Application, setting aside the order of the Chief Judicial Magistrate, Alipore and remitted it back for reconsideration in light of the observations recorded therein.
According to Mahesh Jethmalani, Senior Counsel appearing for petitioner Kailash Vijayvargiya, there is an apparent inconsistency in the allegations of the victim, 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 was a fallacy in the reasoning returned by the Court in setting aside the said order and the core issue was untouched and/or overlooked by the 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,” noted Jethmalani.
He further submitted that the two complaints were investigated upon and the investigating officer filed the report stating that it lacks veracity and no cognisable offence has been made out.
It was 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 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 the Court in exercise of the criminal revisional jurisdiction, while interfering with the order of the Chief Judicial Magistrate.
As per Jethmalani, 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.
The Senior Counsel submitted that posing silence while making a 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.
Public Prosecutor Saswata Gopal Mukherjee refuted the contention of the petitioners and submitted that serious allegations were made against the petitioners by the victim and once it has reached the domain of investigating officer, it is imperative on part of the investigating officer to investigate the case fairly and impartially.
Mukherjee submitted that the investigation is at a nebulous stage, as the victim was out of town and could not meet the investigating officer.
The Court said, “All the Senior Counsels appearing for the petitioners uniformly submitted that the findings of the High Court in setting aside the order of the Chief Judicial Magistrate at Alipore suffered from glaring infirmity and inconsistency. Further, the 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 before October 16, we feel that the petitioners are entitled to 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 largely depends on the outcome of the Special Leave Petition and till such time, we feel that the petitioners should not be deprived of the personal liberty, it added.
The Court directed that in the event of arrest, Kailash Vijayvargiya, Jisnu Basu and Pradeep Joshi alias NG Joshi shall be released on interim bail on 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.