A Division Bench of the Calcutta High Court comprising of Justice Harish Tandon and Justice Kaushik Chanda, while dealing with the bail applications (including that of a BJP leader) challenging the order of CJM, Ailore, granted bail to the BJP leader Kailash Vijayvargiya, RSS member Jisnu Basu and Pradeep Joshi.
Background of the Case
In this case, the victim woman alleged that Vijayvargiya called her to his flat, assaulted her with 2 other Applicants, and committed rape on her many times. After the incident, she was kicked out of the flat in a bad condition.
She alleged in her report that such assaults happened With her many times before also. On December 20, 2019 complaint was lodged by her u/s 341/506 of IPC, 34 of IPC, and u/s 341, 323, 325, 506, 34 of IPC.
On November 12, 2020, an application was filed under Section 156(3) of Cr.P.C. which was dismissed by the CJM, Alipore. Therefore, the matter came before the High Court for consideration.
On October 8, 2021, after the High Court's direction, CJM directed the Complaint filed by the victim to be taken as FIR. Counsels for the Petitioner argued that if multiple times the victim was sexually assaulted then why there was no description of the application before the lower court.
Order of the Court
Court took into consideration the arguments put forward in the case and stated that there was a clear infirmity in the order passed by HC in setting aside the order of the CJM, Ailore and the same had been challenged at the Supreme Court.
The court stated that,
“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 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 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, Bench extended the benefit of Section 438 of the Code of Criminal Procedure as an interim measure till October 25, 2021.
Accordingly, Bench directed 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 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 the 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 was 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.
Court did not find the apprehension to be correct. Each matter was 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 was tentative in nature and, therefore, such apprehension was unfounded. This matter was listed on October 25, 2021 before the available Vacation Bench.
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