The learned Senior Advocate appearing on behalf of one of the
appellants-accused has 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) of the Code of Criminal Procedure. It is
submitted that the High Court ought to have appreciated that the learned
CJM dismissed the application under section 156(3) of the Code of Criminal
Procedure upon verifying the truth and veracity100 of the allegations made in the
application, more particularly considering the fact that there was a delay
of almost two120 years after the date of the alleged incident which has not
been explained. It is submitted that 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, any200 allegation of rape on 29.11.2018 was made. 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 wrongly240 relied upon and considered or
applied the decision of this Court in the case of Lalita Kumari
v. Government of Uttar Pradesh. It is submitted that the High Court has
materially erred in observing that while considering the application under
Section 156(3) of the Code of Criminal Procedure, Magistrate has no
jurisdiction at all to300 verify the truth and veracity of the allegations. It is
further submitted that the learned Single Judge of the High Court is not
right or justified in taking a contrary view than the view taken by the Co-ordinate
Bench in the case of Mukul Roy. It is submitted that if the learned Single
Judge of the High Court was of360 the opinion that the view taken in the case of Mukul Roy 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 taking400 a contrary view.
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 v. Government of Uttar Pradesh and thereafter refused to register the
FIR. Learned Senior Advocates appearing on behalf of480 the respective appellants have taken us to the number of
emails and messages sent to one of the appellants from500 30.11.2018 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. 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. The said
complaint categorically mentions that she met the appellant. However,600 the 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 a700 closure report dated 16.06.2020
was filed in the aforesaid case. It is submitted that thereafter another720 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 more 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 for800 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 and
raped her on 29.11.2018.840 It is submitted that 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) of Code of Criminal Procedure.
It is further submitted900 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 inconsistencies to raise doubts regarding the truth and960 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 29.11.2018.1000 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. It is submitted that the learned CJM further noted
that the complainant in her application under Section 156(3) has stated that
she made several complaints before1080 various police stations against the accused persons and their men
for the physical attacks carried out on her. However, no1100 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.1157
