May 6, 2023 In Uncategorized


A two Judge Bench of the Supreme Court comprising of Justice M.R. Shah and Justice Sanjiv Khanna passed a Judgment dated 04.05.2023 in the case of ‘Kailash Vijayvargiya vs Rajlakshmi Chaudhuri and others, Criminal Appeal No. 1581 of 2021’ and upheld the High Court Order to remit the case to the Trial Court for examination and judicious application of mind while exercising the discretion under Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC).


One, Ms. Rajlakshmi Chaudhuri (Complainant-Respondent), filed a Complaint in 2020 before the Learned Chief Judicial Magistrate (Ld. CJM) in Alipore, West Bengal (Trial Court), alleging that on 29.11.2018 Mr. Kailash Vijayvargiya (Accused-Appellant) had raped her at his residence when the Complainant-Respondent visited him upon his invitation to discuss about a prior criminal case filed by her against his colleagues.

The Complainant-Respondent also stated in her Complaint that she had made several complaints to various authorities about being a victim of death threats from the Accused-Appellant. Despite these complaints, the police officers failed to register FIRs or investigate the case, hence, the Complainant-Respondent requested the Ld. CJM to pass orders under Section 156(3) of The Code of Criminal Procedure, 1973 (Cr.P.C) – (Police officer’ s power to investigate cognizable case – Any Magistrate empowered under section 190 may order such an investigation).

The Ld. CJM vide Order dated 12.11.2020 dismissed the Complaint/Application filed by the Complainant-Respondent and refused to direct the police to register an FIR and investigation into the matter on the ground that the truth and veracity of the allegations in the said Complaint had no credibility. The Ld. CJM further mentioned in Order dated 12.11.2020 that the reason for delay in reporting the incident was not satisfactory as the Complainant-Respondent had filed the Complaint after almost two years of the happening of the incident.

Aggrieved by the Order of the Ld. CJM dated 12.11.2020, the Complainant-Respondent filed a Criminal Revision Application No. 92/2021 in the High Court of Calcutta to set aside the dismissal of the Order passed by the Ld. CJM.

In the High Court of Calcutta:

The High Court of Calcutta vide Judgment dated 01.10.2021 quashed and set aside the Order passed by the Ld. CJM dated 12.11.2020, directing the Trial Court to re-consider the Application filed by the Complainant-Respondent under Section 156(3) of Cr.P.C.

The High Court while passing the Judgment dated 01.10.2021, was of the opinion that it was not open for the Trial Court to verify the truth and veracity of the allegations at the stage of considering the application under Section 156(3) Cr.P.C.

The High Court further stated that the Trial Court was only required to considered whether the allegations in the Complaint/Application disclose prima facie commission of a cognizable offence or not. If it does, then the Magistrate has to pass an order directing the concerned police officer to register an FIR.

Aggrieved by the Order of the High Court dated 01.10.2021, the Accused-Appellant filed a Criminal Appeal No. 1581 of 2021 in the Supreme Court.

Supreme Court Observations:

After due consideration of the arguments by all the parties, the Hon’ble Supreme Court observed the following-

1) That a Magistrate is required to apply his mind and exercise his discretion in a judicious manner when he finds that the allegations made before him disclose the commission of a cognizable offence. Upon following this, either he can forward the complaint to the Police for investigation under Section 156 of Cr.P.C or he can cognizance for recourse under Section 202 of Cr.P.C (Postponement of issue of process).

2) That every petitioner must file an affidavit when he files a petition/application under Section 156(3) of Cr.P.C to ensure he is conscious of not making any false allegations.

3) 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 and not simply dismiss it.

4) That it is impermissible and contrary to law to adjudicate a matter on merits of the allegations by determining the facts as baseless, without further scrutiny and examination.


The Apex Court vide Order dated 04.05.2023 passed a Judgment in Criminal Appeal No. 1581 of 2021 and upheld the High Court’s Order dated 01.10.2021 to remit the matter to the Trial Court for further examination. The Apex Court dismissed the above Appeal filed by the Accused-Appellant and further directed the Ld. CJM to apply his judicious mind while exercising his discretion to issue directions under Section 156(3) of Cr.P.C.


Shalini Donthi

Legal Associate

The Indian Lawyer

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