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“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
REVIEW PETITION (CRL.) NO. 85 OF 2012
IN
CRIMINAL APPEAL NO. 68 OF 2012
Nupur Talwar …. Petitioner
Versus
Central Bureau of Investigation & Anr. …. Respondents
O R D E R
1. The instant controversy emerges out of a double murder, committed on
the night intervening 15-16.5.2008. On having found the body of Aarushi
Talwar in her bedroom in house no. L-32, Jalvayu Vihar, Sector 25, Noida, her
father Dr. Rajesh Talwar got a first information report registered at Police
Station Sector 20, Noida, on 16.5.2008. In the first information report Dr.
Rajesh Talwar pointed the needle of suspicion at Hemraj, a domestic help in
the household of the Talwars. On 17.5.2008 the dead body of Hemraj was
recovered from the terrace of the same house, i.e., house no. L-32, Jalvayu
Vihar, Sector 25, Noida, where Aarushi’s murder had also allegedly been
committed.
2. The initial investigation into the double murder was carried out by the
U.P. Police. On 29.5.2008 the State of Uttar Pradesh handed over the
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investigation to the Central Bureau of Investigation (hereinafter referred to as,
the CBI), thereupon investigation was conducted by the CBI.
3. During the course of investigation, besides Dr. Rajesh Talwar, the
needle of suspicion came to be pointed towards Krishna Thadarai, Rajkumar
and Vijay Mandal. Dr. Rajesh Talwar was arrested on 23.5.2008. Originally a
three days’ remand was granted to interrogate him to the U.P. Police. Dr.
Rajesh Talwar remained in police and judicial custody from time to time,
wherefrom, he was eventually released on bail on 11.7.2008. The other three
individuals, namely, Krishna Thadarai, Rajkumar and Vijay Mandal were also
arrested by the police. Since investigation against the aforesaid three could not
be completed within the period of 90 days, they were ordered to be released on
bail.
4. Having investigated into the matter for a considerable length of time, the
CBI submitted a closure report on 29.12.2010. The reasons depicted in the
closure report indicated the absence of sufficient evidence to prove the alleged
offences against the accused Dr. Rajesh Talwar, beyond reasonable doubt. A
summary of the reasons recorded in the said report itself, are being extracted
hereunder:
“Despite best efforts by investigating team, some of the major
shortcomings in the evidence are :-
i. No blood of Hemraj was found on the bed sheet and pillow of
Aarushi. There is no evidence to prove that Hemraj was killed in
the room of Aarushi.
ii. Dragging mark on steps only indicate that murder has taken place
somewhere other than the terrace.
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iii. On the clothes of Dr. Rajesh Talwar, only the blood of Aarushi
was found but there was no trace of blood of Hemraj.
iv. The clothes that Dr. Nupur Talwar was wearing in the photograph
taken by Aarushi in the night of the incident were seized by CBI
but no blood was found during forensic examination.
v. Murder weapons were not recovered immediately after the
offence. One of the murder weapon i.e. sharp edged instrument
could not be recovered till date and expert could not find any
blood stain or DNA of victims from golf stick to directly link it to
the crime.
vi. There is no evidence to explain the finger prints on the scotch
bottle (which were found along with blood stains of both the
victims on the bottle). As per police diary, it was taken into
possession on 16
th morning itself. In spite of best efforts, the
fingerprint(s) could not be identified.
vii. The guards of the colony are mobile during night and at the
entrance they do not make any entry. Therefore, their statements
regarding movement of persons may not be foolproof.
viii. Scientific tests on Dr. Rajesh Talwar and Dr. Nupur Talwar have
not conclusively indicated their involvement in the crime.
ix. The exact sequence of events between (in the intervening night of
15-16/05/2008) 00.08 mid night to 6:00 AM in the morning is not
clear. No evidence has emerged to show the clear role of Dr.
Rajesh Talwar and Dr. Nupur Talwar, individually, in the
commission of crime.
x. A board of experts constituted during earlier investigation team
has given an opinion that the possibility of the neck being cut by
khukri cannot be ruled out, although doctors who have conducted
postmortem have said that cut was done by surgically trained
person with a small surgical instrument.
xi. There is no evidence to explain the presence of Hemraj’s mobile
in Punjab after murder.
xii. The offence has occurred in an enclosed flat hence no eye witness
are available.
xiii. The blood soaked clothes of the offenders, clothes used to clean
the blood from the flat and stair case, the sheet on which the
Hemraj was carried and dragged on the roof, the bed cover which
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was used to cover the view from the steel iron grill on the roof
are not available and hence could not be recovered.
26. The investigation revealed several suspicious actions by the
parents post occurrence, but the circumstantial evidence collected during
investigation has critical and substantial gaps. There is absence of a
clear cut motive and incomplete understanding of the sequence of events
and non-recovery of the weapon of offence and their link to either the
servants or the parents.
In view of the aforesaid shortcomings in the evidence, it is felt
that sufficient evidence is not available to prove the offence(s) U/s
302/201 IPC against accused Dr. Rajesh Talwar beyond reasonable
doubt. It is, therefore, prayed that the case may be allowed to be closed
due to insufficient evidence.”
5. On the receipt of the closure report submitted by the CBI, the Special
Judicial Magistrate (CBI), Ghaziabad (hereinafter referred to as “the
Magistrate”) issued notice to the Dr. Rajesh Talwar in his capacity as the first
informant. In response to the notice received by Dr. Rajesh Talwar, he
submitted a detailed protest petition dated 25.1.2011, wherein, he objected to
the closure report (submitted by the CBI). In the protest petition he prayed for
further investigation, to unravel the identity of those responsible for the twin
murders of Aarushi Talwar and Hemraj.
6. On 9.2.2011, the Magistrate rejected the closure report submitted by the
CBI. The Magistrate also rejected, the prayer made in the protest petition for
further investigation (by Dr. Rajesh Talwar). Instead, having taken cognizance,
the Magistrate summoned Dr. Rajesh Talwar (father of Aarushi Talwar) and his
wife Dr. Nupur Talwar (mother of Aarushi Talwar) for committing the murders
of Aarushi Talwar and Hemraj, as also, for tampering with the evidence.
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7. The aforestated summoning order dated 9.2.2011, was assailed by Dr.
Nupur Talwar by filing a revision petition before the High Court of judicature
at Allahabad (Criminal Revision Petition no. 1127 of 2011). The aforesaid
Criminal Revision Petition came to be dismissed by the High Court vide an
order dated 18.3.2011. Dissatisfied with the order passed by the High Court
dated 18.3.2011, Dr. Nupur Talwar approached this Court by filing Special
Leave Petition (Criminal) no. 2982 of 2011 (renumbered as Criminal Appeal
no. 16 of 2011). The aforesaid Criminal Appeal was dismissed by this Court
by an order dated 6.1.2012. Through the instant review petition, the petitioner
Dr. Nupur Talwar has expressed the desire, that this Court reviews its order
dated 6.1.2012 (dismissing Criminal Appeal no. 16 of 2011). The instant
Review Petition was entertained, and notice was issued to the respondents.
Lengthy arguments were advanced at the hands of the learned counsel
representing the review petitioner. Learned counsel representing the CBI also
went to great lengths, to repudiate the same. It emerged from the submissions
advanced at the hands of the rival parties, that the focus of attack was against
the order passed by the Magistrate dated 9.2.2011.
8. The order passed by the Magistrate on 9.2.2011 was startlingly criticized
for being unnecessarily exhaustive. The Magistrate was accused of discussing
the evidence in minute detail, and thereby, for having evaluated the merits of
the controversy, well before the beginning of the trial. It was sought to be
canvassed, that even if the Magistrate having taken cognizance, was satisfied
that process deserved to be issued, he ought not have examined the factual
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intricacies of the controversy. The Magistrate, it was submitted, has the
authority only to commit the controversy in hand, to a Court of Session, as the
alleged offences emerging out of the first information report dated 16.5.2008,
and the discovery of the murder of Hemraj thereafter, are triable only by a
Court of Session. It was submitted, that the controversy had been examined as
if, the Magistrate was conducting the trial. It was asserted, that a perusal of the
order passed by the Magistrate dated 9.2.2011, gives the impression of the
passing of a final order, on the culmination of trial. It was, therefore,
submitted, that the order dated 9.2.2011 be set aside, as all the inferences,
assumptions and conclusions recorded therein, were totally uncalled for.
9. Undoubtedly, merely for taking cognizance and/or for issuing process,
reasons may not be recorded. In Kanti Bhadra Shah vs. State of West Bengal,
(2000) 1 SCC 722, this Court having examined sections 227, 239 and 245 of
the Code of Criminal Procedure, concluded, that the provisions of the Code
mandate, that at the time of passing an order of discharge in favour of an
accused, the provisions referred to above necessitate reasons to be recorded. It
was, however, noticed, that there was no such prescribed mandate to record
reasons, at the time of framing charges against an accused. In U.P. Pollution
Control Board vs. M/s. Mohan Meakins Ltd. and others, (2000) 3 SCC 745, the
issue whether it was necessary for the trial court to record reasons while issuing
process came to be examined again, and this Court held as under:-
“2. Though the trial court issued process against the accused
at the first instance, they desired the trial court to discharge
them without even making their first appearance in the
court. When the attempt made for that purpose failed they
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moved for exemption from appearance in the court. In the
meanwhile the Sessions Judge , Lucknow (Shr i Prahlad
Narain) entertained a revision moved by the accused
agains t the order issuing process to them and , quashed i t
on the erroneous ground tha t the magistrate did no t pass "a
speaking order" for issuing such summons .
3. The Chief Judicial Magistrate, (before whom the complaint
was filed) thereafter passed a detailed order on 25.4.1984
and again issued process to the accused. That order was
again challenged by the accused in revision before the
Sessions Court and the same Sessions Judge (Shri
Prahlad Narain) again quashed it by order dated 25.6.1984.
5. We may point out at the very outset that the Sessions Judge was
in error for quashing the process at the first round merely on the
ground that the Chief Judicial Magistrate had not passed a
speaking order. In fact it was contended before the Sessions
judge, on behalf of the Board, that there is no legal requirement
in Section
204 of the Code of Criminal Procedure (For short the
'Code') to record reasons for issuing process. But the said
contention was spurned down in the following words:
My attention has been drawn to Section
204 of the Code of
Criminal Procedure and it has been argued that no reasons
for summoning an accused person need be given. I feel
that under Section
204 aforesaid, a Magistrate has to form
an opinion that there was sufficient ground for proceeding
and, if an opinion had to be formed judicially, the only
mode of doing so is to find out express reasons for coming
to the conclusions. In the impugned order, the learned
Magistrate has neither specified any reasons nor has he
even formed an opinion much less about there being
sufficient ground for not proceeding with the case.
6. In a recent decision of the Supreme Court it has been pointed out
that the legislature has stressed the need to record reasons in
certain situations such as dismissal of a complaint without issuing
process. There is no such legal requirement imposed on a
Magistrate for passing detailed order while issuing summons vide
Kanti Bhadra Shah v.
State of W.B., (2000) 1 SCC 722. The
following passage will be apposite in this context:
“12. If there is no legal requirement that the trial court
should write an order showing the reasons for framing a
charge, why should the already burdened trial courts be
further burdened with such an extra work. The time has
reached to adopt all possible measures to expedite the
court procedures and to chalk out measures to avert all
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roadblocks causing avoidable delays. If a Magistrate is to
write detailed orders at different stages merely because the
counsel would address arguments at all stages, the snailpaced
progress of proceedings in trial courts would further
be slowed down. We are coming across interlocutory
orders of Magistrates and Sessions Judges running into
several pages. We can appreciate if such a detailed order
has been passed for culminating the proceedings before
them. But it is quite unnecessary to write detailed orders at
other stages, such as issuing process
, remanding the
accused to custody, framing of charges, passing over to
next stages in the trial.”
12. In the above context what is to be looked at during the stage of
issuing process is whether there are allegations in the complaint
by which the Managers or Directors of the company can also be
proceeded against, when the company is alleged to be guilty of
the offence. Paragraph 12 of the complaint read thus:
“That the accused persons from 2 to 11 are
Directors/Managers/Partners of M/s. Mohan Meakins
Distillery, Daliganj, Lucknow, as mentioned in this
complaint are responsible for constructing the proper
works and plant for the treatment of their highly polluting
trade effluent so as to conform the standard laid down by
the Board. Aforesaid accused persons are deliberately
avoiding to abide by the provisions of Sections
24 and 26
of the aforesaid Act which are punishable respectively
under Sections 43 and 44 of the aforesaid Act, for which
not only the company but its Directors, Managers,
Secretary and all other responsible officers of the accused
company, responsible for the conduct of its business are
also liable in accordance with the provision of the Section
47 of the Act.”
The appellant has further stated in paragraph 23 of the
complaint that "the Chairman, Managing Directors and Directors
of the company are the persons responsible for the act and
therefore, they are liable to be proceeded against according to the
law."
(emphasis is mine)
Whether an order passed by a Magistrate issuing process required reasons to be
recorded, came to be examined by this Court again, in Dy. Chief Controller of
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Imports and Exports vs. Roshanlal Agarwal & Ors., (2003) 4 SCC 139,
wherein this Court concluded as below:-
“9. In determining the question whether any process is to be
issued or not , wha t the Magistrate has to be satisfied is
whether there is sufficien t ground for proceeding and no t
whether there is sufficien t ground for conviction . Whether
the evidence is adequate for supporting the conviction , can
be determined only a t the tria l and no t a t the stage o f
inquiry . A t the stage o f issuing the process to the accused ,
the Magistrate is no t required to record reasons . This
question was considered recently in U.P. Pollution Control
Board v.
M/s. Mohan Meakins Ltd. & Ors., (2000) 3 SCC
745, and after noticing the law laid down in Kanti Bhadra
Shah v.
State o f Wes t Benga l, (2000) 1 SCC 722, it was
held as follows:
"The legislature has stressed the need to record reasons in
certain situations such as dismissal of a complaint without
issuing process. There is no such legal requirement
imposed on a Magistrate for passing detailed order while
issuing summons. The process issued to accused cannot be
quashed merely on the ground that the Magistrate had not
passed a speaking order."
(emphasis is mine)
Recently, in Bhushan Kumar and another vs. State (NCT of Delhi) and another
(Criminal Appeal no. 612 of 2012, decided on 4.4.2012) the issue in hand was
again considered. The observations of this Court recorded therein, are being
placed below:-
“9. A summon is a process issued by a Court calling upon a
person to appear before a Magistrate. It is used for the
purpose of notifying an individual of his legal obligation to
appear before the Magistrate as a response to violation of
law. In other words, the summons will announce to the
person to whom it is directed that a legal proceeding has
been started against that person and the date and time on
which the person must appear in Court. A person who is
summoned is legally bound to appear before the Court on
the given date and time. Willful disobedience is liable to be
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punished Under Section
174 Indian Penal Code. It is a
ground for contempt of Court.
10. Section
204 o f the Code does no t mandate the Magistrate
to explicitly state the reasons for issuance o f summons . I t
clearly states tha t i f in the opinion o f a Magistrate taking
cognizance o f an offence , there is sufficien t ground for
proceeding , then the summons may be issued . This section
mandates the Magistrate to form an opinion as to whether
there exists a sufficien t ground for summons to be issued
bu t i t is nowhere mentioned in the section tha t the explici t
narration o f the same is mandatory , meaning thereby tha t i t
is no t a pre-requisite for deciding the validity o f the
summons issued .
11. Time and again it has been stated by this Court that the
summoning order Under Section
204 of the Code requires
no explicit reasons to be stated because it is imperative
that the Magistrate must have taken notice of the
accusations and applied his mind to the allegations made
in the police report and the materials filed therewith.”
(emphasis is mine)
It is therefore apparent, that an order issuing process, cannot be vitiated merely
because of absence of reasons.
10. The matter can be examined from another perspective. The Code of
Criminal Procedure expressly delineates irregularities in procedure which
would vitiate proceedings. Section 461 thereof, lists irregularities which would
lead to annulment of proceedings. Section 461 aforesaid is being extracted
hereunder:-
“
461. Irregularities which vitiate proceedings-
If any Magistrate, not being empowered by law in this behalf,
does any of the following things, namely:-
(a) attaches and sells property under section 83;
(b) issues a search-warrant for a document, parcel or other
thing in the custody of a postal or telegraph authority;
(c) demands security to keep the peace;
(d) demands security for good behaviour;
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(e) discharges a person lawfully bound to be of good
behaviour;
(f) cancels a bond to keep the peace;
(g) makes an order for maintenance;
(h) makes an order under section 133 as to a local nuisance;
(i) prohibits, under section 143, the repetition or continuance
of a public nuisance;
(j) makes an order under Part C or Part D of Chapter X;
(k) takes cognizance of an offence under clause (c) of subsection
(1) of section 190;
(l) tries an offender;
(m) tries an offender summarily;
(n) passes a sentence, under section 325, on proceedings
recorded by another Magistrate;
(o) decides an appeal;
(p) calls, under section 397, for proceedings; or
(q) revises an order passed under section 446,
his proceedings shall be void.”
In the list of irregularities indicated in Section 461 of the Code of Criminal
Procedure, orders passed under Section 204 thereof, do not find a mention. In
a situation, as the one in hand, Section 465(1) of the Code of Criminal
Procedure, protects orders from errors omissions or irregularities, unless “a
failure of justice” has been occasioned thereby. Most certainly, an order
delineating reasons cannot be faulted on the ground that it has occasioned
failure of justice. Therefore, even without examining the matter any further, it
would have been sufficient to conclude the issue. The present situation,
however, requires a little further elaboration. Keeping in mind the peculiarity
of the present matter and the special circumstances arising in this case, some
observations need to be recorded. Accordingly, to determine whether reasons
ought to have been recorded by the Magistrate, in this case, is being dealt with
in the succeeding paragraphs.
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11. On the basis of the foundational facts already recorded above, I shall
examine the merits of the first submission advanced before the Court. First and
foremost it needs to be remembered, that the CBI had submitted a closure
report on 29.12.2010. The Magistrate could have accepted the report and
dropped proceedings. The Magistrate, however, chose not to accept the CBI’s
prayer for closure. Alternatively, the Magistrate could have disagreed with the
report, by taking a view (as she has done in the present case) that there were
sufficient grounds for proceeding further, and thereby, having taken
cognizance, could have issued process (as has been done vide order dated
9.2.2011). A third alternative was also available to the Magistrate. The
Magistrate could have directed the police to carry out further investigation. As
noticed hereinabove, the Magistrate inspite of the submission of a closure
report, indicating the absence of sufficient evidence, having taken cognizance,
chose to issue process, and thereby, declined the third alternative as well.
Since the CBI wanted the matter to be closed, it was appropriate though not
imperative for the Magistrate to record reasons, for differing with the prayer
made in the closure report. After all, the CBI would have surely wished to
know, how it went wrong. But then, there are two other important factors in
this case, which further necessitated the recording of reasons. Firstly, the
complainant himself (Dr. Rajesh Talwar, who authored the first information
report dated 16.5.2008) was being summoned as an accused. Such an action
suggests, that the complainant was really the accused. The action taken by the
Magistrate, actually reversed the position of the adversaries. The party which
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was originally pointing the finger, is now sought to be pointed at. Certainly,
the complainant would want to know why. Secondly, the complainant (Dr.
Rajesh Talwar) had filed a protest petition dated 25.1.2011, praying for a
direction to the police to carry out further investigation. This implies that the
CBI had not been able to procure sufficient evidence on the basis whereof, guilt
of the perpetrators of the twin murders of Aarushi Talwar and Hemraj could be
established. Whilst, the rival parties were pleading insufficient evidence, the
Magistrate’s order dated 9.2.2011 issuing process, implies the availability of
sufficient material to proceed against the accused. This second aspect in the
present controversy, also needed to be explained, lest the Magistrate who had
chosen to issue process against all odds, would have been blamed of having
taken the decision whimsically and/or arbitrarily. Before rejecting the prayer
made in the closure report, as also, the prayer made in the protest petition, it
was appropriate though not imperative for the Magistrate to narrate, why she
had taken a decision different from the one sought. Besides the aforesaid, there
is yet another far more significant reason for recording reasons in the present
matter. The incident involving the twin murders of Aarushi Talwar and
Hemraj are triable by a Court of Session. The authority of the Magistrate was
limited to taking cognizance and issuing process. A Magistrate in such a
situation, on being satisfied, has the authority to merely commit the case for
trial to a Court of Session, under Section 209 of the Code of Criminal
Procedure. Section 209 is being extracted hereunder:
“
Commitment of case to Court of Session when offence is
triable exclusively by it
– When in a case instituted on a police
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report or otherwise, the accused appears or is brought before the
Magistrate and it appears to the Magistrate that the offence is
triable exclusively by the Court of Session, he shall –
(a) commit, after complying with the provisions of section
207 or section 208, as the case may be, the case to the
Court of Session, and subject to the provisions of this
Code relating to bail, remand the accused to custody until
such commitment has been made;
(b) subject to the provisions of this Code relating to bail,
remand the accused to custody during, and until the
conclusion of, the trial;
(c) send to that Court the record of the case and the
documents and articles, if any, which are to be produced in
evidence;
(d) notify the Public Prosecutor of the commitment of the case
to the Court of Session.”
In this background, it was essential for the Magistrate to highlight, for the
perusal of the Court of Session, reasons which had weighed with her, in not
accepting the closure report submitted by the CBI, as also, for not acceding to
the prayer made in the protest petition, for further investigation. It was also
necessary to narrate what prompted the Magistrate to summon the complainant
as an accused. For, it is not necessary that the Court of Session would have
viewed the matter from the same perspective as the Magistrate. Obviously, the
Court of Session would in the first instance, discharge the responsibility of
determining whether charges have to be framed or not. Merely because
reasons have been recorded, the Court of Session will have an opportunity to
view the matter, in the manner of understanding of the Magistrate. If reasons
had not been recorded, the Court of Session may have overlooked, what had
been evaluated, ascertained and comprehended by the Magistrate. Of course, a
Court of Session, on being seized of a matter after committal, being the
competent court, as also, a court superior to the Magistrate, has to examine all
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issues independently, within the four corners of law, without being influenced
by the reasons recorded in the order issuing process. In the circumstances
mentioned hereinabove, it was befitting for the Magistrate to pass a well
reasoned order, explaining why she was taking a view different from the one
prayed for in the closure report. It is also expedient for the Magistrate to record
reasons why the request made by the complainant (Dr. Rajesh Talwar) praying
for further investigation, was being declined. Even the fact, that the
complainant (Dr. Rajesh Talwar) was being summoned as an accused,
necessitated recording of reasons. An order passed in the circumstances noted
hereinabove, without outlining the basis therefor, would have been injudicious.
Certainly the Magistrate’s painstaking effort needs a special commendation.
At this juncture, it would be apposite to notice the observations recorded by
this Court in Rupan Deol Bajaj and another vs. KPS Gill and another, (1995) 6
SCC 194, wherein this Court remarked as under:-
“28. Since a t the time o f taking cognizance the Cour t has to
exercise its judicia l discretion i t necessarily follows tha t i f in
a given case - as the presen t one - the complainant , as the
person aggrieved raises objections to the acceptance o f a
police repor t which recommends discharge o f the accused
and seeks to satisfy the Cour t tha t a case for taking
cognizance was made out , bu t the Cour t overrules such
objections , i t is jus t and desirable tha t the reasons
therefore be recorded . Necessity to give reasons which
disclose proper appreciation o f the issues before the Cour t
needs no emphasis . Reasons introduce clarity and
minimize chances o f arbitrariness . That necessarily means
that recording of reasons will not be necessary when the
Court accepts such police report without any demur from
the complainant. As the order o f the learned Magistrate in
the instan t case does no t contain any reason whatsoever ,
even though i t was passed after hearing the objections o f
the complainant , i t has go t to be se t aside and we do
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hereby se t i t aside . Consequent thereupon, two courses
are left open to us; to direct the learned Magistrate to hear
the parties afresh on the question of acceptance of the
police report and pass a reasoned order or to decide for
ourselves whether it is a fit case for taking cognizance
under Section
190(1)(b) Cr.P.C. Keeping in view the fact
that the case is pending for the last seven years only on the
threshold question we do not wish to lake the former course
as that would only delay the matter further. Instead thereof
we have carefully looked into the police report and its
accompaniments keeping in view the following
observations of this Court in H.S. Bains. v.
State, (1980) 4
SCC 631, with which we respectfully agree:
“The Magistrate is not bound by the conclusions
arrived at by the police even as he is not bound by
the conclusions arrived at by the complainant in a
complaint. If a complainant states the relevant facts
in his complaint and alleges that the accused is guilty
of an offence under Section
307, Indian Penal Code
the Magistrate is not bound by the conclusion of the
complainant. He may think that the facts disclosed an
offence under Section
324, Indian Penal Code only
and he may take cognizance of an offence under
Section
324 instead of Section 307. Similarly if a
police report mentions that half a dozen persons
examined by them claim to be eye witnesses to a
murder but that for various reasons the witnesses
could not be believed, the Magistrate is not bound to
accept the opinion of the police regarding the
credibility of the witnesses. He may prefer to ignore
the conclusions of the police regarding the credibility
of the witnesses and take cognizance of the offence.
If he does so, it would be on the basis of the
statements of the witnesses as revealed by the
police report.”
29. Our such exercise persuades us to hold tha t the opinion of '
the Investigating Officer tha t the allegations contained in
the F.I.R . were no t substantiated by the statements o f
witnesses recorded during investigation is no t a proper one
for we find tha t there are sufficien t materials for taking
cognizance o f the offences under Sections
354 and 509
I.P.C . We , however , refrain from detailing or discussing
those statements and the nature and extent of their
corroboration of the F.I.R. lest they create any unconscious
impression upon the Trial Court, which has to ultimately
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decide upon their truthfulness, falsity or reliability, after
those statements are translated into evidence during trial.
For the selfsame reasons we do not wish to refer to the
arguments canvassed by Mr. Sanghi, in support of the
opinion expressed in the police (final) report and our
reasons in disagreement thereto.”
(emphasis is mine)
Therefore, even though the Magistrate was not obliged to record reasons,
having passed a speaking order while issuing process, the Magistrate adopted
the more reasonable course, though the same was more ponderous,
cumbersome and time consuming.
12. Therefore, in the present set of circumstances, the Magistrate having
examined the statements recorded during the course of investigation under
Sections 161 and 164 of the Code of Criminal Procedure, as also, the
documents and other materials collected during the process of investigation,
was fully justified in recording the basis on which, having taken cognizance, it
was decided to issue process. I, therefore, hereby find absolutely no merit in
the criticism of the Magistrate’s order, in being lengthy and detailed. In
passing the order dated 9.2.2011 the Magistrate merely highlighted the
circumstances emerging out of the investigation carried out in the matter,
which constituted the basis of her decision to issue process. The Magistrate’s
order being speaking, cannot be stated to have occasioned failure of justice.
The order of the Magistrate, therefore, cannot be faulted on the ground that it
was a reasoned order.
13. During the course of hearing, the primary ground for assailing the order
of the Magistrate dated 9.2.2011 was focused on projecting, that the Magistrate
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had not only drawn incorrect conclusions, but had also overlooked certain vital
factual aspects of the matter. Before examining the details on the basis
whereof the order passed by the Magistrate (dated 9.2.2011) can be assailed, it
will be necessary to first summarize the basis whereon the Magistrate
perceived, that there was sufficient material for proceeding against the accused
in the present controversy. Different aspects taken into consideration by the
Magistrate are accordingly being summarized hereunder:
Firstly, based on the statements of Umesh Sharma and Bharti recorded during
the course of investigation, coupled with the factual position depicted in the
first information report, it was sought to be inferred, that on the night of the
incident Dr. Rajesh Talwar, Dr. Nupur Talwar, Aarushi Talwar and Hemraj
only were present at the place of the occurrence, namely, house no. L-32
Jalvayu Vihar, Sector 25, Noida. Being last seen together, the needle of
suspicion would point at the two surviving persons, specially if it could be
established, that the premises had not been broken into.
Secondly, on the basis of the statement of Mahesh Kumar Mishra, recorded
during the course of investigation, who alleged that he was told by Dr. Rajesh
Talwar, that he had seen his daughter Aarushi Talwar on the fateful night upto
11:30 p.m., whereafter, he had locked the room of his daughter from outside,
and had kept the key near his bed head. Coupled with the fact, that the lock on
Aarushi Talwar’s room was of a kind which could be opened from inside
without a key but, needed a key to be opened from outside. And further,
coupled with the fact, that the outer exit/entry door(s) to the flat of the Talwars,
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had not been broken into. It was assumed, that there was no outside forced
entry, either into the bedroom of Aarushi Talwar or the flat of the Talwars, on
the night of the twin murders of Aarushi Talwar and Hemraj.
Thirdly, the Magistrate noticed from the investigation carried out, that the dead
body of Hemraj was covered with a panel of a cooler, and on the grill a bed
sheet had been placed. Likewise, from the fact that Aarushi Talwar’s body was
found murdered on her own bed, yet her toys were found arranged “as such”
behind the bed and also, there were no wrinkles on the bed sheet. On the
pillow kept behind Aarushi Talwar, there ought to have been blood stains when
she was attacked (as she was hit on her head, and her neck had been slit), but
the same were absent. These facts were highlighted by the Magistrate to
demonstrate the dressing up of the place(s) of occurrence, to further support the
assumption of the involvement of an insider, as against, an outsider.
Fourthly, based on the statements of Virendera Singh, Sanjay Singh, Raj
Kumar, Chandra Bhushan, Devender Singh, Ram Vishal and Punish Rai
Tandon, recorded during the course of investigation, it was sought to be
assumed, that no outsider was seen either entering or leaving house no. L-32,
Jalvayu Vihar, Sector 25, Noida, on the night intervening 15-16.5.2008. This
also, according to the Magistrate, affirmed the main deduction, that no outsider
was involved.
Fifthly, based on the statements of Dr. Anita Durrani, Punish Rai Tandon and
K.N. Johri, recorded during the course of investigation, it was sought to be
inferred, that the other servants connected with the household of the Talwar
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family, namely, Raj Kumar, Vijay Mandal and Krishna Thadarai, were present
elsewhere at the time of the commission of the twin murders, and also that,
there was no material depicting their prima facie involvement or motive in the
crime, specially because, no “… precious things like jewellery or any other
thing from the house of Talwars couple …” was found missing and further that
“… no rape on Aarushi Talwar had been confirmed …”. Accordingly, it was
sought to be reasoned, that no outsider had entered the premises.
Sixthly, from the statements of Deepak Kanda, Bhupender Singh and Rajesh
Kumar, recorded during the course of investigation, it was felt that on the night
when the murder was committed, i.e. the night intervening 15-16.5.2008 the
internet connection was regularly used by Dr. Rajesh Talwar from 11:00 p.m.
to 12:08 a.m. In fact, both Dr. Rajesh Talwar, as also, Dr. Nupur Talwar
themselves confirmed to the witnesses whose statements were recorded during
the course of investigation, that the internet router was switched on at 11:00
p.m. and Dr. Rajesh Talwar had thereafter used the internet facility. Based on
this factual position it was gathered, that both Dr. Rajesh Talwar and Dr. Nupur
Talwar were awake and active at or around the time of occurrence (determined
in the post-mortem report).
Seventhly, from the statements of Sunil Kumar Dorhe, Naresh Raj, Ajay
Kumar and Dinesh Kumar recorded during the course of investigation, it was
sought to be inferred, that the private parts of the deceased Aarushi Talwar
were tampered with, inasmuch as, the white discharge was found only in the
vaginal area of Aarushi Talwar indicating, that her private parts were cleaned
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after her death. The said white discharge was found not to be originating from
the body of the deceased. The aforesaid inference was sought to be further
supported by assertions, that the vaginal opening of Aarushi Talwar, at the time
of the post mortem examination, was unusually wide. Accordingly, a
deduction was made, that evidence had been tampered with, by those inside the
flat, after the occurrence.
Eighthly, it was also sought to be assumed, that the death of Aarushi Talwar
and Hemraj was occasioned as a consequence of injuries caused by an iron 5
golf club (on the head of both the deceased), as also, “… injury on the neck of
both the deceased … caused by a surgically trained person …”. Since the golf
club in question was not immediately produced, and since, the accused
themselves were surgically trained, it was gathered that Dr. Rajesh Talwar and
Dr. Nupur Talwar were themselves responsible for the twin murders.
Ninthly, in paragraph 15 of the Magistrate’s order dated 9.2.2011 it is noticed,
that a request was made to Dr. Sunil Kumar Dhore for not mentioning the word
“rape” in the post mortem proceedings. Investigation also established, that Dr.
Dinesh Talwar (brother of Dr. Rajesh Talwar), had spoken to Dr. Sunil Kumar
Dhore and exerted influence over Dr. Sunil Kumar Dhore through Dr. Dogra
who allegedly instructed Dr. Sunil Kumar Dhore in connection with the post
mortem examination. On the basis of the aforesaid material highlighted in the
order dated 9.2.2011, the Magistrate further expressed the view, that influence
was allegedly being exerted on behalf of the accused, on the doctor who was
conducting the post mortem examination.
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Tenthly, based on the statements of Umesh Sharma, Kalpana Mondal, Vimla
Sarkar and Punish Tandon, recorded during the course of investigation, it was
sought to be concluded, that the door leading to the terrace of house no.L-32,
Jalvayu Vihar, Sector 25, Noida, had always remained open prior to the date of
occurrence. It was gathered therefrom, that the lock on the door leading to the
terrace of the house in question on the date of occurrence, was affixed so that
the investigating agency would not immediately recover the body of Hemraj, so
as to hamper the investigation. These facts allegedly spell out the negative role
played by Dr. Rajesh Talwar in causing hindrances in the process of
investigation.
Eleventhly, based on the statements of Rohit Kocchar and Dr. Rajeev
Varshney, recorded under Section 164 of the Code of Criminal Procedure,
disclosing, that they had informed Dr. Rajesh Talwar, that the terrace door, the
lock on the terrace door, as also, the upper steps of the staircase had blood
stains. They also asserted, that Dr. Rajesh Talwar “… climbed up some steps
but immediately came down and did not say anything about keys and went
inside the house …”. The aforesaid narration, coupled with the fact, that Dr.
Prafull Durrani one of the friends of Dr. Rajesh Talwar stated, that he was “…
told by Dr. Rajesh Talwar, that the key of the terrace used to be with Hemraj.
He did not know about the key …” was the basis for assuming, that Dr. Rajesh
Talwar was preventing the investigating agency from tracing the body of
Hemraj, which was eventually found from the terrace, after breaking open the
lock on the terrace door.
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Twelfthly, Umesh Sharma the driver of the Talwars, stated during the course of
investigation, that he had placed two golf clubs, i.e. irons 4 and 5 in the room
of Hemraj, when the Santro car owned by the Talwars, was given for servicing.
The iron 5 club, which is alleged to be the weapon of crime (which resulted in
a V shaped injury on the heads of both Aarushi Talwar and Hemraj), remained
untraced during the course of active investigation. The same was recovered
from the loft of the house of Dr. Rajesh Talwar, and handed over to the
investigating agency, more than a year after the occurrence on 30.10.2009. The
Magistrate noticed, that the loft from where it was allegedly found, had been
checked several times by the CBI. To which the explanation of Dr. Rajesh
Talwar allegedly was, that one golf club might have dropped from the golf kit,
and might have been left there. This factual aspect lead to the inference, that
the weapon used in the crime, was deliberately not handed over to the
investigating agency, after the occurrence.
Thirteenthly, another factual aspect emerging during the course of investigation
was, that the body of Hemraj was recovered on the day following the murder of
Aarushi Talwar, i.e., on 17.5.2008. When Dr. Rajesh Talwar was shown the
body, he could not identify it as that of Hemraj. The dead body was identified
by one of Hemraj’s friend. Dr. Nupur Talwar confirmed, that the body
recovered from the terrace was of Hemraj, on the basis of the inscription on the
shirt worn by him. From the fact that, neither Dr. Rajesh Talwar nor Dr.
Nupur Talwar could identify the body of Hemraj, from its appearance, it was
sought to be figured, that they were not cooperating with the investigation.
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Besides the aforesaid conspicuous facts depicted in the order passed by the
Magistrate, a large number of other similarly significant facts, have also been
recorded, in the order dated 9.2.2011. The same are not being mentioned
herein, as the expressive and weighty ones, essential to arrive at a
determination on the issue in hand, have already been summarized above.
Based inter alia on the inferences and the assumptions noticed above, the
Magistrate issued process by summoning Dr. Rajesh Talwar and Dr. Nupur
Talwar.
14. The facts noticed in the foregoing paragraph and the impressions drawn
thereupon by the Magistrate, are based on statements recorded under Section
161 of Code of Criminal Procedure (and in a few cases, under Section 164 of
the Code of Criminal Procedure), as also, on documents and other materials
collected during the course of investigation. Neither the aforesaid statements,
nor the documents and materials taken into consideration, can at the present
juncture be treated as reliable evidence which can be taken into consideration,
for finally adjudicating upon the guilt or innocence of the accused. It is only
when the witnesses appear in court, and make their statements on oath, and
their statements have been tested by way of cross examination; and only after
the documents and other materials relied upon are proved in accordance with
law, the same would constitute evidence which can be relied upon to determine
the controversy. It is on the basis of such acceptable evidence, that final
conclusions can be drawn to implicate the accused. That stage has not yet
arisen. At the present juncture, the Magistrate was required to examine the
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materials collected by the investigating agencies, and thereupon, to determine
whether the proceedings should be dropped (as was suggested by the
investigating agency, through its closure report dated 29.12.2010), or whether,
a direction should be issued for further investigation (as was suggested in the
protest petition filed by Dr. Rajesh Talwar), or whether, there was sufficient
ground for proceeding further, by issuing process (as has been done in the
present case). Having examined the material on the record, the Magistrate
having taken cognizance issued process on 9.2.2011, and while doing so,
recorded the following observations in the penultimate paragraphs of
summoning order dated 9.2.2011:
“From the analysis of evidence of all above mentioned witnesses
prima facie it appears that after investigation, on the basis of
evidence available in the case diary when this incident occurred
at that time four members were present in the house – Dr. Rajesh
Talwar, Dr. Nupur Talwar, Aarushi and servant Hem Raj;
Aarushi and Hem Raj the two out four were found dead. In the
case diary there is no such evidence from which it may appear
that some person had made forcible entry and there is to evidence
regarding involvement of the servants. In the night of the
incident internet was switched on and off in the house in regard
to which this evidence is available in the case diary that it was
switched on or off by some person. Private parts of deceased
Aarushi were cleaned and deceased Hem Raj was dragged in
injured condition from the flat of Dr. Rajesh Talwar up to the
terrace and the terrace was locked. Prior to 15.5.2008 terrace was
not locked. According to documents available on the case diary
blood stains were wiped off on the staircase, both the deceased
were slit with the help of a surgical instrument by surgically
trained persons and shape of injury on the head and forehead was
V-shaped and according to the evidence available in the case
diary that appeared to have been caused with a gold stick. A
person coming from outside, during the presence of Talwar
couple in the house could have neither used the internet nor could
have taken the dead body of deceased Hem Raj to the terrace and
then locked when the Talwar couple was present in the house.
On the basis of evidence available in the case diary footprints
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stained with blood were found in the room of Aarushi but outside
that room bloodstained footprints were not found. If the assailant
would go out after committing murder then certainly his
footprints would not be confined up to the room of Aarushi and
for an outsider it is not possible that when Talwar couple were
present in the house he would use liquor or would try to take dead
body on the terrace. Accused after committing the offence would
like to run away immediately so that no one could catch him.
On the basis of evidence of all the above witnesses and
circumstantial evidence available in case diary during
investigation it was expected from the investigating officer to
submit charge-sheet against Dr. Rajesh Talwar and Dr. Nupur
Talwar. In such type of cases when offence is committed inside a
house, there direct evidence cannot be expected. Here it is
pertinent to mention that CBI is the highest investigating agency
of the country in which the public of the country has full
confidence. Whenever in a case if any one of the investigating
agencies of the country remained unsuccessful then that case is
referred to CBI for investigation. In such circumstances it is
expected of CBI that applying the highest standards, after
investigation it should submit such a report before the court
which is just and reasonable on the basis of evidence collected in
investigation, but it was not done so by the CBI which is highly
disappointing. If I draw a conclusion from the circumstances of
case diary, then I find that in view of the facts, the conclusion of
the investigating officer that on account of lack of evidence, case
may be closed; does not appear to be just and proper. When
offence was committed in side a house, on the basis of evidence
received from case diary, a link is made from these
circumstances, and these links are indicating prima facie the
accused Dr. Rajesh Talwar and Dr. Nupur Talwar to be guilty.
The evidence of witness Shoharat that Dr. Rajesh Talwar asked
him to paint the wooden portion of a wall between the rooms of
Aarushi and Dr. Rajesh Talwar, indicates towards the conclusion
that he wants to temper with the evidence. From the evidence 3
so many in the case diary, prima facie evidence is found in this
regard. Therefore in the light of above evidences conclusion of
investigating officer given in the final report deserve to be
rejected and there is sufficient basis for taking prima facie
cognizance against Dr. Rajesh Talwar and Dr. Nupur Talwar for
committing murder of deceased Aarushi and Hem Raj and for
tempering with the proof. At this stage, the principle of law laid
down by Hon’ble Supreme Court in the case of Jugdish Ram vs.
State of Rajasthan reported in 2004 AIR 1734 is very important
wherein the Hon’ble Supreme Court held that investigation is the
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job of Police and taking of cognizance is within the jurisdiction
of the Magistrate. If on the record, this much of evidence is
available that prima facie cognizance can be taken then the
Magistrate should take cognizance, Magistrate should be
convinced that there is enough basis for further proceedings
rather for sufficient basis for proving the guilt.”
15. In order to canvass the primary ground raised for assailing the order of
the Magistrate dated 9.2.2011, it was submitted, that the Magistrate would have
arrived at a conclusion, different from the one drawn in the order dated
9.2.2011, if the matter had been examined in its correct perspective, by taking a
holistic view of the statements and materials recorded during investigation. It is
sought to be canvassed, that a perusal of the impugned order reveals, that too
much emphasis was placed on certain incorrect facts, and further, certain vital
and relevant facts and materials were overlooked. In sum and substance it was
submitted, that if the factual infirmities were corrected, and the facts
overlooked were given due weightage, the conclusions drawn by the Magistrate
in the order dated 9.2.2011, would be liable to be reversed. To appreciate the
instant contention advanced at the hands of the learned counsel for the
petitioners, I am summarizing hereunder, the factual aspects highlighted by the
learned counsel for the petitioner during the course of hearing:-
Firstly, it was submitted, that the inference drawn by the Magistrate to the
effect, that there was no outsider other than Dr. Rajesh Talwar, Dr. Nupur
Talwar, Aarushi Talwar and Hemraj in house no.L-32, Jalvayu Vihar, Sector
25, Noida, on the fateful day, is erroneous. It was submitted, that the said
inference was drawn under the belief, that there was no forceful entry into the
premises in question. To canvass the point, learned counsel drew the attention
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of this Court to the site plan of the flat under reference, which had been
prepared by the U.P. Police (during the course of investigation by the U.P.
Police), and compared the same with, the site plan prepared by the CBI (after
the CBI took over investigation). It was pointed out, that a reference to the
correct site plan would reveal, that there could have been free access, to and
from the residence of Talwars, through Hemraj’s room.
Secondly, it was pointed out, after extensively relying upon the statement of
Bharti, that the grill and mash door latched from the outside clearly evidenced,
that after committing the crime the culprits had bolted the premises from
outside. The absurdity in the inference drawn by the Magistrate, it was
submitted, was obvious from the fact, that the actual perpetrator of the murders,
while escaping from the scene of occurrence, had bolted the Talwars from
outside. It was also pointed out, that the iron mashing/gauze on the door which
was bolted from outside, would make it impossible for an insider, to bolt the
door from outside.
Thirdly, according to the learned counsel, the impression recorded in the
investigation carried out by the CBI reveals, that the stairway leading to the
terrace was from inside the flat (of the Talwars), was erroneous. This inference
was sought to be shown to have been incorrectly recorded, as the stairs leading
to the terrace were from outside the flat, i.e., from the common area of the
apartment complex beyond the outermost grill-door leading into the house
no.L-32, Jalvayu Vihar, Sector 25, Noida. It was therefore submitted, that
under no circumstances Dr. Rajesh Talwar or Dr. Nupur Talwar could be
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linked to the murder of Hemraj, since the body of Hemraj was found at a place,
which had no internal connectivity from within the flat of the Talwars.
Fourthly, as noticed above, since the flat of the Talwars was bolted from the
outside, neither Dr. Rajesh Talwar nor Dr. Nupur Talwar could have taken the
body of Hemraj to the terrace, even if the inference drawn by the CBI, that the
murder of Hemraj was committed at a place different from the place from
where his body was found, is to be accepted as correct. It is sought to be
suggested, that the accused cannot, in any case, be associated with the murder
of Hemraj. And since, both murders were presumably the handiwork of the
same perpetrator(s), the accused could not be associated with the murder of
Aarushi Talwar as well.
Fifthly, substantial material was placed before the Court to suggest that the
purple colored pillow cover belonging to Krishna Thadarai, was found smeared
with the blood of Hemraj. In order to substantiate the instant contention
reference was made to the seizure memo pertaining to Krishna Thadarai’s
pillow cover, and thereupon, the report of the CFSL dated 23.6.2008, as also,
the report of the CFSL (Bio Division) dated 30.6.2008 depicting, that the blood
found on the pillow cover was of human origin. It was the vehement contention
of the learned counsel for the petitioner, that Krishna Thadarai could not have
been given a clean chit, when the blood of Hemraj was found on his pillow
cover. It is necessary to record, that a similar submission made before the High
Court was turned down by the High Court, on the basis of a letter dated
24.3.2011 (even though the same was not a part of the charge papers). It was
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submitted, that the aforesaid letter could not have been taken into consideration
while examining the veracity of the inferences drawn by the Magistrate. In
order to support the instant contention, it was also vehemently submitted, that
during the course of investigation, neither the U.P. Police nor the CBI, found
blood of Hemraj on the clothes of either Dr. Rajesh Talwar or Dr. Nupur
Talwar. The presence of the blood of Hemraj on the pillow cover of Krishna
Thadarai and the absence of the blood of Hemraj on the apparel of Dr. Rajesh
Talwar and Dr. Nupur Talwar, according to learned counsel for the petitioners,
not only exculpates the accused identified in the Magistrate’s order dated
9.2.2011, but also reveals, that the investigation made by the U.P. Police/CBI
besides being slipshod and sloppy, can also be stated to have been carried on
without due application of mind.
Sixthly, in continuation of the preceding issue canvassed on behalf of the
petitioners, it was submitted, that the finding recorded by the CBI in its closure
report, that DNA of none of the servants was found on any of the exhibits
collected from the scene of crime, was wholly fallacious. The Magistrate
having assumed the aforesaid factually incorrect position, exculpated all the
servants of blame, in respect of the twin murders of Aarushi Talwar and
Hemraj. It was submitted, that as a matter of fact, scientific tests shorn of
human considerations, clearly indicate the involvement of Krishna Thadarai
with the crime under reference. In this behalf the Court’s attention was also
drawn to the narco analysis, brain mapping and polygraph tests conducted on
Krishna Thadarai.
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Seventhly, the investigating agency, it was contended, was guilty of not taking
the investigative process to its logical conclusion. In this behalf it was
submitted, that finger prints were found on a bottle of Ballantine Scotch
Whiskey, found on the dining table, in the Talwar flat. The accused, according
to learned counsel, had requested the investigating agency to identify the
fingerprints through touch DNA test. The accused had also offered to bear the
expenses for the same. According to the learned counsel, the identification of
the fingerprints on the bottle, would have revealed the identity of the
perpetrator(s) to the murders of Aarushi Talwar and Hemraj. It is therefore
sought to be canvassed, that the petitioner Dr. Nupur Talwar and her husband
Dr. Rajesh Talwar, had unfairly been accused of the crime under reference,
even though there was material available to determine the exact identity of the
culprit(s) in the matter.
Eighthly, it was submitted, that footprints were found in the bedroom of
Aarushi Talwar, i.e., from the room where her dead body was recovered. These
footprints according to learned counsel, did not match the footwear impressions
of shoes and slippers of Dr. Rajesh Talwar and Dr. Nupur Talwar. This
according to the learned counsel for the petitioners also indicates, that neither
Dr. Rajesh Talwar nor Dr. Nupur Talwar were involved in the murder of their
daughter Aarushi Talwar. The murderer, according to learned counsel, was an
outsider. And it was the responsibility of the CBI to determine the identity of
such person(s) whose footwear matched the footprints found in the room of the
Aarushi Talwar. Lack of focused investigation in the instant matter, according
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to the learned counsel for the petitioners, had resulted in a gross error at the
hands of the Magistrate, who has unfairly summoned Dr. Rajesh Talwar and
Dr. Nupur Talwar as the accused, rather than the actual culprit(s).
Ninthly, learned counsel for the petitioner also referred to the post mortem
report of Aarushi Talwar dated 16.5.2008, and in conjunction therewith the
statement of Dr. Sunil Kumar Dhore dated 18.7.2008, the report of the High
Level Eight Member Expert Body dated 9.9.2008 (of which Dr. Sunil Kumar
Dhore was a member), and the further statements of Dr. Sunil Kumar Dhore
dated 3.10.2008, 30.9.2009 and 28.5.2010. Based thereon, learned counsel
submitted, that in the post mortem report conducted by Dr. Sunil Kumar Dhore,
he had expressly recorded NAD (No Abnormality Detected) against the column
at serial no.7, pertaining to the private parts of Aarushi Talwar. It was
submitted, that the aforesaid position came to be substantially altered by the
subsequent oral statements made by Dr. Sunil Kumar Dhore. It was submitted,
that the different factual position narrated by Dr. Sunil Kumar Dhore,
subsequent to the submission of the post mortem report, cannot be taken into
consideration. Viewed from the instant perspective, it was also submitted, that
the investigating agencies utterly failed in carrying out a disciplined and proper
investigation. It was also asserted, that Dr. Sunil Kumar Dhore had been
persuaded to turn hostile to the contents of his own document, i.e., the post
mortem report dated 16.5.2008. Even though originally Dr. Sunil Kumar Dhore
found, that there was no abnormality detected in the private parts of Aarushi
Talwar, after the lapse of two years his supplementary statements depict a
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number of abnormalities. It was submitted, that the Magistrate having referred
to the last of such statements dated 25.5.2010, inferred therefrom, that the
private parts of Aarushi Talwar had been cleaned after her murder. It was
submitted, that the absurdity and improbability of the assumption could be
established from the fact, that the white discharge found from the vagina of
Aarushi Talwar, was sent for pathological examination, which showed that no
spermatozoa was detected therein. The instant inference of the Magistrate,
according to learned counsel, had resulted in grave miscarriage of justice.
Tenthly, it was contended, that the dimension of the injury on the heads of
Aarushi Talwar and Hemraj, was stated to match with the dimension of a 5 iron
golf club. It was pointed out, that the 5 iron golf club recovered from the
premises of the Talwars, did not have any traces of blood. It was submitted,
that the said golf club as a possible weapon of offence, was introduced by the
second team of the CBI in September/October 2009. The Magistrate, according
to learned counsel, had erroneously recorded in the impugned order dated
9.2.2011, that experts had opined that the injuries in question (on the heads of
Aarushi Talwar and Hemraj) were possible with the golf club in question. It
was sought to be highlighted, that no expert had given any such opinion during
the entire investigative process, and as such, the finding recorded by the
Magistrate was contrary to the record.
Eleventhly, it was asserted, that the Magistrate ignored to take into
consideration, the fact that the clothes of Dr. Rajesh Talwar were found only
with the blood of Aarushi Talwar. But it was noticed, that there was no blood
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of Aarushi Talwar on the clothes of Dr. Nupur Talwar. This fact is also
erroneous because the blood of Aarushi Talwar was actually found on the
clothes of Dr. Nupur Talwar also. According to learned counsel, the discovery
of blood of Aarushi Talwar on the clothes of her parents was natural. What is
important, according to learned counsel, is the absence of blood of Hemraj, on
the clothes of the accused. It was submitted, that the prosecution had never
denied, that the blood of Hemraj was not found on the clothes of either Dr.
Rajesh Talwar or Dr. Nupur Talwar. This factual position, for the same reasons
as have been indicated at serial no. fourthly above establishes the innocence of
the accused in the matter.
16. Just as in the case of the reasons depicted in the order of the Magistrate
(based on the statements recorded during the course of investigation and the
documents and other materials placed before her), the factual submissions
advanced at the hands of the learned counsel for the petitioners (noticed in the
foregoing paragraph), cannot be placed on the pedestal of reliable evidence. It
is only when statements are recorded in defence, which are tested by way of
cross examination, and only after documents and material relied upon (in
defence), are proved in accordance with the law, the same would constitute
evidence, which can constitute a basis, for determining the factual position in
the controversy. It is only on the basis of such acceptable evidence, that final
conclusions can be drawn. That stage has not arisen. Even though the
demeanor of learned counsel representing the petitioners was emphatic, that no
other inference beside the one suggested by them was possible, I am of the
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view, that the stage is not yet right for such emphatic conclusions. Just as the
learned counsel for the petitioner had endeavored to find fault with the factual
inferences depicted in the order dated 9.2.2011 (which constituted the basis of
issuing process), learned counsel for the CBI submitted, that the factual
foundation raised by the petitioner (details whereof have been summarized
above) were based on surmises and conjectures
. Even though I have recorded a
summary of the factual basis, on which the learned counsel for the petitioner
have based their contentions, I am intentionally not recording the reasons
whereby their veracity was assailed. That then, would have required me to
further determine, which of the alternative positions were correct. I am of the
view, that such an assessment at the present stage would be wholly
inappropriate. My dealing with the factual contours of the present controversy,
at a juncture well before evidence has been recorded by the trial court, would
have adverse consequences against one or the other party. Even though, while
dealing with issues as in the instant case, High Courts and this Court have
repeatedly observed in their orders, that the trial court would determine the
controversy uninfluenced by observations made. Yet, inferences and
conclusions drawn by superior courts, on matters which are pending
adjudication before trial courts (or other subordinate courts) cannot be easily
brushed aside. I shall, therefore, endeavor not to pre-maturely record any
inferences which could/would prejudice one or the other side.
17. Having recorded the aforesaid observations, in respect of the
submissions advanced at the hands of the learned counsel for the petitioner, I
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shall now proceed to determine the validity of the order passed by the
Magistrate on 9.2.2011, as also, the legitimacy of the defences raised by the
learned counsel for the petitioner. Although it would seem, that there would be
a common answer to the proposition canvassed, I am of the view, after having
heard learned counsel for the rival parties, that the issue canvassed ought to
compartmentalized under two heads. Firstly, I shall examine the validity of the
order dated 9.2.2011, and thereafter, I will deal with the substance of the
defences raised at the hands of the petitioner. That is how the matter is being
dealt with in the following paragraphs.
18. The basis and parameters of issuing process, have been provided for in
Section 204 of the Code of Criminal Procedure. Section 204 aforementioned is
extracted hereunder :
“
204. Issue of process –
(1) If in the opinion of a Magistrate taking cognizance of an offence
there is sufficient ground for proceeding, and the case appears to
be –
(a) a summons-case, he shall issue his summons for the
attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit,
a summons, for causing the accused to be brought or to
appear at a certain time before such Magistrate of (if he
has no jurisdiction himself) some other Magistrate having
jurisdiction.
(2) No summons or warrant shall be issued against the accused under
sub-section (1) until a list of the prosecution witnesses has been
filed.
(3) In a proceeding instituted upon a complaint made in writing,
every summons or warrant issued under sub-section (1) shall be
accompanied by a copy of such complaint.
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(4) When by any law for the time being in force any process-fees or
other fees are payable, no process shall be issued until the fees
are paid and, if such fees are not paid within a reasonable time,
the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of
section 87.
The criterion which needs to be kept in mind by a Magistrate issuing process,
have been repeatedly delineated by this Court. I shall therefore, first examine
the declared position of law on the subject. Reference in this behalf may be
made to the decision rendered by this Court in Cahndra Deo vs. Prokash
Chandra Bose alias Chabi Bose and Anr., AIR 1963 SC 1430, wherein it was
observed as under :
“(8) Coming to the second ground, we have no hesitation is holding
that the test propounded by the learned single judge of the High
Court is wholly wrong. For determining the question whether
any process is to be issued or not, what the Magistrate has to be
satisfied is whether there is “sufficient ground for proceeding”
and not whether there is sufficient ground for conviction.
Whether the evidence is adequate for supporting the conviction
can be determined only at the trial and not at the stage of enquiry.
A number of decisions were cited at the bar in which the question
of the scope of the enquiry under Section 202 has been
considered. Amongst those decisions are : Parmanand
Brahmachari v. Emperor, AIR 1930 Pat 20; Radha Kishun Sao
v. S.K. Misra, AIR 1949 Pat 36; Ramkisto Sahu v. State of
Bihar, AIR 1952 Pat 125; Emperor v. J.A. Finan, AIR 1931
Bom 524 and Baidya Nath Singh v. Muspratt, ILR 14 Cal 141.
In all these cases, it has been held that the object of the provisions
of Section 202 is to enable the Magistrate to form an opinion as
to whether process should be issued or not and to remove from
his mind any hesitation that he may have felt upon the mere
perusal of the complaint and the consideration of the
complainant’s evidence on oath. The courts have also pointed
out in these cases that what the Magistrate has to see is whether
there is evidence in support of the allegations of the complainant
and not whether the evidence is sufficient to warrant a conviction.
The learned Judges in some of these cases have been at pains to
observe that an enquiry under Section 202 is not to be likened to
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a trial which can only take place after process is issued, and that
there can be only one trial. No doubt, as stated in sub-section (1)
of Section 202 itself, the object of the enquiry is to ascertain the
truth or falsehood of the complaint, but the Magistrate making the
enquiry has to do this only with reference to the intrinsic quality
of the statements made before him at the enquiry which would
naturally mean the complaint itself, the statement on oath made
by the complainant and the statements made before him by
persons examined at the instance of the complainant.”
(emphasis is mine)
The same issue was examined by this Court in M/s. India Carat Pvt. Ltd. vs.
State of Karnataka and Anr., (1989) 2 SCC 132, wherein this Court held as
under :
“(16) The position is, therefore, now well settled that upon receipt of a
police report under Section 173(2) a Magistrate is entitled to take
cognizance of an offence under Section 190(1)(b) of the Code
even if the police report is to the effect that no case is made out
against the accused. The Magistrate can take into account the
statements of the witnesses examined by the police during the
investigation and take cognizance of the offence complained of
and order the issue of process to the accused. Section 190(1)(b)
does not lay down that a Magistrate can take cognizance of an
offence only if the investigating officer gives an opinion that the
investigation has made out a case against the accused. The
Magistrate can ignore the conclusion arrived at by the
investigating officer and independently apply his mind to the
facts emerging from the investigation and take cognizance of the
case, if he thinks fit, in exercise of his powers under Section
190(1)(b) and direct the issue of process to the accused. The
Magistrate is not bound in such a situation to follow the
procedure laid down in Sections 200 and 202 of the Code for
taking cognizance of a case under Section 190(1)(a) though it is
open to him to act under Section 200 or Section 202 also. The
High Court was, therefore, wrong in taking the view that the
Second Additional Chief Metropolitan Magistrate was not
entitled to direct the registration of a case against the second
respondent and order the issue of summons to him.
(17) The fact that in this case the investigation had not originated from
a complaint preferred to the Magistrate but had been made
pursuant to a report given to the police would not alter the
situation in any manner. Even if the appellant had preferred a
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compliant before the learned Magistrate and the Magistrate had
ordered investigation under Section 156(3), the police would
have had to submit a report under Section 173(2). It has been
held in Tula Ram v. Kishore Singh, (1977) 4 SCC 459, that if
the police, after making an investigation, send a report that no
case was made out against the accused, the Magistrate could
ignore the conclusion drawn by the police and take cognizance of
a case under Section 190(1)(b) and issue process or in the
alternative he can take cognizance of the original complaint and
examine the complainant and his witnesses and thereafter issue
process to the accused, if he is of opinion that the case should be
proceeded with.”
(emphasis is mine)
The same issue was examined by this Court in Jagdish Ram vs. State of
Rajasthan and Anr., (2004) 4 SCC 432, wherein this Court held as under:
“(10) The contention urged is that though the trial court was directed to
consider the entire material on record including the final report
before deciding whether the process should be issued against the
appellant or not, yet the entire material was not considered.
From perusal of order passed by the Magistrate it cannot be said
that the entire material was not taken into consideration. The
order passed by the Magistrate taking cognizance is a wellwritten
order. The order not only refers to the witnesses recorded
by the Magistrate under Sections 200 and 202 of the Code but
also sets out with clarity the principles required to be kept in
mind at the stage of taking cognizance and reaching a prima facie
view. At this stage, the Magistrate had only to decide whether
sufficient ground exists or not for further proceeding in the
matter. It is well settled that notwithstanding the opinion of the
police, a Magistrate is empowered to take cognizance if the
material on record makes out a case for the said purpose. The
investigation is the exclusive domain of the police. The taking of
cognizance of the offence is an area exclusively within the
domain of a Magistrate. At this stage, the Magistrate has to be
satisfied whether there is sufficient ground for proceeding for
proceeding and not whether there is sufficient ground for
conviction. Whether the evidence is adequate for supporting the
conviction, can be determined only at the trial and not at the stage
of inquiry. At the stage of issuing the process to the accused, the
Magistrate is not required to record reasons. (Dy. Chief
Controller of Imports & Exports v. Roshanlal Agarwal, (2003) 4
SCC 139).”
(emphasis is mine)
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All along having made a reference to the words “there is sufficient ground to
proceed” it has been held by this Court, that for the purpose of issuing process,
all that the concerned Court has to determine is, whether the material placed
before it “is sufficient for proceeding against the accused”. The observations
recorded by this Court extracted above, further enunciate, that the term
“sufficient to proceed” is different and distinct from the term “sufficient to
prove and established guilt”. Having taken into consideration the factual
position based on the statements recorded under Section 161 of Code of
Criminal Procedure (as also, under Section 164 thereof), and the documents
appended to the charge sheet, as also, the other materials available on the file; I
have no doubt whatsoever in my mind, that the Magistrate was fully justified in
issuing process, since the aforesaid statements, documents and materials, were
most certainly sufficient to proceed against the accused. Therefore, the order
issuing process under Section 204 passed by the Magistrate on 9.2.2011 cannot
be faulted on the ground, that it had been passed in violation of the provisions
of Code of Criminal Procedure, or in violation of the declared position of law
on the subject. Despite my aforesaid conclusion, I reiterate, that the material
taken into consideration by the Magistrate will have to be substituted by cogent
evidence recorded during the trial; before any inferences, assumptions, views
and deductions drawn by the Magistrate, can be made the basis for implicating
the accused. As the matter proceeds to the next stage, all the earlier
conclusions will stand effaced, and will have to be redrawn, in accordance with
law.
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19. Rolled along with the contention in hand, it was the submission of
learned counsel representing the petitioner, that if the defences raised by the
petitioner are taken into consideration, the entire case set up by the prosecution
would fall. I shall now advert to the defences raised on behalf of the petitioner.
All the defences raised on behalf of the petitioner have already been
summarized above. Based on the said defences it was sought to be canvassed,
that the Magistrate (while passing the order dated 9.2.2011) had taken into
consideration some facts incorrectly (while the factual position was otherwise),
and certain vital facts were overlooked. On the subject under reference, it
would first be appropriate to examine the settled legal position. In this behalf
reference may be made to the decision rendered by this Court in Cahndra Deo
vs. Prokash Chandra Bose alias Chabi Bose and Anr., AIR 1963 SC 1430,
wherein it was observed as under :
“(7) Taking the first ground, it seems to us clear from the entire
scheme of Ch. XVI of the Code of Criminal Procedure that an
accused person does not come into the picture at all till process is
issued. This does not mean that he is precluded from being
present when an enquiry is held by a Magistrate. He may remain
present either in person or through a counsel or agent with a view
to be informed of what is going on. But since the very question
for consideration being whether he should be called upon to face
an accusation, he has no right to take part in the proceedings nor
has the Magistrate any jurisdiction to permit him to do so. It
would follow from this, therefore, that it would not be open to the
Magistrate to put any question to witnesses at the instance of the
person named as accused but against whom process has not been
issued; nor can he examine any witnesses at the instance of such
a person. Of course, the Magistrate himself is free to put such
questions to the witnesses produced before him by the
complainant as he may think proper in the interests of justice.
But beyond that, he cannot go. It was, however, contended by
Mr. Sethi for respondent No.1 that the very object of the
provisions of Ch. XVI of the Code of Criminal Procedure is to
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prevent an accused person from being harassed by a frivolous
complaint and, therefore, power is given to a Magistrate before
whom complaint is made to postpone the issue of summons to the
accused person pending the result of an enquiry made either by
himself or by a Magistrate subordinate to him. A privilege
conferred by these provisions, can according to Mr. Sethi, be
waived by the accused person and he can take part in the
proceedings. No doubt, one of the objects behind the provisions
of Section 202, Cr. P.C. is to enable the Magistrate to scrutinize
carefully the allegations made in the complaint with a view to
prevent a person named therein as accused from being called
upon to face an obviously frivolous complaint. But there is also
another object behind this provision and it is to find out what
material there is to support the allegations made in the complaint.
It is the bounden duty of the Magistrate while making an enquiry
to elicit all facts not merely with a view to protect the interests of
an absent accused person, but als with a view to bring to book a
person or persons against whom grave allegations are made.
Whether the complaint is frivolous or not has, at that stage,
necessarily to be determined on the basis of the material placed
before him by the complainant. Whatever defence the accused
may have can only be enquired into at the trial. An enquiry
under Section 202 can in no sense be characterized as a trial for
the simple reason that in law there can be but one trial for an
offence. Permitting an accused person to intervene during the
enquiry would frustrate its very object and that is why the
legislature has made no specific provision permitting an accused
person to take part in an enquiry. It is true that there is no direct
evidence in th case before us that the two persons who were
examined as court witnesses were so examined at the instance of
respondent No.1 but from the fact that they were persons who
were alleged to have been the associates of respondent No.1 in
the first information report lodged by Panchanan Roy and who
were alleged to have been arrested on the spot by some of the
local people, they would not have been summoned by the
Magistrate unless suggestion to that effect had been made by
counsel appearing for respondent No.1. This inference is
irresistible and we hold that on this ground, the enquiry made by
the enquiring Magistrate is vitiated. In this connection, the
observations of this court in Vadilal Panchal v. Dattatraya
Dulaji, (1961) 1 SCR 1 at p.9 : (AIR 1960 SC 1113 at p. 1116)
may usefully be quoted :
“The enquiry is for the purpose of ascertaining the truth or
falsehood of the complaint; that is, for ascertaining
whether there is evidence in support of the complaint so as
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to justify the issue of process and commencement of
proceedings against the person concerned. The section
does not say that a regular trial for adjudging the guilt or
otherwise of the person complained against should take
place at that stage, for the person complained against can
be legally called upon to answer the accusation made
against him only when a process has issued and he is put
on trial.”
(emphasis is mine)
Recently an examination of the defence(s) of an accused, at the stage of issuing
process, came to be examined by this Court in CREF Finance Ltd. vs. Shree
Shanthi Homes (P) Ltd. and Anr., (2005) 7 SCC 467, wherein this Court held
as under :
“10. In the instant case, the appellant had filed a detailed complaint
before the Magistrate. The record shows that the Magistrate took
cognizance and fixed the matter for recording of the statement of
the complainant on 1-6-2000. Even if we assume, though that is
not the case, that the words “cognizance taken” were not to be
found in the order recorded by him on that date, in our view that
would make no difference. Cognizance is taken of the offence
and not of the offender and, therefore, once the court on perusal
of the complaint is satisfied that the complaint discloses the
commission of an offence and there is no reason to reject the
complaint at that stage, and proceeds further in the matter, it must
be held to have taken cognizance of the offence. One should not
confuse taking of cognizance with issuance of process.
Cognizance is taken at the initial stage when the Magistrate
peruses the complaint with a view to ascertain whether the
commission of any offence is disclosed. The issuance of process
is at a later stage when after considering the material placed
before it, the court decides to proceed against the offenders
against whom a prima facie case is made out. It is possible that a
complaint may be filed against several persons, but the
Magistrate may choose to issue process only against some of the
accused. It may also be that after taking cognizance and
examining the complainant on oath, the court may come to the
conclusion that no case is made out for issuance of process and it
may reject the complaint. It may also be that having considered
the complaint, the court may consider it appropriate to send the
complaint to the police for investigation under Section 156(3) of
the Code of Criminal Procedure. We can conceive of many other
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situations in which a Magistrate may not take cognizance at all,
for instance, a case where he finds that the complaint is not made
by the person who in law can lodge the complaint, or that the
complaint is not entertainable by that court, or that cognizance of
the offence alleged to have been committed cannot be taken
without the sanction of the competent authority, etc. These are
cases where the Magistrate will refuse to take cognizance and
return the complaint to the complainant. But if he does not do so
and proceeds to examine the complainant and such other
evidence as the complainant may produce before him then, it
should be held to have taken cognizance of the offence and
proceeded with the inquiry. We are, therefore, of the opinion that
in the facts and circumstances of this case, the High Court erred
in holding that the Magistrate had not taken cognizance, and that
being a condition precedent, issuance of process was illegal.
11. Counsel for the respondents submitted that cognizance even if
taken was improperly taken because the Magistrate had not
applied his mind to the facts of the case. According to him, there
was no case made out for issuance of process. He submitted that
the debtor was the Company itself and Respondent 2 had issued
the cheques on behalf of the Company. He had subsequently
stopped payment of those cheques. He, therefore, submitted that
the liability not being the personal liability of Respondent 2, he
could not be prosecuted, and the Magistrate had erroneously
issued process against him. We find no merit in the submission.
At this stage, we do not wish to express any considered opinion
on the argument advanced by him, but we are satisfied that so far
as taking of cognizance is concerned, in the facts and
circumstances of this case, it has been taken properly after
application of mind. The Magistrate issued process only after
considering the material placed before him. We, therefore, find
that the judgment and order of the High Court is unsustainable
and must be set aside. This appeal is accordingly allowed and the
impugned judgment and order of the High Court is set aside. The
trial court will now proceed with the complaint in accordance
with law from the stage at which the respondents took the matter
to the High Court.”
(emphasis is mine)
A perusal of the legal position expressed by this Court reveals the unambiguous
legal position, that possible defence(s) of an accused need not be taken into
consideration at the time of issuing process. There may be a situation, wherein,
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the defence(s) raised by an accused is/are factually unassailable, and the same
are also not controvertable, it would, demolish the foundation of the case raised
by the prosecution. The Magistrate may examine such a defence even at the
stage of taking cognizance and/or issuing process. But then, this is not the
position in the present controversy. The defences raised by the learned counsel
for the petitioner are factual in nature. As against the aforesaid defences,
learned counsel for the CBI has made detailed submissions. In fact, it was the
submission of the learned counsel for the CBI, that the defences raised by the
petitioner were merely conjectural. Each of the defences was contested and
controverted, on the basis of material on the file. In this case it cannot be said
that the defences raised were unassailable and also not controvertable. As
already noticed above, I do not wish to engage myself in the instant disputed
factual controversy, based on assertions and denials. The factual position is yet
to be established on the basis of acceptable evidence. All that needs to be
observed at the present juncture is, that it was not necessary for the Magistrate
to take into consideration all possible defences, which could have been raised
by the petitioner, at the stage of issuing process. Defences as are suggested by
the learned counsel for the petitioner, which were based on factual inferences,
certainly ought not to have been taken into consideration. Thus viewed, I find
no merit in the instant contention advanced at the hands of the learned counsel
for the petitioner. The instant determination of mine, should not be treated as a
rejection of the defences raised on behalf of the petitioner. The defences raised
on behalf of the accused will have to be substantiated through cogent evidence
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and thereupon, the same will be examined on merits, for the exculpation of the
accused, if so made out.
20. The submissions dealt with hereinabove constituted the primary basis of
challenge, on behalf of the petitioner. Yet, just before the conclusion of the
hearing of the matter, learned counsel representing the petitioner stated, that the
petitioner would be satisfied even if, keeping in mind the defences raised on
behalf of the petitioner, further investigation could be ordered. This according
to learned counsel will ensure, that vital aspects of the controversy which had
remained unraveled, will be brought out with the possibility of identifying the
real culprits. This according to the learned counsel for the petitioner would
meet the ends of justice.
21. The contention advanced at the hands of the learned counsel for the
petitioner, as has been noticed in the foregoing paragraph, seems to be a last
ditch effort, to savage a lost situation. The plea for further investigation, was
raised by Dr. Rajesh Talwar in his protest petition dated 25.1.2011. The prayer
for further investigation, was declined by the Magistrate in her order dated
9.2.2011. Dr. Rajesh Talwar who had raised the aforesaid prayer, did not assail
the aforestated determination. The plea for further investigation therefore
attained finality. Dr. Nupur Talwar, the petitioner herein, did not make a
prayer for further investigation, when she assailed the order passed by the
Magistrate dated 9.2.2011 before the High Court (vide Criminal Revision
Petition no.1127 of 2011). Having not pressed the aforesaid prayer before the
High Court, it is not open to the petitioner Dr. Nupur Talwar, to raise the same
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before this Court, in a proceeding which emerges out of the determination
rendered by the High Court (in Criminal Revision Petition no.1127 of 2011). I,
therefore, find no merit in the instant contention advanced by the learned
counsel for the petitioner.
22. I shall now embark upon the last aspect of the matter, namely, the
propriety of the petitioner in filing the instant Review Petition. The parameters
within which an order taking cognizance and/or an order issuing process needs
to be passed, have already been dealt with above. It is apparent from my
determination, that the matter of taking cognizance and/or issuance of notice, is
based on the satisfaction of the Magistrate. In the conclusions recorded
hereinabove, while making a reference to past precedent, I have concluded, that
it is not essential for the concerned Magistrate to record reasons or to pass a
speaking order demonstrating the basis of the satisfaction, leading to issuance
of process. Despite the same, the Magistrate while issuing process vide order
dated 9.2.2011, had passed a detailed reasoned order. The order brings out the
basis of the Magistrate’s satisfaction. The aforesaid order dated 9.2.2011 came
to be assailed by the petitioner before the High Court of judicature at Allahabad
through Criminal Revision Petition no.1127 of 2011. The High Court having
concluded, that the satisfaction of the Magistrate was well found, dismissed the
Revision Petition vide an order dated 18.3.2011. The High Court expressly
affirmed that the order dated 9.2.2011 had been passed on the basis of record
available before the High Court, and on the basis of the Magistrate’s
satisfaction, that process deserved to be issued. The petitioner approached this
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Court by filing Special Leave Petition (Criminal) no.2982 of 2011 (renumbered
as Criminal Appeal no. 16 of 2011). While dismissing the aforesaid Criminal
Appeal vide order dated 6.1.2012 this Court in paragraph 11 observed as
under :
“…Obviously at this stage we cannot weigh evidence. Looking into the
order of Magistrate, we find that he applied his mind in coming to the
conclusion relating to taking of cognizance. The Magistrate has taken
note of the rejection report and gave his prima facie observation on the
controversy upon a consideration of the materials that surfaced in the
case. …”
(emphasis is mine)
Thereafter, the matter was disposed of, by this Court, by recording the
following observations :
“24. In the above state of affairs, now the question is what is the
jurisdiction and specially the duty of this Court in such a situation
under Article 136?
25. We feel constrained to observe that at this stage, this Court
should exercise utmost restrain and caution before interfering
with an order of taking cognizance by the Magistrate, otherwise
the holding of a trial will be stalled. The superior Courts should
maintain this restrain to uphold the rule of law and sustain the
faith of the common man in the administration of justice.
26. Reference in this connection may be made to a three Judge Bench
decision of this Court in the case of M/s India Carat Private Ltd.
vs. State of Karnataka & Anr., (1989) 2 SCC 132. Explaining
the relevant principles in paragraphs 16, Justice Natarajan,
speaking for the unanimous three Judge Bench, explained the
position so succinctly that we could rather quote the observation
as under :-
“
The position is, therefore, now well settled that upon receipt
of a police report under Section 173(2) a Magistrate is entitled
to take cognizance of an offence under Section 190(1)(b) of the
Code even if the police report is to the effect that no case is
made out against the accused. The Magistrate can take into
account the statements of the witnesses examined by the police
during the investigation and take cognizance of the offence
complained of an order the issue of process to the accused.
Section 190(1)(b) doest not lay down that a Magistrate can take
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cognizance of an offence only if the investigating officer gives
an opinion that the investigation has made out a case against
the accused. The Magistrate can ignore the conclusion arrived
at by the investigating officer; and independently apply his
mind to the facts emerging from the investigation and take
cognizance of the case, if he thinks fit, in exercise of his powers
under Section 190(1)(b) and direct the issue of process to the
accused…
”
27. These well settled principles still hold good. Considering these
propositions of law, we are of the view that we should not
interfere with the concurrent order of the Magistrate which is
affirmed by the High Court.
28. We are deliberately not going into various factual aspects of the
case which have been raised before us so that in the trial the
accused persons may not be prejudiced. We, therefore, dismiss
this appeal with the observation that in the trial which the accused
persons will face, they should not be prejudiced by any
observation made by us in this order or in the order of the High
Court or those made in the Magistrate’s order while taking
cognizance. The accused must be given all opportunities in the
trial they are to face. We, however, observe that the trial should
expeditiously held.
29. The appeal is accordingly disposed of.”
(emphasis is mine)
Unfortunately, while addressing submissions during the course of hearing no
reference whatsoever was made either to the order passed by the High Court,
and more significantly, to the order passed by this Court (dated 6.1.2012) of
which review has been sought. No error whatsoever was pointed out in the
order passed by this Court on 6.1.2012. Learned counsel for the CBI during
the course of hearing, was therefore fully justified in repeatedly canvassing,
that through the instant review petition, the petitioner was not finding fault with
the order dated 6.1.2012 (of which review has been sought), but with the order
passed by the Magistrate dated 9.2.2011. That, I may say, is correct. The order
of this Court did not fall within the realm of the petitioner’s rational
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acceptability. This, in my view, most certainly amounts to misuse of
jurisdiction of this Court. It was sufficient for this Court, while determining a
challenge to an order taking cognizance and/or issuing process to affirm, that
the Magistrate’s order was based on satisfaction. But that has resulted in the
petitioner’s lamentation. This Court has been required to pass a comprehensive
order after hearing detailed submissions for days at end, just for the petitioner’s
satisfaction. I have noticed, that every single order passed by the Magistrate,
having any repercussion, is being assailed right up to this Court. Of course, the
right to avail a remedy under law, is the right of every citizen. But such a right,
cannot extend to misuse of jurisdiction. The petitioner’s attitude expresses
discomfort at every order not acceding to her point of view. Even at the earlier
juncture, full dress arguments, as have been addressed now, had been
painstakingly advanced. Determination on the merits of the main controversy,
while dealing with the stage of cognizance and/or issuance of process, if
deliberated upon, is bound to prejudice one or the other party. It needed
extreme restraint not to deal with the individual factual aspects canvassed on
behalf of the petitioner, as have been noticed above, even though each one of
them was sought to be repudiated on behalf of the CBI. I am of the considered
view, that the very filing of the instant Review Petition was wholly uncalled
for, specially when this Court emphatically pointed out its satisfaction in its
earlier order dated 6.1.2012 (which is the subject matter of review) not only in
paragraph 11 thereof, but also, for not accepting the prayers made on behalf of
the petitioner in the subsequent paragraphs which have been extracted
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hereinabove. As of now, I would only seriously caution the petitioner from
such behaviour in future. After all, frivolous litigation takes up a large chunk
of precious court time. While the state of mind of the accused can be
understood, I shall conclude by suggesting, that the accused should henceforth
abide by the advice tendered to her, by learned counsel representing her. For,
any uncalled or frivolous proceedings initiated by the petitioner hereinafter,
may evoke exemplary costs.
23. As a matter of caution I direct the Magistrate, not to be influenced by
any observations made by the High Court or by this Court, while dealing with
the order dated 9.2.2011, specially insofar as the factual parameters are
concerned.
24. Dismissed.
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
June 7, 2012.
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
REVIEW PETITION (CRL. ) NO . 85 OF 2012
IN
CRIMINAL APPEAL NO.68 OF 2012
Nupur Talwar … Petitioner
Versus
Central Bureau of Investigation & Anr. … Respondents
O R D E R
A . K . PATNAIK , J .
I have carefully read the order of my learned brother
Khehar, J. and I agree with his conclusion that this Review
Petition will have to be dismissed, but I would like to give
my own reasons for this conclusion.
2. As the facts have been dealt with in detail in the order
of my learned brother, I have not felt the necessity of
reiterating those facts in my order, except stating the
following few facts: The Magistrate by a detailed order dated
09.02.2011 rejected the closure report submitted by the CBI
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and took cognizance under Section 190 Cr.P.C. and issued
process under Section 204, Cr.P.C. to the petitioner and her
husband, Dr. Rajesh Talwar, for the offence of murder of
their daughter Aarushi Talwar and their domestic servant
Hemraj on 16.05.2008 under Section 302/34 IPC and for
the offence of causing disappearance of evidence of offence
under Section 201/34 IPC. The order dated 09.02.2011 of
the Magistrate was challenged by the petitioner in Criminal
Revision No.1127 of 2009 before the High Court of
Judicature at Allahabad, but the High Court dismissed the
Criminal Revision by order dated 18.03.2011. The order of
the High Court was thereafter challenged by the petitioner
in S.L.P. (Crl.) No.2982 of 2011 in which leave was granted
by this Court and the S.L.P. was converted to Criminal
Appeal No.16 of 2011. Ultimately, however, by order dated
06.01.2011, this Court dismissed the Criminal Appeal and
the petitioner has filed the present Review Petition against
the order dismissing the Criminal Appeal.
3. The petitioner is aggrieved by the order dated
09.02.2011 of the Magistrate taking cognizance under
Section under Section 190 Cr. P.C. and issuing
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process under Section 204 Cr.P.C. against her and
her husband. As admittedly there are offences
committed in respect of the two deceased persons,
Aarushi and Hemraj, there cannot be any infirmity in
the order of the Magistrate taking cognizance. Hence,
the only question that we are called upon to decide is
whether the Magistrate was justified in issuing the
process to the petitioner and her husband by her
order dated 09.02.2011.
4. Sub-section (1) of Section 204 Cr.P.C. under which
the Magistrate issued the process against the
petitioner is extracted hereinbelow:
“Section 204(1). If in the opinion of a
Magistrate taking cognizance of an offence
there is sufficient ground for proceeding, and
the case appears to be—
(a) a summons-case, he shall issue his
summons for the attendance of the
accused, or
(b) a warrant-case, he may issue a
warrant, or, if he thinks fit, a
summons, for causing the accused to
be brought or to appear at a certain
time before such Magistrate or (if he
has no jurisdiction himself) some other
Magistrate having jurisdiction.”
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It is clear from sub-section (1) of Section 204, Cr.P.C. that
the Magistrate taking cognizance of an offence shall issue
the process against a person if in his opinion there is
sufficient ground for proceeding against him.
5. The standard of scrutiny of the evidence which the
Magistrate has to adopt for deciding whether or not to issue
process under Section 204 Cr.P.C. in a case exclusively
triable by the Sessions Court has been laid down by this
Court in
Kewal Krishan v. Suraj Bhan & Anr. [1980 (Supp)
SCC 499] this Court thus:
“At the stage of Sections 203 and 204,
Criminal Procedure Code in a case exclusively
triable by the Court of Session, all that the
Magistrate has to do is to see whether on a
cursory perusal of the complaint and the
evidence recorded during the preliminary
inquiry under Sections 200 and 202, Criminal
Procedure Code, there is prima facie evidence
in support of the charge levelled against the
accused. All that he has to see is whether or
not there is “sufficient ground for proceeding”
against the accused. At this stage, the
Magistrate is not to weigh the evidence
meticulously as if he were the trial court. The
standard to be adopted by the Magistrate in
scrutinising the evidence is not the same as
the one which is to be kept in view at the stage
of framing charges. This Court has held in
Ramesh Singh case
that even at the stage of
framing charges the truth, veracity and effect
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of the evidence which the complainant
produces or proposes to adduce at the trial, is
not to be meticulously judged. The standard of
proof and judgment, which is to be applied
finally before finding the accused guilty or
otherwise, is not exactly to be applied at the
stage of framing charges. A fortiori, at the
stage of Sections 202/204, if there is prima
facie evidence in support of the allegations in
the complaint relating to a case exclusively
triable by the Court of Session, that will be a
sufficient ground for issuing process to the
accused and committing them for trial to the
Court of Session.”
Thus, in a case exclusively triable by the Court of Session,
all that the Magistrate has to do at the stage of Section 204
Cr.P.C. is to see whether on a perusal of the evidence there
is “sufficient ground for proceeding” against the accused
and at this stage, the Magistrate is not required to weigh the
evidence meticulously as if he was the trial court nor is he
required to scrutinise the evidence by the same standard by
which the Sessions Court scrutinises the evidence to decide
whether to frame or not to frame charges under Section
227/228, Cr.P.C.
6.
Keeping in mind these distinctions between the
standards of scrutiny at the stages of issue of process,
framing of charges and the trial, the contentions of the
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parties can be now considered. Learned senior counsel
for the petitioner, Mr. Harish Salve, produced before us
the materials which were collected during the
investigation and submitted that had the Magistrate
considered all the relevant materials, she would have
come to the conclusion that sufficient grounds did not
exist for proceeding against the petitioner and her
husband and would have directed further investigation as
prayed by Dr. Rajesh Talwar, but unfortunately the order
dated 09.02.2011 does not disclose that the Magistrate
considered all relevant materials collected during
investigation. The relevant materials on which the
petitioner relies upon have been discussed in the order of
my learned Brother at length. Mr. Siddharth Luthra,
learned senior counsel for the CBI, on the other hand,
submitted that the entire case diary including all the
materials (statements recorded under Section 161
Cr.P.C., the
post mortem and scientific reports and
material objects) collected in the course of investigation
were placed before the Magistrate and, therefore, the
argument of Mr. Salve that the Magistrate has not looked
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into all the materials collected during investigation is
misconceived.
7.
By writing a long order dated 09.02.2011 and not
referring to some of the relevant materials on which the
petitioner relies upon, the Magistrate has exposed herself
to the criticism of learned counsel for the petitioner that
she had applied her mind only to the materials referred to
in her order and not to other relevant materials collected
in course of investigation. Sub-section (1) of Section 204,
Cr.P.C. quoted above itself does not impose a legal
requirement on the Magistrate to record reasons in
support of the order to issue a process and in
U.P.
Pollution Control Board v. Mohan Meakins Ltd. & Ors
.
[(2000) 3 SCC 745] and
Deputy Chief Controller of Improts
& Exports v. Roshallal Agarwal & Ors
. [(2003) 4 SCC 139]
this Court has held that the Magistrate is not required to
record reasons at the stage of issuing the process against
the accused. In the absence of any legal requirement in
Section 204 Cr.P.C. to issue process, it was not legally
necessary for the Magistrate to have given detailed
reasons in her order dated 09.02.2011 for issuing
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process to the petitioner and her husband Dr. Rajesh
Talwar.
8.
The fact, however, remains that the Magistrate has
given detailed reasons in the order dated 09.02.2011
issuing process and the order dated 09.02.2011 itself
does not disclose that the Magistrate has considered all
the relevant materials collected in course of investigation.
Yet from the mere fact that some of the relevant materials
on which the petitioner relies on have not been referred
to in the order dated 09.02.2011, the High Court could
not have come to the conclusion in the revision filed by
the petitioner that these relevant materials were not
considered. Moreover, this Court has held in
Smt.
Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors
.
[(1976) 3 SCC 736] that whether the reasons given by the
Magistrate issuing process under Section 202 or 204
Cr.P.C. were good or bad, sufficient or insufficient,
cannot be examined by the High Court in the revision.
All that the High Court, however, could do while
exercising its powers of revision under Section 397/401
Cr.P.C when the order issuing process under Section 204
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Cr.P.C. was under challenge was to examine whether
there were materials before the Magistrate to take a view
that there was sufficient ground for proceeding against
the persons to whom the processes have been issued
under Section 204 Cr.P.C. In the present case, the High
Court has not examined whether there were materials
before the Magistrate to take a view that there was
sufficient ground for proceeding against the petitioner
and her husband, but while hearing the Review Petition,
we have perused the relevant materials collected in the
course of the investigation and we cannot hold that the
opinion of the Magistrate that there was sufficient ground
to proceed against the petitioner and her husband under
Section 204 Cr.P.C was not a plausible view on the
materials collected in course of investigation and placed
before her along with the closure report. As we have
seen, sub-section (1) of Section 204 Cr.P.C. provides that
the Magistrate shall issue the process (summons or
warrant) if in his opinion there was sufficient ground for
proceeding and therefore so long as there are materials to
support the opinion of the Magistrate that there was
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sufficient ground for proceeding against the persons to
whom the processes have been issued, the High Court in
exercise of its revisional power will not interfere with the
same only because it forms a different opinion on the
same materials.
9.
Mr. Harish Salve, however, cited the judgment of this
Court in
State of Karnataka v. L. Muniswamy & Ors.
[(1977) 2 SCC 699] in which the High Court in exercise of
its power under Section 482 Cr.P.C. has quashed the
proceedings before the Sessions Court on the ground of
insufficiency of evidence and this Court agreed with the
view of the High Court and dismissed the appeal. The
decision of this Court in the case of
State of Karnataka v.
L. Muniswamy & Ors
. (supra) does not relate to a case at
the stage of issue of process by the Magistrate under
Section 204 Cr.P.C., and as the facts of that case
indicate, that was a case where the High Court was of the
view that the material on which the prosecution proposed
to rely against the respondents in that case was wholly
inadequate to sustain the charge against them in the
case which was pending before the Sessions Court. As
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has been clarified by this Court in
Kewal Krishan v. Suraj
Bhan & Anr.
(supra), at the stage of Section 204 Cr.P.C.
the standard to be adopted by the Magistrate in
scrutinizing the evidence is not the same as the one
which is to be kept in view at the stage of framing of
charges by the Sessions Court.
10.
The result of the aforesaid discussion is that the order
dated 09.02.2011 of the Magistrate taking cognizance
under Section 190 Cr.P.C. and issuing process against
the petitioner and her husband under Section 204
Cr.P.C. could not have been interfered with by the High
Court in the Revision filed by the petitioner. Moreover,
once the order of the Magistrate taking cognizance and
issuing process against the petitioner and her husband
was sustained, there is no scope for granting the relief of
further investigation for the purpose of finding out
whether someone other than the petitioner and her
husband had committed the offences in respect of the
deceased persons Aarushi and/or Hemraj. As has been
held by this Court in
Randhir Singh Rana v. State (Delh i
Administration)
[(1997) 1 SCC 361], once a Magistrate
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takes cognizance of an offence under Section 190 Cr.P.C.,
he cannot order of his own further investigation in the
case under Section 156(3) Cr.P.C. but if subsequently the
Sessions Court passes an order discharging the accused
persons, further investigation by the police on its own
would be permissible, which may also result in
submission of fresh charge-sheet.
11. For these reasons, I agree with my learned brother
Khehar, J. that this Review Petition has no merit and
should be dismissed.
….………………….J.
(A. K.
Patnaik)
New Delhi,
June 07, 2012.
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Correction
In paragraph No.8 of the order pronounced by
Hon'ble Mr. Justice A.K. Patnaik, for Section 397
Cr.P.C. read Section 397/401 Cr.P.C .
64
