Nupu Talwar's Case in Apex Court

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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 .

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