“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
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.
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 16th 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
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.
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 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 moved for
exemption from appearance in the court. In the meanwhile the
Sessions Judge, Lucknow (Shri Prahlad Narain) entertained a
revision moved by the accused against the order issuing process
to them and, quashed it on the erroneous ground that the
magistrate did not 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
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
snail-paced 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 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, 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 inquiry. At the stage of
issuing the process to the accused, the Magistrate is not
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 of West Bengal, (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 punished Under Section 174 Indian
Penal Code. It is a ground for contempt of Court.
10. Section 204 of the Code does not mandate the Magistrate to
explicitly state the reasons for issuance of summons. It clearly
states that if in the opinion of a Magistrate taking cognizance
of an offence, there is sufficient ground for proceeding, then
the summons may be issued. This section mandates the Magistrate
to form an opinion as to whether there exists a sufficient
ground for summons to be issued but it is nowhere mentioned in
the section that the explicit narration of the same is
mandatory, meaning thereby that it is not a pre-requisite for
deciding the validity of 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;
(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 sub-
section (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.
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 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 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 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 at the time of taking cognizance the Court has to exercise
its judicial discretion it necessarily follows that if in a
given case - as the present one - the complainant, as the person
aggrieved raises objections to the acceptance of a police report
which recommends discharge of the accused and seeks to satisfy
the Court that a case for taking cognizance was made out, but
the Court overrules such objections, it is just and desirable
that the reasons therefore be recorded. Necessity to give
reasons which disclose proper appreciation of the issues before
the Court needs no emphasis. Reasons introduce clarity and
minimize chances of 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 of the learned Magistrate in the
instant case does not contain any reason whatsoever, even though
it was passed after hearing the objections of the complainant,
it has got to be set aside and we do hereby set it 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 that the opinion of' the
Investigating Officer that the allegations contained in the
F.I.R. were not substantiated by the statements of witnesses
recorded during investigation is not a proper one for we find
that there are sufficient materials for taking cognizance of 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 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 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, 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 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 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.
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.
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.
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 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 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 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 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 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 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.
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 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 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 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 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 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.
(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 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
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 well-written 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)
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.
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 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
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 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, 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 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 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 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 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 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 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.
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 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 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.”
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 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 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 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
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 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
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 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 (Delhi Administration)
[(1997) 1 SCC 361], once a Magistrate 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.
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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