DR. RAJESH TALWAR AND ANR.versusC.B.I. AND ANR.

                        [2013) 10 S.C.R. 504


A                DR. RAJESH TALWAR AND ANR.
                                  v.
                         C.B.I. AND ANR.
          (Special leave Petition (Crl.) No. 7966 of 2013)
                         OCTOBER 8, 2013
B
          [DR. B.S. CHAUHAN AND S.A. BOBDE, JJ.]

       Criminal Trial -Application u/s.233 r/w. s.91 Cr.P.C. by
  accused seeking reports of scientific test conducted on 3
c persons who were initially suspected accused in the case -
  Application disposed of by trial court - Petition u/s.482 seeking
  the reports rejected by the High Court on the ground that the
  application was vexatious and intended to delay the
  proceedings - Held: Criminal Courts are not obliged to accede
0 to the request made by any party to entertain and allow
  application for additional evidence, and are bound in terms
  of s.233(3) Cr.P. C. to refuse such request, if it appears that
  they are made in order to vex the proceedings or delay the
  same - In the facts of the case, it is evident that the accused
E have been adopting dilatory tactics - Hence, the petition
  rejected.

       Se/vi and Ors. vs. State of Kamataka (2010) 7 SCC 263:
  2010 (5) SCR 381; Se/vi J. Jayala/ithaa and Ors. vs. State
  of Karnataka and Ors. 2013 (12) SCALE 234; Smt.
F Triveniben vs. State of Gujarat AIR1989 SC 1335: 1989 (1)
  SCR 509; Zahira Habibul/ah Sheikh (5) vs. State of Gujarat
  AIR 2006 SC 1367: 2006 (2) SCR 1081; Capt. Amarinder
  Singh vs. Parkash Singh Badal and Ors. (2009) 6 SCC 260:
  2009 (9) SCR 194; Mohd. Hussain @ Julfikar Ali vs. State
G (Govt. of NCT of Delhi) AIR 2012 SC 750: 2012 (1)
  SCR 64; Natasha Singh vs. CBI (2013) 5 sec 741 - relied
    on.

                                 504
H
DR. RAJESH TALWAR AND ANR. v. C.B.I. AND ANR. 505


                     Case Law Reference:                           A
    2010 (5) SCR 381           relied on             Para 10
    2013 (12) SCALE 234 relied on                    Para 10
    1989 (1) SCR 509           relied on             Para 10       B
    2006 (2) SCR 1081          relied on             Para 10
    2009 (9) SCR 194           relied on             Para 10
    2012 (1) SCR 64            relied on             Para 10
                                                                   c
    (2013) 5 sec 741           relied on             Para 10
     CRIMINAL APPELLATE JURISDICTION : Special Leave
Petition (Crl.} No. 7966 of 2013.

    From the Judgment and Order dated 19.07.2013 of the            D
High Court of Judicature at Allahabad in Application U/s. 482
No. 20215 of 2013.

     U.U. Lalit, Sandeep Kapur, Shivek Trehan, Niharika
Karanjawala, Manik Karanjawala (for Karanjawala & Co.) for         E
the Appellants.

    Siddharth Luthra, ASG, Rajiv Nanda, Padma Laks.hmi
Nigam, Pramod Kumar Dubey, Supriya Juneja, B.V. Bairam
Das, Anandana Handa, Shiv Pande, Hemant Shah for the
Respondents.                                                       F

    The Order of the Court was delivered by

      S.A. BOBDE, J. 1. This special leave petition has been
preferred against the impugned judgment dated 19.7.2013,           G
passed by the High Court of Judicature at Allahabad in
Application under Section 482 No.20215 of 2013 whereby the
petitioners' prayer for documents pertaining to scientific tests
made in their application 405/Kha dated 11.6.2013 filed under
Section 233 of the Code of Criminal Procedure, 1973
                                                                   H
    506      SUPREME COURT REPORTS                [2013] 10 S.C.R.


A (hereinafter referred to as 'Cr.PC') read with Section 91 was
  rejected.

       2. The petitioners are being tried for charges of committing
  the murder of their daughter Arushi and their domestic helper
B Hemraj in their house. At the initial stage, the investigation was
  conducted by the U.P. Police, however, it was later transferred
  to the Central Bureau of Investigation (hereinafter referred to
  as the 'CBI'). A closure report was submitted before the
  Magistrate who disagreed with it and has issued the process
c to the petitioners for the charge of committing the double
  murder.

        3. The present stage of the trial is that the evidence of the
  prosecution is closed and the statements of the accused are
D being recorded under Section 313 Cr.PC. The application in
  question under Section 311 for examining 7 other left over
  witnesses was moved at this stage. Alongwith this application,
  another application under Section 233 Cr.PC read with Section
  91 has been moved on 11.6.2013, in respect of the reports of
  certain tests conducted on 3 persons who at one time were
E suspected accused and had been in police custody, namely,
  Krishna, Raj Kumar and Vijay Mandal. By this application, the
  petitioners' sought the following reports:

      (i) Narco-analysis test reports and CD of Krishna
F conducted at FSL Bangalore;

        (ii) Narco-analysis test reports and CD of Rajkumar
    conducted at FSL Bangalore;

      (iii) Narco-analysis test reports and CD of Vijay Mandal
G conducted at FSL Bangalore;
       (iv) Brain mapping test of Rajkumar conducted at FSL
    Gandhinagar;

          (v) Brain mapping test of Krishna conducted at Bangalore;
H
DR. RAJESH TALWAR AND ANR. v. C.B.I. AND ANR. 507
              [S.A. BOBDE, J.]
   (vi) Brain mapping test of Vijay Manda! conducted at              A
Bangalore;

    (vii) Lie detector, polygraph test reports of Krishna, Raj
Kumar and Vijay Manda! conducted at CFSL New Delhi, FSL
Bangalore, FSL Gandhinagar;                                          B
    (viii) Psychological analysis test reports of Krishna, Raj
Kumar and Vijay Manda! conducted at AllMS, FSL Bangalore,
FSL Gandhinagar.

     (ix) The Narco-analysis test, brain mapping test, polygraph     c
test and the psychological tests done at AllMS, CFSL New
Delhi and at FSL Gandhinagar of the accused Dr. Rajesh
Talwar and Mrs. Nupur Talwar.

     x) The written opinion I report and its annexures and other
related documents dated 31.7.2008 of the postmortem doctors          D
                                                                         0
i.e. Dr. Sunil Dohre and Dr. Naresh Raj regarding inspection
and examination of the then murder weapon (Khukhri) sent to
them by the CBI.

    In addition, applicants also asked for call records, material    E
forming the basis of report prepared by PW.6 and sound
simulation test reports.

    4. These applications were disposed of by the trial Court
by order dated 18.6.2013 allowing them partly.
                                                                     F
      5. Before the High Court, it was contended by the
petitioners that the said reports are essential for the defence
since they pertain to those persons who were at one time
suspected as being responsible for the offence and contain
exculpatory statements favouring the petitioners. According to       G
the petitioners, it is only upon examination of the reports by the
Court that the petitioners will be able to put up their plea that
the crime, in fact, may have been committed by Krishna, Raj
Kumar and Vijay Manda I who were. earlier suspected of the
offence and had been interrogated. The High Court inter-alia         H
         508     SUPREME COURT REPORTS                [2013] 10 S.C.R.


    A    rejected the petitioners' prayer on the ground that the
         application is vexatious and intended to only delay the
         proceedings as was also found by the trial Court.

            6. Before us, Shri U.U. Lalit, learned Senior counsel for the
      petitioners submitted that the production of the reports
    8
      pertaining to the abcvenamed 3 persons is absolutely essential
      and relying on Section 91 Cr.PC, submitted that the production
      of these reports being relevant, the prayer ought to have been
      allowed by the High Court. According to Shri Lalit, the reports,
    C if produced, would not breach either Article 21 read with Article
      20(3) which protects the accused from self-incrimination and/
      or would not be hit by Section 21 of the Evidence Act since
      the persons in respect of whom those reports have been
      prepared are not accused anymore. In any case, according to
      the learned counsel, the reason given by the High Court that
0
    D such reports having been prepared on the basis of statements
      and data collected in contravention of Article 20 are premature
      and this could only have been found after the reports were
      produced in courts.

    E       7. Shri Siddharth Luthra, learned ASG vehemently
      opposed the prayer and submitted that the production of these
      reports is pointless in view of the law laid down by this Court
      in Se/vi & Ors. v. State of Karnataka (2010) 7 SCC 263,
      wherein such reports are held to be inadmissible in evidence.
    F The learned ASG further submitted that the timing of the
      application and the stage at which it was made clearly shows
      that the applications are vexatious and intended to delay the
      proceedings which are at a concluding stage. In support of his
      contention, Shri Luthra relied on sequence of events which
    G according to him show that the petitioners have at every stage
      tried to delay the proceedings by making one application after
      the other. The learned counsel further submitted that even the
      present special leave petition is delayed in view of the fact that
      it is preferred on the file on 18.9.2013 against the judgment of
      the Allahabad High Court which was passed on 19.7.2013. The
    Ii
  DR. RAJESH TALWAR AND ANR. v. C.B.I. AND ANR. 509
                [S.A. BOBDE, J.]
 order of the trial Court was, in fact, passed on 18.6.2013.           A

     8. Shri Lalit, learned Senior counsel for the petitioners
 submitted that the petitioners have been occupied in the trial
 and could not challenge the order of the High Court earlier.

        9. After considering the rival submissions on this point, we   8
  find no merit in the contention on behalf of the petitioners that
  they could not have approached this Court earlier. There is no
  reason why the petitioners ought to have waited from
  19. 7.2013 to 17.9.2013 to-approach this Court and allowed the
  trial to proceed even further. We make this observation in the       C
_~d of the observation of the High Court that even the
 _initial applications were made at a stage where the prosecution
  evidence had been concluded and the defence had entered
  and almost concluded its evidence. In fact, the petitioners had,
  without raising any objection that the reports and documents         D
  allegedly proved by the witnesses have not been supplied to
  them or made part of the Court record, participated in the
  examination and cross-examination of two witnesses. We might
  note that criminal courts are not obliged to accede to the request
  made by any party to entertain and allow application for             E
  additional evidence and infact, are bound in terms of Section
  233(3) Cr.PC. to refuse such request if it appears that they are
  made in order to vex the proceedings or delay the same. It is
  also pertinent to mention here that the learned Trial Judge who
  has been conducting the trial is likely to retire very soon.         F
  Relevant part of the Trial Court proceedings as well as Trial
  Court's orders thereto are given as under:

     a. Accused filed application dated 22.07.2013 in Trial
 Court for adjournment to produce their defence witness. They
 moved application dated 06.8.2013 in Trial Court for direction        G
 to CBI to produce document, Tabulated chart etc.

      b. Trial Court passed-Order dated 12.08.2013 rejecting the
 application for supplying of tabular charts.
                                                                       H
    510      SUPREME COURT REPORTS               (2013] 10 S.C.R.


A         c. Accused moved application dated 02.09.2013 in Trial
    Court to call PW-6 Dr.B.K.Mahapatra, CFSL, Bio Division, to
    file an affidavit.

        d. Trial Court passed order dated 03.09.2013 rejecting the
8   prayer to call upon Dr.B.K.Mahapatra to file affidavit.

         e. Trial Court passed order dated 03.09.2013 directing the
    accused to produce the defence witnesses from foreign country
    on the next date or through video conferencing.

c       f. Accused moved application dated 07.09.2013 for
    adjournment to produce defence witness from foreign country.

        g. Accused moved application dated 12.09.2013 in Trial
    Court for exhibiting documents.

D        h. Accused moved application to recall Dr. B.K. Mahapatra
    for his further cross examination.

          i. Seventh OW examined.

E      j. Accused filed another application for re-examination of
    DW-7 (Dr.Andrei Semikhodskii).

        k. Trial Court dismissed the aforesaid application for re-
    examination of Dr.B.K.Mahapatra and posted the case for final
    arguments i.e stage of 233 Cr.P.C. is crossed.
F
         It may be pertinent to note that petitioners took 04 months
    to produce 7 DWs after the closing of statement u/s 313
    Cr.PC. On 25.09.2013 case was fixed for final arguments but
    accused moved applications u/s 233 Cr.PC.

G        I. Accused moved application U/s 233 Cr.P.C. dated
    26.09.2013 in Trial Court to send physical exhibit Khukri abroad
    for re-examination.

       m. Trial Court passed order dated 28.09.2013 dismissing
H the aforesaid application.
DR. RAJESH TALWAR AND ANR. v. C.8.1. AND ANR. 511
              [S.A. BOBDE, J.]
     n. Accused moved application U/s 233 Cr.P.C. dated             A
30.09.2013 in Trial Court to file disclosure statements of
Krishna, Vijay Manda! and Rajkumar. Case adjourned to
1.10.2013 for objections and arguments on the application.
Petitioners moved another application U/s 233 Cr.P.C. dated
30.09.2013 in Trial Court for summoning witnesses of !Os of         B
C01, UP Police and private persons as defence witnesses.
Case adjourned to 1.10.2013 for objections and arguments on
the application.

     o. On 1.10.2013, petitioners did not argue the applications    C
and one lawyer informed the court that their counsel is ill and
obtained adjournment.

     10. This Court in Se/vi J. Jaya/alithaa & Ors. v. State of
Kamataka & Ors. (Writ Petition {Crl.) No.154 of 2013) decided
on 30.9.2013, after referring to its earlier judgments in Smt.      D
Triveniben v. State of Gujarat, AIR 1989 SC 1335; Zahira
Habibullah Sheikh (5) v. State of Gujarat, AIR 2006 SC 1367;
Capt. Amarinder Singh v. Parkash Singh Badal & Ors., (2009)
6 SCC 260; Mohd. Hussain @ Julfikar Ali v. State (Govt. of
NCT of Delhi), AIR 2012 SC 750; and Natasha Singh v. CBI,           E
(2013) 5 sec 741, dealt with the issue of fair trial observing:

            "Fair trial is the main object of criminal procedure
    and such fairness should not be hampered or threatened
    in any manner. Fair trial entails the interests of the
    accused, the victim and of the society. Thus, fair trial must   F
    be accorded to every accused in the spirit of right to life
    and personal liberty and the accused must get a free and
    fair, just and reasonable trial on the charge imputed in a
    criminal case. Any breach or violation of public rights and
    duties adversely affects the community as a whole and it        G
    becomes harmful to the society in general. In all
    circumstances, the courts have a duty to maintain public
    confidence in the administration of justice and such duty
    is to vindicate and uphold the 'majesty of the law' and the
    courts cannot turn a blind eye to vexatious or oppressive       H
    512        SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A         conduct that occurs in relation to criminal proceedings.

                  Denial of a fair trial is as much injustice to the
          accused as is to the victim and the society. It necessarily
          requires a trial before an impartial judge, a fair prosecutor
          and an atmosphere of judicial calm. Since the object of the
B
          trial is to mete out justice and to convict the guilty and
          protect the innocent, the trial should be a search for the
          truth and not a bout over technicalities and must be
          conducted under such rules as will protect the innocent and
          punish the guilty. Justice should not only be done but should
c         be seem to have been done. Therefore, free and fair trial
          is a sine qua non of Article 21 of the Constitution. Right to
          get a fair trial is not only a basic fundamental right but a
          human right also. Therefore, any hindrance in a fair trial
          could be violative of Article 14 of the Constitution.
D
          xx             xx             xx                 xx
                 Article 12 of the Universal Declaration of Human
          Rights provides for the right to a fair trial what is enshrined
          in Article 21 of our Constitution. Therefore, fair trial is the
E
          heart of criminal jurisprudence and, in a way, an important
          facet of a democratic polity and is governed by rule of law.
          Denial of fair trial is crucifixion of human rights."

          11. Thus, from the afore-stated facts, it is evident that
F   petitioners have been adopting dilatory tactics on every
    moment. The impugned order was passed on 19.7.2013. This
    petition was filed after about two months.

       12. In view of the above, we are of the considered opinion
G that facts and circumstances of the case do not warrant any
  interference:-lhe special leave petition is accordingly
  dismissed.

    K.K.T.                                            SLP dismissed.

H