Supreme Court of India
NUPUR TALWARversusCENTRAL BUREAU OF INVESTIGATION & ANR.
- Citation
- 2012 INSC 254
- Decided
- 7 June 2012
- Disposal
- Dismissed
- Bench
- A K PATNAIK
Holding
The magistrate was justified in issuing process as there was sufficient ground for proceeding, and the review petition is dismissed as uncalled for.
Summary
The case arose from the double murder of Aarushi Talwar and her domestic servant Hemraj in Noida in May 2008, for which a First Information Report was filed by the victim's father, Dr. Rajesh Talwar. The investigation was taken over by the CBI, which later submitted a closure report citing insufficient evidence. Dr. Rajesh Talwar filed a protest petition seeking further investigation, but the Special Judicial Magistrate rejected both the closure report and the protest, took cognizance under Section 190 CrPC and issued process under Section 204 CrPC against Dr. Rajesh and Dr. Nupur Talwar. The petitioners challenged the magistrate's order in revision, which was dismissed by the High Court and the Supreme Court, leading to a review petition. The Supreme Court held that at the stage of issuing process the magistrate need only be satisfied that there is sufficient ground for proceeding, not proof of guilt, and that there is no legal requirement to record detailed reasons; consequently, the review petition was dismissed as uncalled for and a misuse of jurisdiction.
Issues considered
- The requirement, if any, for a magistrate to record reasons when issuing process under Section 204 CrPC.
- Whether the magistrate was justified in rejecting the CBI closure report and the protest petition and issuing process against the petitioners.
- Whether a petition for further investigation can be entertained after the magistrate has taken cognizance and issued process.
- The maintainability of a review petition under Article 136 of the Constitution in this context.
- The scope of appellate or revision jurisdiction to interfere with a magistrate's order under Section 204 CrPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 156(3), s. 161, s. 164, s. 190, s. 204, s. 397, s. 401, s. 461
- Constitution of Indias. 136
- Indian Penal Code, 1860s. 174, s. 201, s. 302, s. 34
Subjects
double murderCBI closure reportmagistrate cognizanceSection 204 CrPCreview petitionmisuse of jurisdictioncriminal procedureevidence sufficiencyfurther investigation
Judgment
[2012] 6 S.C.R. 723
NUPUR TALWAR A
v.
CENTRAL BUREAU OF INVESTIGATION & ANR.
(Review Petition (Crl.) No. 85 of 2012)
IN
(Criminal Appeal No. 68 of 2012) B
. JUNE 07, 2012
[JAGDISH SINGH KHEHAR AND A.K. PATNAIK, JJ.]
Supreme Court Rules, 1966 - Or. XL - Review Petition - C
Double murder - First Information Report by the petitioner's
husband (father of deceased) - Investigation handed over to
CBI by State police - During investigation, suspicion against
petitioner's husband and three others - CBI submitting report
for closure of investigation before Special Judicial Magistrate D
(CBI) in absence of sufficient evidence against first informant
- The informaht filing protest petition objecting to closure
report and seeking further investigation - The Magistrate
rejected the closure report as well as the protest petition -
Took cognizance and issued process to the informant and the E
petitioner for committing the murder of their daughter and the
servant and also: for tampering with the evidence - Revision·
petition challenging the order of the Magistrate dismissed by
High Court - Sp.ecial Leave Petition dismi$sed - Review
Petition - Held: The review petition is uncalled for - The F
petitioner has not pointed out any error in the order of which
the review was sought but with the order of the Magistrate -
This amounts to misuse of jurisdiction of Supreme Court -
· Right to avail remedy under law, is the right of every citizen,
but such right cannot extend to misuse of jurisdiction - The G
petitioner cautioned against frivolous litigation - Any uncalled
for, frivolous litigation by the petitioner in future might evoke
exemplary costs - Administration of Justice - Code of Criminal
Procedure, 1970 - ss. 190 and 204.
723 H
724 SUPREME COURT REPORTS [2C12] 6 S.C.R.
A Code of Criminal Procedure, 1973:
ss. 190 and 204 - Double murder - First Information report
- Investigation by CBI-Closure report by CBI - Informant filing
protest petition and seeking further investigation - Magistrate
reje_cting the closure report as well as protest petition - Taking
8
cognizance and issuing process against the informant and his
wife for having murdered their daughter and servant and also
for tampering with the evidence - Accused objecting to the
order of Magistrate stating that the Magistrate overlooked
C certain vital factual aspects of the matter - Held: Per Jagdish
Singh Khehar: The order of the Magistrate issuing process
uls. 204 having taken into consideration the factual position
based on the statements recorded ulss. 161and164 Cr.P.C.
and documents appended to the charge-sheet and other
materials on the file, is justified - For the purpose of issuing
D process, all that the court has to determine is whether the
material placed before it 'is sufficient to proceed' which is
different from the term 'sufficient to prove and establish guilt'
- The material taken into consideration by the Magistrate as
well as the facts on which reliance was placed by the accused
E have to be substituted by cogent evidence recorded during
the trial -Per A.K. Patnaik: In a case exclusively triable by
Sessions Court, the Magistrate at the stage of s. 204 is to see
only that there is 'sufficient ground for proceeding against the
accused', and is not required to scrutinize the evidence as
F scrutinized at the time of framing charges.
Per: Jagdish Singh Khehar.J.:
Chandra Deo vs. Prakash Chandra Bose alias Chabi
Bose and Anr. AIR1963 SC 1430:1964 SCR 639; Mis. India
G Carat Pvt. Ltd. vs. State of Kamataka and Anr. (1989) 2 SCC
132: 1989 (1) SCR 718; Jagdish Ram vs. State of Rajasthan
and Anr. (2004) 4 sec 432: 2004 (2) SCR 846; CREF
Finance Ltd. vs. Shree Shanthi Homes (P) Ltd. and Anr.
(2005) 7 SCC 467: 2005 (2) Suppl. SCR 873 - relied on.
H
NUPUR TALWAR v. CENTRAL BUREAU OF 725
INVESTIGATION & ANR.
Per: A.K. Patnaik. J.: A
Kewal Krishan v. Suraj Bhan and Anr. 1980 (Supp) SCC
499 - relied on.
ss.190 and 204 - Double murder - Investigation by
CBI - Closure report of investigation - First informant filing B
protest petition and seeking further investigation -
Closure report as well as protest petition rejected and
cognizance taken by Magistrate and issuing process
against the first informant and his wife for murdering
their daughter and servant - Order of Magistrate upheld C
by High Court and Supreme Court - Plea of further
investigation - Propriety of - Held: Per Jagdish Singh
Khehar, J: The order of Magistrate rejecting plea of
further investigation attained finality as the accused did
not assail the order passed by the Magistrate before High D
Court on this ground - Per A.K. Patnaik, J.: Order of
Magistrate taking cognizance uls. 190 Cr.P.C. and issuing
process uls. 204 Cr.P.C. could not have been interfered
with by the High Court in the Revision Petition - Once the
order of Magistrate taking cognizance and issuing E
process was sustained, there is no scope for granting
relief of further investigation.
Per: A.K. Patnaik, J.:
Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and F
Ors. (1976) 3SCC 736: 1976 (0) Suppl. SCR 123; Randhir
Singh Rana v. State (Delhi Administration) (1997) 1 SCC
361: 1996 (10) Suppl. SCR880 - relied on.
State of Kamataka v. L. Muniswamy and Ors. (1977) 2 G
SCC 699:1977(3) SCR 113 - distinguished.
s. 204 and 461 - Order issuing process - Recording
of reasons - Necessity - Held: s. 204 does not require
recording of reasons while issuing process - But in the
H
726 SUPREME COURT REPORTS [2012) 6 S.C.R.
A facts and circumstances of the case viz. informant
himself was being summoned as accused; whilst the
rival parties were pleading insufficient evidence the
Magistrate found sufficient material to proceed against
the accused, it was essential for the Magistrate to
B highlight reasons for perusal of the Committal Court -
Recording of reasons cannot be said to be an irregularity
which would vitiate the proceedings as envisaged u/s. 461
Cr.P.C. - The order being a speaking order cannot be
stated to have occasioned failure of justice.
C Per: Jagdish Singh Khehar. J.:
Kanti Bhadra Shah vs. State of West Bengal (2000) 1
SCC 722: 2000 (1) SCR 27; UP. Pollution Control Board vs.
Mis. Mohan Meakins Ltd. and Ors. (2000) 3 SCC 745: 2000
D (2) SCR 566; Dy. Chief Controller of lmportsand Exports vs.
RoshanlalAgarwal and Ors. (2003) 4 SCC 139: 2003 (2)
SCR 621; Bhushan Kumar and Anr. vs. State (NCT of Delhi)
and Anr.Criminal Appeal No. 612 of 2012 decided o_n
4.4.2012 by Supreme Court;Rupan Deol Bajaj and Anr. vs.
E KPS Gill and Anr. (1995) 6 SCC 194: 1995(4) Suppl. SCR
237 - relied on.
Per: A.K. Patnaik, J.
UP. Pollution Control Board v. Mohan Meakins Ltd. and
F Ors.(2000) 3 SCC 745: 2000 (2) SCR 566; Deputy Chief
Controller of/mprots and Exports v. Roshallal Agarwal and
Ors. (2003) 4 SCC 139: 2003 (2) SCR 621- referred to.
Case Law Reference:
G In the Judgment of Jagdish Singh Khehar. J.
2000 (1) SCR 27 Relied on Para 9
2000 (2) SCR 566 Relied on Para 9
H
NUPUR TALWAR v. CENTRAL BUREAU OF 727
INVESTIGATION & ANR.
2003 (2) SCR 621 Relied on Para 9 A
(Criminal Appeal No. 612 of 2012 decided on 4.4.2012
by Supreme Court) Relied on. Para 9
1995 (4) Suppl. SCR 237 Relied on Para 11
B
1964 SCR 639 Relied on Para 17
1989 (1) SCR 718 Relied on Para 17
2004 (2) SCR 846 Relied on Para 17
2005 (2) Suppl. SCR 873 Relied on Para 17 c
In the Judgment of A.K. Patnaik, J.
1980 (Supp) sec 499 Relied on Para 5
2000 (2) SCR 566 Referred to Para 7 D
2003 (2) SCR 621 Referred to Para 7
1976 (0) Suppl. SCR 123 Relied on Para 8
1977 (3) SCR 113 Distinguished Para 9
E
1996 (10) Suppl. SCR 880 Relied on Para 10
CRIMINAL APPELLATE JURISDICTION: Review Petition
(Crl.): No. 85 of 2012.
IN F
Criminal Appeal No. 68 of 2012.
From the Judgment & Order dated 18.03.2011 of the High
Court of Judicature at Allahabad in Criminal Revision No. 1127
of 2011. G
Pinaki Misra, Rebecca M. John, Viresh B. Saharya,
Tarannum Cheema, Dr. Kailash Chand for the Petitioner.
Siddharth Luthra, Rajiv Nanda, AK. Sharma, Pramod
H
728 SUPREME COURT REPORTS [2012) 6 S.C.R.
A Kumar, Dubey, Shri Singh, Devina Sehgal, Arvind Kumar
Sharma for the Respondents.
The Order of the Court was delivered by
A.K. PATNAIK, J. 1. I have carefully read the order of my
B 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
c 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
D 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
E 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
F 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. 68 of 2012. 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.
G
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
H are offences committed in respect of the two deceased
NUPUR TALWAR v. CENTRAL BUREAU OF 729
INVESTIGATION & ANR. [A.K. PATNAIK, J.]
persons, Aarushi and Hemraj, there cannot be any infirmity in A
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.
B
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 C
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 D
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."
E
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.
F
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] G
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 H
730 SUPREME COURT REPORTS (2012) 6 S.C.R.
A 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 proc~eding" against the accused. At
B 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
c 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
D
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
E 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 hal? to do at the stage of Section 204
Cr.P.C. is to see whether on a perusal of the evidence there is
F "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
G 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.
H
NUPUR TALWAR v. CENTRAL BUREAU OF 731
INVESTIGATION & ANR. [A.K. PATNAIK, J.]
Harish Salve, produced before us the materials which were A
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 B
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 c
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,
0
therefore, the argument of Mr. Salve that the Magistrate has not
looked into all the materials collected d!Jring investigation is .
1
misconceived.
7. By writing a long order dated p9.02.2011 and not
referring to some of the relevant materials on which the E
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 F
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 lmprots & Exports v. Roshallal Agarwal & Ors. G
[(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 H
732, SUPREME COURT REPORTS [2012] 6 S.C.R.
A 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
8 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
C 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 Shiva/ingappa Konjafgi & 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,
D 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
E 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
F 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
G 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
H or warrant) if in his opinion there was sufficient ground for
NUPUR TALWAR v. CENTRAL BUREAU OF 733
INVESTIGATION & ANR. [A.K. PATNAIK, J.]
proceeding and therefore so long as there are materials to A
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. 8
9. Mr. Harish Salve, however, cited the judgm~nt of this
Court in State of Kamataka 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 C
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 D
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 E
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. F
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 G
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
H
734 SUPREME COURT REPORTS [2012] 6 S.C.R.
A 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
B 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
C 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.
D JAGDISH SINGH KHEHAR
1. The in'stant 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
E 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 Hem raj was recovered from the terrace of the
F 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
G 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
H
NUPUR TALWAR v. CENTRAL BUREAU OF 735
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
Talwar, the neeidle of suspicion came to be pointed towards A
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 B
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. c
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, D
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 :- E
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 F
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. G
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.
H
736 SUPREME COURT REPORTS [2012] 6 S.C.R.
A 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
B 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
c 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.
D 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.
E
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
F 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
G 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.
H
NUPUR TALWAR v. CENTRAL BUREAU OF 737
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
xi. There is no evidence to explain the presence of A
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 B
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 C
recovered.
26. The investigation revealed several suspicious actions
by the parents post occurrence, but the circumstantial
evidence collected during investigation has critical and D
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 E
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." F
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 G
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
H
738 SUPREME COURT REPORTS [2012) 6 S.C.R.
A 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
Er 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.
C 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
D 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. 68 of 2012). The
aforesaid Criminal Appeal was dismissed by this Court by an
E 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. 68 of 2012). The instant Review Petition was
entertained, and notice was issued to the respondents. Lengthy
arguments were advanced at the hands of the learned counsel
F 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.
G
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
H controversy, well before the beginning of the trial. It was sought
NUPUR TALWAR v. CENTRAL BUREAU OF 739
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
tq be canvassed, that even if the Magistrate having taken A
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 B
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, c
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 D
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 E
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. Mis. Mohan Meakins Ltd. and F
others, (2000) 3 sec 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 G
accused at the first instance, they desired the trial
court to discharge them without even m·aking 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
H
740 SUPREME COURT REPORTS (2012] 6 S.C.R.
A 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"
B 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
c 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
D 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
E 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:
F 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
G 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
H impugned order, the learned Magistrate has
NUPUR TALWAR v. CENTRAL BUREAU OF 741
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
neither specified any reasons nor has he A
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 B
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 C
order while issuing summons vide Kanti Bhadra
Shah v. State of WB., (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 D
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 E
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 F
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 G
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,
H
742 SUPREME COURT REPORTS [2012) 6 S.C.R.
A 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
B 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
c 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
D 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
E 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
F 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
G the act and therefore, they are liable to be proceeded
against according to the law."
(emphasis is mine)
H Whether an order passed by a Magistrate issuing process
NUPUR TALWAR v. CENTRAL BUREAU OF 743
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
required reasons to be recorded, came to be examined by this A
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 B
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 C
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. Mis.
Mohan Meakins Ltd. & Ors., (2000) 3 SCC 745, D
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 E
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 F
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 G
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:-
H
744 SUPREME COURT REPORTS [2012] 6 S.C.R.
A "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
B 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
c 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
D 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
E 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-
F 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
G
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."
H (emphasis is mine)
NUPUR TALWAR v. CENTRAL BUREAU OF 745
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
It is therefore apparent, that an order issuing process, cannot A
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.
8
Section 461 thereof, lists irregularities which would lead to
annulment of proceedings. Section 461 aforesaid is being
extracted hereunder:-
"461. Irregularities which vitiate proceedings-
c
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 D
other thing in the custody of a postal or telegraph
authority;
(c) demand$ security to keep the peace;
(d) demands security for good behaviour; E
(e) discharges a person lawfully bound to be of good
behaviour;
(f) cancels a bond to keep the peace; F
(g) makes an order for maintenance;
(h) makes an order under section 133 as to a local
nuisance;
G
(i) prohibits, under section 143, the repetition or
continuance of a public nuisance;
makes an order under Part C or Part D of Chapter
x·'
H
746 SUPREME COURT REPORTS [2012] 6 S.C.R.
A (k) takes cognizance of an offence under clause (c) of
sub-section (1) of section 190;
(I) tries an offender;
(m) tries an offender summarily;
8
(n) passes a sentence, under section 325, on
proceedings recorded by another Magistrate;
(o) decides an appeal;
c (p) calls, under section 397, for proceedings; or
(q) revises an order passed under section 446,
his proceedings shall be void."
D In the list of irregularities indicated in Section 461 of the Code
of Crimina,I 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
E 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
F 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
G 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
H
NUPUR TALWAR v. CENTRAL BUREAU OF 747
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
29.12.2010. The Magistrate could have accepted the- report A
and dropped proceedings. The Magistrate, however, chose not
to accept the CBl'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 B
taken cognizance, could have issued process (as has been
done vide order dated 9.2.2011 ). A third alternative was also
available to the ~agistrate. The Magistrate could have directed
the police to carry out further investigation. As noticed
hereinabove, the Magistrate inspite of the submission of a c
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 irriperative
for the Magistrate to record reasons, for differing with tne prayer D
made in the closure report. After all, the CBI would have surely
wished to know, how it went wrong. But then, there are ~o 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
E
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 F
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 whereot,:guilt
of the perpetrators of the twin murders of Aarushi Talwar' and G
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 H
748 SUPREME COURT REPORTS [2012] 6 S.C.R.
A 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
B 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
c the Magistrate was limited to taking cognizance and issuing
process. A Magistrate in such a situation, on being satisfied,
has the auth ority to merely commit the case for trial to a Court
of Session,1 under Section 209 of the Code of Criminal
Procedure. Section 209 is being extracted hereunder:
D "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
E 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
F 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
G 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;
H
NUPUR TALWAR v. CENTRAL BUREAU OF 749
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
(d) notify the Public Prosecutor of the commitment of A
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
B
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 C
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 D
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 E
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 F
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, G
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 H
750 SUPREME COURT R!=:PORTS [2012] 6 S.C.R.
A recorded by this Court in Rupan Deol Bajaj and another vs.
KPS Gill and another, (1995) 6 sec 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
B
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
c 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.
D 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
E 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
F 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
G 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
H
NUPUR TALWAR v. CENTRAL BUREAU OF 751
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
in view the following observations of this Court in A
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 8
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 C
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. D
Similarly if a police report mentions that half
a dozen persons examined by them claim to
be eye witnesses to a rnurder but that for
various reasons the witnesses could not be
believed, the Magistrate is not bound to E
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 witne~es and
take cognizance of the offence. If ~ does F
so, it would be on the basis of the state'frients
of the witnesses as revealed by the police
report."
29. Our such exercise persuades us to hold that the G
opinion of' the Investigating Officer that the
allegations contained in the F. /. 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
H
752 SUPREME COURT REPORTS [2012] 6 S.C.R.
A taking cognizance of the offences under Sections
354 and 509 l.P.C. We, however, refrain from
detailing or discussing those statements and the
nature and extent of their corroboratidn of the F.1.R.
lest they create any unconscious impression upon
8 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
c support of the opinion expressed in the police
(final) report and our reasons in disagreement
thereto."
(emphasis is mine)
D 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.
E
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
F materials collected during the process of investigation, was ful[y
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
G 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 groun'd that it
H was a reasoned order. ·
NUPUR TALWAR v. CENTRAL BUREAU OF 753
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
13. During the course of hearing, the primary ground for A
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 B
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 c
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 D
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 E
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 F
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 G
a key to be opened from outside. And further, coupled with the
fact, that the outer exit/entry door(s) to the flat of ttie 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 H
Aarushi Talwar and Hemraj.
754 SUPREME COURT REPORTS (2012] 6 S.C.R.
A 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
s "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
c 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,
D 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, Naida, on the night intervening 15-16.5.2008.
This also, acc·ording to the Magistrate, affirmed the main
E 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
F 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
G 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.
H
NUPUR TALWAR v. CENTRAL BUREAU OF 755
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
Sixthly. from the statements of Deepak Kanda, Bhupender A
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. B
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 c
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 D
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 E
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 F
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 G
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 H
756 SUPREME COURT REPORTS (2012] 6 S.C.R.
A 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
8 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.
C 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.
D Tenthly, based on the statements of Umesh Sharma,
Kalpana Monda!, 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
E 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
F 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.
G 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 dowo and did not say anything
about keys and went inside the house ... ". The aforesaid
H
NUPUR TALWAR v. CENTRAL BUREAU OF 757
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
narration, coupled with the fact, that Dr. Prafull Durrani one of A
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
Hem raj. 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 B
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 C
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 D
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 E
was, that one golf club might have dropped from the golf kit,
and might have been left there. This factual aspectlead to the
inference, that the weapon used in the crime, was deliberately
not handed over to the investigating agency, after the
occurrence. F
Thirteenthly, another factual aspect emerging during the
course of investigation was, thaf the body of Hem raj 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 G
was identified by one of Hemraj's friend. Dr. Nupur Talwar
confirmed, that the body recovered from the terrace was of
Hem raj, on the basis of the inscription on the shirt worn by him.
From the fact that, neither Dr. Rajesh Talwar nor Or. Nupur
H
758 SUPREME COURT REPORTS (2012] 6 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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 ba.sis of such
acceptable evidence, that final conclusions can be drawn to
implicate the accused. That stage has not yet arisen. At the
G 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
H
NUPUR TALWAR v. CENTRAL BUREAU OF 759
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
direction should be issued for further investigation (as was A
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 B
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, C
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 D
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 E
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 F
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 G
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 H
760 SUPREME COURT REPORTS [2012] 6 S.C.R.
A 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 h~
footprints would not be confined up to the room of Aarushi
B 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.
c 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
D 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
casa if any one of the investigating agencies of the country
E 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
F 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
G 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
H guilty. The evidence of witness Shoharat that Dr. Rajesh
NUPUR TALWAR v. CENTRAL BUREAU OF 761
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
Talwar asked him to paint the wooden portion of a wall A
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 B
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, c
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 D
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."
E
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 F
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 G
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 H
762 SUPREME COURT REPORTS [2012] 6 S.C.R.
A 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
B 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, Naida, 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
C 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
D 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
E 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,
F 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.
G 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
H
NUPUR TALWAR v. CENTRAL BUREAU OF 763
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
to the terrace were from outside the flat, i.e., from the common A
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. Rf!jesh Talwar or Dr. Nupur Talwar could be linked to the
murder of Hemraj, since the body of Hemraj was found at a B
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 C
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 D
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 E
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 F
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 G
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~tter dated 24.3.2011 (even
though the same was not a part of -the charge papers). It was
submitted, that the aforesaid letter c;ould not have been taken
H
764 SUPREME COURT REPORTS [2012] 6 5.C.R.
A 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
B 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
c 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
D 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
E 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
F 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
G 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
H
NUPUR TALWAR v. CENTRAL BUREAU OF 765
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
to the learned counsel, the identification of the fingerprints on A
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 B
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 C
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. 0
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 E
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 F
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 G
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 NAO (No Abnormality Detected) against the column
at serial no.7, pertaining to the private parts of Aarushi Talwar.
H
766 SUPREME COURT REPORTS [2012] 6 S.C.R.
A 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
B 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
c 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
D 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
E 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
F on the heads of Aarushi Talwar and Hemraj, was stated to
match with the dimension of a 5 iron golf club. It was poin.ted
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
G 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
H the golf club in question. It w~s sought to be highlighted, that
NUPUR TALWAR v. CENTRAL BUREAU OF 767
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
no expert had given any such opinion during the entire A
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 B
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 C
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 D
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 E
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 F
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 G
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
H
768 SUPREME COURT REPORTS (2012] 6 S.C.R.
A 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
B 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
c 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,
0 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
E 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.
F
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
G 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
H · under two heads. Firstly, I shall examine the validity of the order
NUPUR TALWAR v. CENTRAL BUREAU OF 769
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
dated 9.2.2011, and thereafter, I will deal with the substance A
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
B
Procedure. Section 204 aforementioned is extracted
hereunder:
"204. Issue of process -
(1) If in the opinion of a Magistrate taking cognizance c
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 D
(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 E
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
F
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. G
(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 H
770 SUPREME COURT REPORTS [2012] 6 S.C.R.
A 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
B 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,
C 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
D 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
E
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
F 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 Born 524 and
Baidya Nath Singh v. Muspratt, ILR 14 Cal 141. In
G 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
H mere perusal of the complaint and the
NUPUR TALWAR v. CENTRAL BUREAU OF 771
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
consideration of the complainant's evidence on A
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 B
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) c
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 0
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) E
The same issue was examined by this Court in Mis. India Carat
Pvt. Ltd. vs. State of Karnataka and Anr., (1989) 2 SCC 132,
wherein this Court held as under :
F
"(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 G
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 H
772 SUPREME COURT REPORTS [2012] 6 S.C.R.
A 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
B 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
c 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
D
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.
E (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
F 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
G 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 h(3 can take cognizance of the original
H
NUPUR TALWAR v. CENTRAL BUREAU OF 773
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
complaint and examine the complainant and his A
witnesses and thereafter issue process to the
accused, if he is of opinion that the case should
be proceeded with."
(emphasis is mine)
B
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 c
was directed to consider the entire material on
record including the final report befDre 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 o
Magistrate it cannot be said that the er:itire 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 E
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
F
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 G
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 H
774 SUPREME COURT REPORTS [2012] 6 S.C.R.
A 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.
B 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
C 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 extra~ted above, further
D 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
E 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
F 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
G 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,
H and will have to be redrawn, in accordance with law.
NUPUR TALWAR v. CENTRAL BUREAU OF 775
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
19. Rolled along with the contention in hand, it was the A
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 B
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 c
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. Prakash Chandra Bose alias Chabi Bose and Anr.,
AIR 1963 SC 1430, wherein it was observed as under: D
"(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 E
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 F
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 G
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 H
776 SUPREME COURT REPORTS (2012] 6 S.C.R.
A 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
B 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
c 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
D
of Section 202, Cr. P. C. is to enable the
Magistrate to scrutinize carefully the a/legations
made in the complaint with a view to prevent a
person named therein as accused from being
called upon to face an obviously frivolous
E 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
F merely with a view to protect the interests of an
absent accused person, but f!IS with a view to
bring to book a person or persons against whom
grave a/legations are m,ade. Whether the
complainris frivolous or not has, at that stage,
G necessarily to be determirl/ed 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
H a trial for the simple reason that in law there can
NUPUR TALWAR v. CENTRAL BUREAU OF 777
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
be but one trial for an offence. Permitting an A
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 B
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 c
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
0
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 obseNations of this
court in Vadilal Panchal v. Dattatraya Dulaji,
(1961) 1SCR1 at p.9: (AIR 1960 SC 1113 at p. E
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 F
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 G
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 H
778 SUPREME COURT REPORTS [2012] 6 S.C.R.
A 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
B Court in CREF Finance Ltd. vs. Shree Shanthi Homes (P) Ltd.
and Anr., (2005) 7 sec 467, wherein this Court held as under
"10. In the instant case, the appellant had filed a detailed
c complaint before the Magistrate. The record shows
that the Magistrate took cognizance and fixed the
matter for recording of the sta_tement of the
complainant on 1-6-2000. Even if we assume,
though that is not the case, that the words
D "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
E
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.
F 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 consideting the material placed
G 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
H the accused. It may also be that after taking
NUPUR TALWAR v. CENTRAL BUREAU OF 779
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
cognizance and examining the complainant on oath, A
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 B
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 c
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 0
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
E
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 F
was illegal.
11. Counsel for the respondents submitted that
cognizance even if taken was improperly taken
because the Magistrate had not applied his mind G
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 H
780 SUPREME COURT REPORTS [2012) 6 S.C.R.
A 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
B 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
c 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
D
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."
E (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
F 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
G 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
H
NUPUR TALWAR v. CENTRAL BUREAU OF 781
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
petitioner were merely conjectural. Each of the defences was A
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 B
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 c
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
0
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. E
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 F
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. G
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 H
782 SUPREME COURT REPORTS [2012] 6 S.C.R.
A 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
s 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
c 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
D 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
E 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
F 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
G 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
H was well found, dismissed the Revision Petition vide an order
NUPUR TALWAR v. CENTRAL BUREAU OF 783
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
dated 18.3.2011. The High Court expressly affirmed that the A
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 B
Appeal no. 68 of 2012). 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. C
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. . .. " D
(emphasis is mine)
Thereafter, the matter was disposed of, by this Court, by
recording the following observations :
E
"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, F
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 G
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 Mis India Carat Private Ltd. vs. State of H
784 SUPREME COURT REPORTS [2012) 6 S.C.R.
A 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 :-
B
"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
c 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
D 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
E 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
F 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.
G
Considering these propositions of Jaw, we are of
the view that we should not interfere• with the
concurrent order of the Magistrate which is
affirmed by the High Court.
H 28. We are deliberately not going into various factual
NUPUR TALWAR v. CENTRAL BUREAU OF 785
INVESTIGATION [JAGDISH SINGH KHEHAR, J.]
aspects of the case which have been raised A
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 B
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 c
held.
29. The appeal is accordingly disposed of."
(emphasis is mine)
D
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, t'o the
order passed by this Court (dated 6.1.2012) of which review
has been sought. No error whatsoever was pointed out in the E
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 F
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 G
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, H
786 SUPREME COURT REPORTS [2012] 6 S.C.R
A 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
B 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
c 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
0
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
E 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
F 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
G 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.
H K.K.T. Review Petition dismissed.
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