Dr. Mrs. Nupur Talwar
Vs. C.B.I., Delhi & ANR.
Jurisdiction Criminal Appeal No.68 of 2012 arising out of Special Leave to
Appeal (CRL) No(S).2982/2011]
J U D G M E N T
have heard learned counsel for the parties.
subject matter of challenge before this Court is an order dated 18th March, 2011
of the Allahabad High Court whereby the High Court on a petition under Section 397/401
of the Criminal Procedure Code (hereinafter `Code') challenging the order dated
9th February, 2011 passed by Special Judicial Magistrate (CBI), Ghaziabad in
Special Case No.01 of 2011 (Rajesh Talwar Vs. Unknown under Section 302, I.P.C.
P.S. S.C.B. C.B.I., Delhi) refused to interfere with Magistrate's order of
the said order dated 9th February, 2011, the Magistrate had taken cognizance of
the offences under Sections 302/34 and 201/34 I.P.C. against the appellant and one
Dr. Rajesh Talwar. The concluding portion of the order of the Magistrate is:- "While
rejecting the conclusion given in the Final Report by the Investigating Officer,
cognizance on the basis of Police report under section 190(1)(b) of Cr.P.C. is taken
under section 302/34 and 201/34 IPC against accused Dr. Rajesh Talwar and Dr.
Nupur Talwar for committing murders of Arushi and Hem Raj and for tampering with
the proofs. The accused be summoned for appearance on 28.02.2011. Copies be prepared."
entire case arises out of an unfortunate murder of a young girl namely, `Aarushi'
in her own residence and also the murder of one Hemraj, a domestic help. It appears
that the said unfortunate murder of the young girl raised some kind of a
sensation in public mind and an uproar. Be that as it may, sitting in the
Courts of law, we have to steer clear of the public debate and follow the
course of law.
the investigation was conducted by the Uttar Pradesh Police in which the
implication of Dr. Rajesh Talwar and Dr. Nupur Talwar, parents of the deceased victim
girl transpired. Thereafter, the investigation of the case was handed over to the
C.B.I. on 29th May, 2008 on the basis of a notification by the State. Prior to that,
on 23rd May, 2008, Dr. Rajesh Talwar was arrested. The CBI initially filed a
closure report of the investigation. On the basis of that report, an application
was filed by the C.B.I. under Section 169 of the Code before the Special Judicial
Magistrate, C.B.I., Ghaziabad. The contents of the said petition read as under:
That accused Rajesh Talwar was arrested in the aforesaid case on 23.5.2008. Subsequently,
following expiry of his police remand, this Hon'ble Court remanded him to
judicial custody upto 11.7.2008 vide order dated 2.7.2008.
the investigation of this case is still pending and all the facts and circumstances
of the case are being investigated.
during investigation, the role of accused Rajesh Talwar was thoroughly investigated
regarding the aforesaid crime.
during investigation, the poly right to psychological analysis test of accused
Rajesh Talwar was conducted and no deception has been found in the test
during investigation, the cloths, shoes and finger palm/foot prints of accused Rajesh
Talwar was forwarded/submitted to CFSL, New Delhi for examination and expert opinion.
The Scientific examination results could not connect accused Rajesh Talwar with
in view of the above circumstances, the further judicial custody remand of accused
Rajesh Talwar is not required in the interest of justice. Prayer It is,
therefore, prayed that Judicial custody remand of accused Rajesh Talwar may not
the basis of the aforementioned prayer of C.B.I. under Section 169 of the Code,
an order came to be passed on 11th July, 2008 by the learned Magistrate and Dr.
Rajesh Talwar was released on his furnishing two sureties of Rs.5 lakh each with
a personal bond of the same amount.
the C.B.I. filed another closure 6report on 29th December, 2010. Then, on a notice
being issued by the Court, a protest petition came to be filed by Dr. Rajesh Talwar.
Only thereafter, the impugned order of the Magistrate dated 9th February, 2011 came
to be passed. The learned Magistrate in his detailed order after considering various
aspects of the matter took cognizance of the offence and passed the order,
is apparent from the detailed order that the Magistrate rejected the conclusion
given in the official report of the Investigating Officer and took cognizance under
Section 190(1)(b) of the Code.
of this Court has been drawn to various parts of the CBI closure report and
certain other documents by Mr. Ranjit Kumar, learned senior counsel appearing for
in a jurisdiction under Article 136 of the Constitution, we do not feel inclined
to go into all the factual aspects of the case. Obviously at this stage we
cannot weigh evidence. Looking into the order of Magistrate, we find that he applied
his mind in coming to the conclusion relating to taking of cognizance.
The Magistrate has
taken note of the rejection report and gave his prima facie observation on the
controversy upon a consideration of the materials that surfaced in the case. We
reproduce the conclusions reached by the Special Judicial Magistrate.
"From the analysis
of evidence of all above mentioned witnesses prima facie it appears that after investigation,
on the basis of evidence available in the case diary when this incident occurred
at that time four members were present in the house-Dr. Rajesh Talwar, Dr.
Nupur Talwar, Arushi and servant Hem Raj; Arushi and Hem Raj, the two out of four
were found dead. In the case diary there is no such evidence from which it may appear
that some person had made forcible entry and 8there is no evidence regarding
involvement of the servants.
In the night of the
incident, Internet was switched on and off in the house in regard to which this
evidence is available in the case diary that it was switched on or off by some
person. Private parts of deceased Arushi were cleaned and deceased Hem Raj was
dragged in injured condition from the flat of Dr. Rajesh Talwar up to the
terrace and the terrace was locked. Prior to 15.5.2008, terrace was not locked.
According to documents
available on the case diary, blood stains were wiped off on the staircase, both
the deceased were slit with the help of a surgical instrument by surgically trained
persons and shape of injury on the head and forehead was V shaped and according
to the evidence available in the case diary that appeared to have been caused with
a golf stick.
A person coming from outside,
during the presence of Talwar couple in the house could have neither used the Internet
nor could have taken the dead body of deceased Hem Raj to the terrace and then locked
when the Talwar couple was present in the house. On the basis of evidence available
in the case diary footprints stained with blood were found in the room of
Arushi but outside that room bloodstained footprints were not found.
If the assailant would
go out after committing murder then certainly his footprints would not be
confined up to the room of Arushi and for an outsider it is not possible that when
Talwar couple were present in the house he would use liquor or would try to take
dead body on the terrace. Accused after committing the offence would like to
run away immediately so that no one could catch him.
On the basis of evidence
of all the above witnesses and circumstantial evidence available in case diary during
investigation it was expected from the Investigating Officer to submit charge-sheet
against Dr. Rajesh Talwar and Dr. Nupur Talwar. In such type of cases, when
offence is committed inside a house, there direct evidence cannot be expected. Here
it is pertinent to mention that CBI is the highest investigating agency of the
country in which the public of the country has full confidence.
Whenever in a case if
any one of the investigating agencies of the country remained unsuccessful then
that case is referred to CBI for investigation. In such circumstances, it is expected
of CBI that applying the highest standards, after investigation it should submit
such a report before the Court which is just and reasonable on the basis of evidence
collected in investigation, but it was not done so by the CBI which is highly disappointing.
If I draw a
conclusion from the circumstances of case diary, then I find that in view of
the facts, the conclusion of the investigating officer that on account of lack
of evidence, case may be closed; does not appear to be just and proper. When
offence was committed inside a house, on the basis of evidence received from case
diary, a link is made from these circumstances, and these links are indicating prima
facie the accused Dr. Rajesh Talwar and Dr. Nupur Talwar to be guilty.
The evidence of witness
Shoharat that Dr. Rajesh Talwar asked him to paint the wooden portion of a wall
between the rooms of Arushi and Dr. Rajesh Talwar, indicates towards the conclusion
that he wants to tamper with the evidence. From 10 the evidence ... so many in the
case diary, prima facie evidence is found in this regard.
Therefore, in the light
of above evidences conclusion of Investigating Officer given in the final
report deserves 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 Arushi and Hem Raj and for tampering with the proof.
At this stage, the
principle of law laid down by Hon'ble Supreme Court in the case of Jagdish Ram Vs.
State of Rajasthan and another, reported in AIR 2004 SC 1734 is very important
wherein the Hon'ble Supreme Court held that investigation is the job of police and
taking of cognizance is within the jurisdiction of the Magistrate.
If on the record,
this much of evidence is available that prima facie cognizance can be taken then
the Magistrate should take cognizance. Magistrate should be convinced that there
is enough basis for further proceedings rather for sufficient basis for proving
the said order, a Criminal Revision was filed before the High Court under
Sections 397 and 401 of the Code, not by Dr. Rajesh Talwar, father of the girl
but by Dr. Mrs. Nupur Talwar, her mother.
High Court passed its order dated 18th 11March, 2011 after a detailed
consideration of the factual aspects and legal questions involved in the matter
of taking cognizance and the same order is impugned before us.
the concluding portion of its order, High Court held: "However,
considering the facts of the case it is directed that in case the revisionist surrenders
before the Special Judicial Magistrate (C.B.I.), Ghaziabad and applies for bail
within a period of two weeks from today her bail application shall be dealt
with in accordance with the law expeditiously."
the next day i.e. 19th March 2011, which was a Saturday, a Bench of this Court
entertained at 7 P.M. an SLP against the High Court's order and passed the
following order:- "List on the notified date. In the meanwhile, there shall
be stay as prayed for. However, the petitioners shall deposit their passports with
the trial 12 Court on Monday i.e. 21.03.2011."
then, the matter has remained pending before this Court.
the question is what should be the extent of judicial interference by this Court
in connection with an order of taking cognizance by a Magistrate while exercising
his jurisdiction under Section 190 of the Code.
190 of the Code lays down the conditions which are requisite for the initiation
of a criminal proceeding.
this stage the Magistrate is required to exercise sound judicial discretion and
apply his mind to the facts and materials before him. In doing so, the Magistrate
is not bound by the opinion of the investigating officer and he is competent to
exercise his discretion irrespective of the views expressed by the Police in its
report and may prima facie find out whether an offence has been made out or
taking of cognizance means the point in time when a Court or a Magistrate takes
judicial notice of an offence with a view to initiating proceedings in respect of
such offence which appears to have been committed.
the stage of taking of cognizance of offence, the Court has only to see whether
prima facie there are reasons for issuing the process and whether the ingredients
of the offence are there on record.
principles relating to taking of cognizance in a criminal matter has been very
lucidly explained by this Court in S.K. Sinha, Chief Enforcement Officer Vs. Videocon
International Ltd. and Ors. - (2008) 2 SCC 492, the relevant observations are
set out: "
19. The expression "cognizance"
has not been defined in the Code. But the word (cognizance) is of indefinite import.
It has no esoteric or mystic significance in criminal law. It merely means "become
aware of" and when used with reference to a court or a Judge, it connotes"
to take notice of judicially". It indicates the point when a court or a Magistrate
takes judicial notice of an offence with a view to initiating proceedings in respect
of such offence said to have been committed by someone."
20. "Taking Cognizance"
does not involve any formal action of any kind. It occurs as soon as a Magistrate
applies his mind to the suspected commission of an offence. Cognizance is taken
prior to commencement of criminal proceedings. Taking of cognizance is thus a sine
qua non or condition precedent for holding a valid trial. Cognizance is taken of
an offence and not of an offender. Whether or not a Magistrate has taken cognizance
of an offence depends on the facts and circumstances of each case and no rule of
universal application can be laid down as to when a Magistrate can be said to have
taken cognizance." (para nos. 19 and 20 at page 499 of the report)
correctness of the order whereby cognizance of the offence has been taken by the
Magistrate, unless it is perverse or based on no material, should be sparingly
interfered with. In the instant case, anyone reading the order of the
Magistrate taking cognizance, will come to the conclusion that there has been
due application of mind by the Magistrate and it is a well reasoned order.
The order of the High
Court passed on a Criminal Revision under Sections 397 and 401 of the code (not
under Section 482) at the instance of Dr. Mrs. Nupur Talwar would also show that
there has been a proper application of mind and a detailed speaking order has
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?
feel constrained to observe that at this stage, this Court should exercise utmost
restrain and caution before interfering with an order of taking cognizance by
the Magistrate, otherwise the holding of a trial will be stalled. The superior
Courts should maintain this restrain to uphold the rule of law and sustain the faith
of the common man in the administration of justice.
in this connection may be made to a three Judge Bench decision of this Court in
the case of M/s. India Carat Private Ltd. Vs. State of Karnataka & Anr. (1989)
2 SCC 132. Explaining the relevant principles in paragraphs 16, Justice
Natarajan, speaking for the unanimous three Judge Bench, explained the position
so succinctly that we would rather quote the observation: as under:-
"The position is,
therefore, now well settled that upon receipt of a police report under Section 173(2)
a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b)
of the Code even if the police report is to the effect that no case is made out
against the accused.
The Magistrate can
take into account the statements of the witnesses examined by the police during
the investigation and take cognizance of the offence complained of and order
the issue of process to the accused. Section 190(1)(b) does not lay down that a
Magistrate can take cognizance of an offence only if the investigating officer gives
an opinion that the investigation has made out a case against the accused.
The Magistrate can ignore
the conclusion arrived at by the investigating officer; and independently apply
his mind to the facts emerging from the investigation and take cognizance of the
case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct
the issue of process to the accused..."
well settled principles still hold good. Considering these propositions of law,
we are of the view that we should not interfere with the concurrent order of the
Magistrate which is affirmed by the High Court.
are deliberately not going into various factual aspects of the case which have been
raised before us so that in the trial the accused persons may not be prejudiced.
We, therefore, 18dismiss this appeal with the observation that in the trial which
the accused persons will face, they should not be prejudiced by any observation
made by us in this order or in the order of the High Court or those made in the
Magistrate's order while taking cognizance. The accused must be given all
opportunities in the trial they are to face. We, however, observe that the trial
should be expeditiously held.
appeal is accordingly disposed of.
(ASOK KUMAR GANGULY)
(JAGDISH SINGH KHEHAR)