Dr Mrs Nupur Talwar vs Cbi Delhi And Anr

C.B.I., Delhi) refused to interfere with

Magistrate's order of taking cognizance.

4. By 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.

3

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."

5. The 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.

6. Initially, 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,

4

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:

"i. 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.

ii. That the investigation of this case is

still pending and all the facts and

circumstances of the case are being

investigated.

iii. That during investigation, the role of

accused Rajesh Talwar was thoroughly

investigated regarding the aforesaid

crime.

iv. That during investigation, the poly

right to psychological analysis test

of accused Rajesh Talwar was conducted

and no deception has been found in the

test reports.

5

v. That 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 the crime.

vi. That 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 be extended."

7. On 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.

8. Thereafter, the C.B.I. filed another closure

6

report 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,

quoted above.

9. It 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.

10. Attention 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 the

appellant.

7 11. Sitting 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

8

there 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.

9

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 guilt."

12. Assailing 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.

13. The High Court passed its order dated 18th

11

March, 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.

14. In 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."

15. On 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."

16. Since then, the matter has remained pending

before this Court.

17. Now 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.

18. Section 190 of the Code lays down the

conditions which are requisite for the initiation

of a criminal proceeding.

19. At 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

13

of the views expressed by the Police in its

report and may prima facie find out whether an

offence has been made out or not.

20. The 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.

21. At 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.

22. The 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

14

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)

15

23. The 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 been passed.

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

16

stage, this Court should exercise utmost restrain

and caution before interfering with an order of

taking cognizance by the Magistrate,otherwise the

holding of a trial will be stalled. The superior

Courts should maintain this restrain to uphold

the rule of law and sustain the faith of the

common man in the administration of justice.

26. Reference in this connection may be made to

a three Judge Bench decision of this Court in the

case of M/s. India Carat Private Ltd. Vs. State

of Karnataka & Anr. (1989) 2 SCC 132. Explaining

the relevant principles in paragraphs 16, Justice

Natarajan, speaking for the unanimous three Judge

Bench, explained the position so succinctly that

we 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

17

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..."

27. These well settled principles still hold

good. Considering these propositions of law, we

are of the view that we should not interfere with

the concurrent order of the Magistrate which is

affirmed by the High Court.

28. We are deliberately not going into various

factual aspects of the case which have been

raised before us so that in the trial the accused

persons may not be prejudiced. We, therefore,

18

dismiss this appeal with the observation that in

the trial which the accused persons will face,

they should not be prejudiced by any observation

made by us in this order or in the order of the

High Court or those made in the Magistrate's

order while taking cognizance. The accused must

be given all opportunities in the trial they are

to face. We, however, observe that the trial

should be expeditiously held.

29. The appeal is accordingly disposed of.

.............................J.

(ASOK KUMAR GANGULY)

.............................J.

(JAGDISH SINGH KHEHAR)

NEW DELHI,

06-01-2012