Nupur Talwar vs Cbi & Anr

1. The instant controversy emerges out of a double murder, committed on the night intervening 15-16.5.2008. On having found the body of Aarushi Talwar in her bedroom in house no. L-32, Jalvayu Vihar, Sector 25, Noida, her father Dr. Rajesh Talwar got a first information report registered at Police Station Sector 20, Noida, on 16.5.2008. In the first information report Dr. Rajesh Talwar pointed the needle of suspicion at Hemraj, a domestic help in the household of the Talwars. On 17.5.2008 the dead body of Hemraj was recovered from the terrace of the same house, i.e., house no. L-32, Jalvayu Vihar, Sector 25, Noida, where Aarushi’s murder had also allegedly been committed.

2. The initial investigation into the double murder was carried out by the U.P. Police. On 29.5.2008 the State of Uttar Pradesh handed over the investigation to the Central Bureau of Investigation (hereinafter referred to as, the CBI), thereupon investigation was conducted by the CBI.

3. During the course of investigation, besides Dr. Rajesh Talwar, the needle of suspicion came to be pointed towards Krishna Thadarai, Rajkumar and Vijay Mandal. Dr. Rajesh Talwar was arrested on 23.5.2008. Originally a three days’ remand was granted to interrogate him to the U.P. Police. Dr. Rajesh Talwar remained in police and judicial custody from time to time, wherefrom, he was eventually released on bail on 11.7.2008. The other three individuals, namely, Krishna Thadarai, Rajkumar and Vijay Mandal were also arrested by the police. Since investigation against the aforesaid three could not be completed within the period of 90 days, they were ordered to be released on bail.

6. On 9.2.2011, the Magistrate rejected the closure report submitted by the CBI. The Magistrate also rejected, the prayer made in the protest petition for further investigation (by Dr. Rajesh Talwar). Instead, having taken cognizance, the Magistrate summoned Dr. Rajesh Talwar (father of Aarushi Talwar) and his wife Dr. Nupur Talwar (mother of Aarushi Talwar) for committing the murders of Aarushi Talwar and Hemraj, as also, for tampering with the evidence.

7. The aforestated summoning order dated 9.2.2011, was assailed by Dr. Nupur Talwar by filing a revision petition before the High Court of judicature at Allahabad (Criminal Revision Petition no. 1127 of 2011). The aforesaid Criminal Revision Petition came to be dismissed by the High Court vide an order dated 18.3.2011. Dissatisfied with the order passed by the High Court dated 18.3.2011, Dr. Nupur Talwar approached this Court by filing Special Leave Petition (Criminal) no. 2982 of 2011 (renumbered as Criminal Appeal no. 16 of 2011). The aforesaid Criminal Appeal was dismissed by this Court by an order dated 6.1.2012. Through the instant review petition, the petitioner Dr. Nupur Talwar has expressed the desire, that this Court reviews its order dated 6.1.2012 (dismissing Criminal Appeal no. 16 of 2011). The instant Review Petition was entertained, and notice was issued to the respondents. Lengthy arguments were advanced at the hands of the learned counsel representing the review petitioner. Learned counsel representing the CBI also went to great lengths, to repudiate the same. It emerged from the submissions advanced at the hands of the rival parties, that the focus of attack was against the order passed by the Magistrate dated 9.2.2011.

8. The order passed by the Magistrate on 9.2.2011 was startlingly criticized for being unnecessarily exhaustive. The Magistrate was accused of discussing the evidence in minute detail, and thereby, for having evaluated the merits of the controversy, well before the beginning of the trial. It was sought to be canvassed, that even if the Magistrate having taken cognizance, was satisfied that process deserved to be issued, he ought not have examined the factual intricacies of the controversy. The Magistrate, it was submitted, has the authority only to commit the controversy in hand, to a Court of Session, as the alleged offences emerging out of the first information report dated 16.5.2008, and the discovery of the murder of Hemraj thereafter, are triable only by a Court of Session. It was submitted, that the controversy had been examined as if, the Magistrate was conducting the trial. It was asserted, that a perusal of the order passed by the Magistrate dated 9.2.2011, gives the impression of the passing of a final order, on the culmination of trial. It was, therefore, submitted, that the order dated 9.2.2011 be set aside, as all the inferences, assumptions and conclusions recorded therein, were totally uncalled for.

11. On the basis of the foundational facts already recorded above, I shall examine the merits of the first submission advanced before the Court. First and foremost it needs to be remembered, that the CBI had submitted a closure report on 29.12.2010. The Magistrate could have accepted the report and dropped proceedings. The Magistrate, however, chose not to accept the CBI’s prayer for closure. Alternatively, the Magistrate could have disagreed with the report, by taking a view (as she has done in the present case) that there were sufficient grounds for proceeding further, and thereby, having taken cognizance, could have issued process (as has been done vide order dated 9.2.2011). A third alternative was also available to the Magistrate. The Magistrate could have directed the police to carry out further investigation. As noticed hereinabove, the Magistrate inspite of the submission of a closure report, indicating the absence of sufficient evidence, having taken cognizance, chose to issue process, and thereby, declined the third alternative as well. Since the CBI wanted the matter to be closed, it was appropriate though not imperative for the Magistrate to record reasons, for differing with the prayer made in the closure report. After all, the CBI would have surely wished to know, how it went wrong. But then, there are two other important factors in this case, which further necessitated the recording of reasons. Firstly, the complainant himself (Dr. Rajesh Talwar, who authored the first information report dated 16.5.2008) was being summoned as an accused. Such an action suggests, that the complainant was really the accused. The action taken by the Magistrate, actually reversed the position of the adversaries. The party which was originally pointing the finger, is now sought to be pointed at. Certainly, the complainant would want to know why. Secondly, the complainant (Dr. Rajesh Talwar) had filed a protest petition dated 25.1.2011, praying for a direction to the police to carry out further investigation. This implies that the CBI had not been able to procure sufficient evidence on the basis whereof, guilt of the perpetrators of the twin murders of Aarushi Talwar and Hemraj could be established. Whilst, the rival parties were pleading insufficient evidence, the Magistrate’s order dated 9.2.2011 issuing process, implies the availability of sufficient material to proceed against the accused. This second aspect in the present controversy, also needed to be explained, lest the Magistrate who had chosen to issue process against all odds, would have been blamed of having taken the decision whimsically and/or arbitrarily. Before rejecting the prayer made in the closure report, as also, the prayer made in the protest petition, it was appropriate though not imperative for the Magistrate to narrate, why she had taken a decision different from the one sought. Besides the aforesaid, there is yet another far more significant reason for recording reasons in the present matter. The incident involving the twin murders of Aarushi Talwar and Hemraj are triable by a Court of Session. The authority of the Magistrate was limited to taking cognizance and issuing process. A Magistrate in such a situation, on being satisfied, has the authority to merely commit the case for trial to a Court of Session, under Section 209 of the Code of Criminal Procedure. Section 209 is being extracted hereunder:

Seventhly, from the statements of Sunil Kumar Dorhe, Naresh Raj, Ajay Kumar and Dinesh Kumar recorded during the course of investigation, it was sought to be inferred, that the private parts of the deceased Aarushi Talwar were tampered with, inasmuch as, the white discharge was found only in the vaginal area of Aarushi Talwar indicating, that her private parts were cleaned after her death. The said white discharge was found not to be originating from the body of the deceased. The aforesaid inference was sought to be further supported by assertions, that the vaginal opening of Aarushi Talwar, at the time of the post mortem examination, was unusually wide. Accordingly, a deduction was made, that evidence had been tampered with, by those inside the flat, after the occurrence.

Ninthly, in paragraph 15 of the Magistrate’s order dated 9.2.2011 it is noticed, that a request was made to Dr. Sunil Kumar Dhore for not mentioning the word “rape” in the post mortem proceedings. Investigation also established, that Dr. Dinesh Talwar (brother of Dr. Rajesh Talwar), had spoken to Dr. Sunil Kumar Dhore and exerted influence over Dr. Sunil Kumar Dhore through Dr. Dogra who allegedly instructed Dr. Sunil Kumar Dhore in connection with the post mortem examination. On the basis of the aforesaid material highlighted in the order dated 9.2.2011, the Magistrate further expressed the view, that influence was allegedly being exerted on behalf of the accused, on the doctor who was conducting the post mortem examination.

Besides the aforesaid conspicuous facts depicted in the order passed by the Magistrate, a large number of other similarly significant facts, have also been recorded, in the order dated 9.2.2011. The same are not being mentioned herein, as the expressive and weighty ones, essential to arrive at a determination on the issue in hand, have already been summarized above. Based inter alia on the inferences and the assumptions noticed above, the Magistrate issued process by summoning Dr. Rajesh Talwar and Dr. Nupur Talwar.

15. In order to canvass the primary ground raised for assailing the order of the Magistrate dated 9.2.2011, it was submitted, that the Magistrate would have arrived at a conclusion, different from the one drawn in the order dated 9.2.2011, if the matter had been examined in its correct perspective, by taking a holistic view of the statements and materials recorded during investigation. It is sought to be canvassed, that a perusal of the impugned order reveals, that too much emphasis was placed on certain incorrect facts, and further, certain vital and relevant facts and materials were overlooked. In sum and substance it was submitted, that if the factual infirmities were corrected, and the facts overlooked were given due weightage, the conclusions drawn by the Magistrate in the order dated 9.2.2011, would be liable to be reversed. To appreciate the instant contention advanced at the hands of the learned counsel for the petitioners, I am summarizing hereunder, the factual aspects highlighted by the learned counsel for the petitioner during the course of hearing:-

22. I shall now embark upon the last aspect of the matter, namely, the propriety of the petitioner in filing the instant Review Petition. The parameters within which an order taking cognizance and/or an order issuing process needs to be passed, have already been dealt with above. It is apparent from my determination, that the matter of taking cognizance and/or issuance of notice, is based on the satisfaction of the Magistrate. In the conclusions recorded hereinabove, while making a reference to past precedent, I have concluded, that it is not essential for the concerned Magistrate to record reasons or to pass a speaking order demonstrating the basis of the satisfaction, leading to issuance of process. Despite the same, the Magistrate while issuing process vide order dated 9.2.2011, had passed a detailed reasoned order. The order brings out the basis of the Magistrate’s satisfaction. The aforesaid order dated 9.2.2011 came to be assailed by the petitioner before the High Court of judicature at Allahabad through Criminal Revision Petition no.1127 of 2011. The High Court having concluded, that the satisfaction of the Magistrate was well found, dismissed the Revision Petition vide an order dated 18.3.2011. The High Court expressly affirmed that the order dated 9.2.2011 had been passed on the basis of record available before the High Court, and on the basis of the Magistrate’s satisfaction, that process deserved to be issued. The petitioner approached this Court by filing Special Leave Petition (Criminal) no.2982 of 2011 (renumbered as Criminal Appeal no. 16 of 2011). While dismissing the aforesaid Criminal Appeal vide order dated 6.1.2012 this Court in paragraph 11 observed as under :

2. As the facts have been dealt with in detail in the order of my learned brother, I have not felt the necessity of reiterating those facts in my order, except stating the following few facts: The Magistrate by a detailed order dated 09.02.2011 rejected the closure report submitted by the CBI and took cognizance under Section 190 Cr.P.C. and issued process under Section 204, Cr.P.C. to the petitioner and her husband, Dr. Rajesh Talwar, for the offence of murder of their daughter Aarushi Talwar and their domestic servant Hemraj on 16.05.2008 under Section 302/34 IPC and for the offence of causing disappearance of evidence of offence under Section 201/34 IPC. The order dated 09.02.2011 of the Magistrate was challenged by the petitioner in Criminal Revision No.1127 of 2009 before the High Court of Judicature at Allahabad, but the High Court dismissed the Criminal Revision by order dated 18.03.2011. The order of the High Court was thereafter challenged by the petitioner in S.L.P. (Crl.) No.2982 of 2011 in which leave was granted by this Court and the S.L.P. was converted to Criminal Appeal No.16 of 2011. Ultimately, however, by order dated 06.01.2011, this Court dismissed the Criminal Appeal and the petitioner has filed the present Review Petition against the order dismissing the Criminal Appeal.

In view of the aforesaid shortcomings in the evidence, it is felt that sufficient evidence is not available to prove the offence(s) U/s 302/201 IPC against accused Dr. Rajesh Talwar beyond reasonable doubt. It is, therefore, prayed that the case may be allowed to be closed due to insufficient evidence.”

Most certainly, an order delineating reasons cannot be faulted on the ground that it has occasioned failure of justice. Therefore, even without examining the matter any further, it would have been sufficient to conclude the issue. The present situation, however, requires a little further elaboration. Keeping in mind the peculiarity of the present matter and the special circumstances arising in this case, some observations need to be recorded. Accordingly, to determine whether reasons ought to have been recorded by the Magistrate, in this case, is being dealt with in the succeeding paragraphs.

24. Dismissed.

…………………………….J. (Jagdish Singh Khehar) New Delhi;

June 7, 2012.

I have carefully read the order of my learned brother Khehar, J. and I agree with his conclusion that this Review Petition will have to be dismissed, but I would like to give my own reasons for this conclusion.

3. The petitioner is aggrieved by the order dated 09.02.2011 of the Magistrate taking cognizance under Section under Section 190 Cr. P.C. and issuing process under Section 204 Cr.P.C. against her and her husband. As admittedly there are offences committed in respect of the two deceased persons, Aarushi and Hemraj, there cannot be any infirmity in the order of the Magistrate taking cognizance. Hence, the only question that we are called upon to decide is whether the Magistrate was justified in issuing the process to the petitioner and her husband by her order dated 09.02.2011.

11. For these reasons, I agree with my learned brother Khehar, J. that this Review Petition has no merit and should be dismissed.

….………………….J. (A. K. Patnaik) New Delhi, June 07, 2012.