Rajesh Talwar vs C.B.I & Ors

2. Before dealing with the grounds raised by the petitioners, it is necessary to briefly record the sequence of events leading to the filing of the instant transfer petitions. The prosecution under reference pertains to the murder of Aarushi Talwar, daughter of the two petitioners, namely, Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar, on the night intervening 15.5.2008 and 16.5.2008. On 16.5.2008, Dr. Rajesh Talwar got a first information report registered at police station, Sector 20, Noida, alleging that their domestic help Hemraj had committed the murder of their daughter Aarushi Talwar. On the following day, i.e., on 17.5.2008, the body of Hemraj was also found on the roof of the petitioners' residence. Hemraj had also been murdered. On 23.5.2008, Dr. Rajesh Talwar was arrested by the State Police. On 24.5.2008, Dr. Rajesh Talwar was produced before the Chief Judicial Magistrate, Gautam Buddh Nagar. On 27.5.2008, the Chief Judicial Magistrate, granted police custody of Dr. Rajesh Talwar till 30.5.2008. Even though the matter was originally investigated by the State Police, on 29.5.2008, investigation was transferred to the Central Bureau of Investigation (hereinafter referred to 3 as "the CBI"). The CBI then recorded a separate first information report. On 30.5.2008, Dr. Rajesh Talwar was sent to judicial custody.

3. Having concluded the investigation, the CBI filed an application (purported to be an application under Section 169 of the Code of Criminal Procedure), asserting lack of incriminating evidence against Dr. Rajesh Talwar. In the application it was also asserted, that further judicial custody of Dr. Rajesh Talwar was unnecessary. Accordingly, on 11.7.2008, the Special Judicial Magistrate (CBI) Ghaziabad, ordered the release of Dr. Rajesh Talwar, on bail.

4. On 29.12.2010, a closure report was submitted by the CBI before the Special Judicial Magistrate (CBI) Ghaziabad. It was contended therein, that sufficient evidence was not available to prove the guilt of Dr. Rajesh Talwar, in the murder of his daughter Aarushi Talwar. Accordingly, a prayer was made for the closure of the case due to insufficient evidence. Since Dr. Rajesh Talwar was the author of the first information report dated 16.5.2008, notice of the aforesaid application came to be issued to him. On 25.1.2011, Dr. Rajesh Talwar filed a detailed protest petition. By an order dated 9.2.2011, the Special Judicial Magistrate (CBI) Ghaziabad, rejected the prayer made by the CBI for closure of the case due to insufficient evidence. Simultaneously, the Magistrate summoned Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar to face trial under Section 302 read with Section 34 and Section 201 read with Section 34 of the 4 Indian Penal Code. The summoning order dated 9.2.2011 was assailed by the petitioners by filing Criminal Revision no. 1127 of 2011 before the High Court of Judicature at Allahabad. The aforesaid challenge made under Section 482 of the Code of Criminal Procedure, was rejected by the High Court on 18.3.2011. Dr. Rajesh Talwar assailed the order passed by the High Court by filing Special Leave Petition (Crl.) No. 2981 of 2011, whereas, the said order was assailed by Dr. Mrs. Nupur Talwar by filing Special Leave Petition (Crl.) No. 2982 of 2011. The challenge raised by the petitioners was declined by this Court vide an order dated 6.1.2012 (in Special Leave Petition (Crl.) No. 2982 of 2011 filed by Dr. Mrs. Nupur Talwar) and on 9.1.2012 (in the Special Leave Petition (Crl.) No. 2981 of 2011 filed by Dr. Rajesh Talwar). The aforesaid rejection order dated 9.1.2012 is being extracted hereinbelow:-

32. For the aforestated reasons, as at present, we do not find any merit in the request of CBI for transfer of the trial from Ghaziabad to any other place. Accordingly, the prayer is declined. The trial court is directed to proceed with the case expeditiously."

14. A perusal of the charge-sheet containing all these details clearly shows that witnesses to be examined are not only from Jaipur, Rajasthan, but also from various other places including Mumbai. Though the petitioners may have a little inconvenience, the mere inconvenience may not be sufficient ground for the exercise of power of transfer but it must be shown that the trial in the chosen forum will result in failure of justice.

19. For the reasons stated hereinabove, we find no merit in the Transfer Petitions separately filed by Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar. It is not possible in the facts and circumstances of this case for us to conclude, that the petitioners will be deprived of a free and fair trial at Ghaziabad. We are also satisfied that there is no well-substantiated apprehension, that justice will not be dispensed to the petitioners impartially, objectively and without any bias. It is also not possible for us to accept that the physical assault on Dr. Rajesh Talwar on 25.1.2011 at the hands of a psychopath can be a valid basis for transfer of the present proceedings from Ghaziabad to Delhi/New Delhi. In view of the measures adopted by the Sessions Judge, the CBI and the State Administration towards security arrangements in the court-premises generally, and also, the special arrangements which the respondents have undertaken to make, with particular reference to the petitioners, we are satisfied that justice will be dispensed to the petitioners in an atmosphere shorn of any fear or favour. We have extracted the order passed by the Special Judicial Magistrate (CBI), Ghaziabad, U.P. dated 25.1.2011 in paragraph 16 hereinabove. We wish to reiterate, that the order dated 25.1.2011 shall be enforced in letter and in spirit. In case of breach thereof we would expect the Special Judicial Magistrate (CBI), Ghaziabad, U.P. to take 41 appropriate steps including coercive measures if necessary, to enforce the same. The majesty of law must be maintained at all costs. We have no doubt, that the basis on which the petitioners are seeking transfer of proceedings are just speculative and unjustified apprehensions based interalia on vague and non-specific allegations. The instant Transfer Petitions are accordingly dismissed. We also wish to caution the petitioners, from making any irresponsible insinuations with reference to court-proceedings. The proper course would be, to assail before a superior court, any order which may not be to the satisfaction of the petitioners, in accordance with law.

March 2, 2012