# NUPUR T ALWAR v. CENTRAL BUREAU OF INVESTIGATION & ANR

- **Citation:** [2012] 6 S.C.R. 723
- **Court:** Supreme Court of India
- **Decided:** 2012-06-07
- **Case number:** Criminal Appeal No. 68 of 2012
- **Bench:** Jagdish Singh Khehar, A.K. Patnaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nupur-t-alwar-v-central-bureau-of-investigation-anr-28228
- **Pages:** 64

## Headnote

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
8
reje_cting the closure report as well as protest petition - Taking
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
INVESTIGATION & ANR.
Per: A.K. Patnaik. J.:
725
Kewal Krishan v. Suraj Bhan and Anr. 1980 (Supp) SCC
499 - relied on.
A
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 inform

## Text

_Characters 0–39,956 of 122,821. This is a partial read: ask again with offset=39956 for what follows._

[2012] 6 S.C.R. 723
NUPUR T ALWAR
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
8
reje_cting the closure report as well as protest petition - Taking
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
INVESTIGATION & ANR.
Per: A.K. Patnaik. J.:
725
Kewal Krishan v. Suraj Bhan and Anr. 1980 (Supp) SCC
499 - relied on.
A
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 7 45: 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.
H
2000 (1) SCR 27
2000 (2) SCR 566
Relied on
Relied on
Para 9
Para 9
NUPUR TALWAR v. CENTRAL BUREAU OF
727
INVESTIGATION & ANR.
2003 (2) SCR 621
Relied on
Para 9
(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
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
In the Judgment of A.K. Patnaik, J.
1980 (Supp) sec 499
Relied on
Para 5
2000 (2) SCR 566
Referred to
Para 7
2003 (2) SCR 621
Referred to
Para 7
1976 (0) Suppl. SCR 123
Relied on
Para 8
1977 (3) SCR 113
Distinguished Para 9
1996 (10) Suppl. SCR 880 Relied on
Para 10
CRIMINAL APPELLATE JURISDICTION: Review Petition
(Crl.): No. 85 of 2012.
IN
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
A
B
c
D
E
F
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."
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.
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
E
F
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
A
B
c
D
E
730
SUPREME COURT REPORTS
(2012) 6 S.C.R.
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
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
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
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
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.
H
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.
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 .
misconceived.
1
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.
H
3. During the course of investigation, besides Dr. Rajesh
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.
iii.
iv.
Dragging mark on steps only indicate that murder
has taken place somewhere other than the terrace.
On the clothes of Dr. Rajesh Talwar, only the blood
of Aarushi was found but there was no trace of
blood of Hemraj.
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.
F
G
H
A
B
c
D
E
F
G
H
736
SUPREME COURT REPORTS
[2012] 6 S.C.R.
v.
vi.
vii.
viii.
ix.
x.
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
the crime.
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
morning itself. In spite of best efforts, the
fingerprint(s) could not be identified.
The guards of the colony are mobile during night
and at the entrance they do not make any entry.
Therefore, their statements regarding movement of
persons may not be foolproof.
Scientific tests on Dr. Rajesh Talwar and Dr. Nupur
Talwar have not conclusively indicated their
involvement in the crime.
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
Talwar and Dr. Nupur Talwar, individually, in the
commission of crime.
A board of experts constituted during earlier
investigation team has given an opinion that the
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.
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
A
B
c
D
E
F
G
H
740
SUPREME COURT REPORTS
(2012] 6 S.C.R.
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"
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
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
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
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:
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
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
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
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
progress of proceedings in trial courts would
further be slowed down. We are coming
across interlocutory orders of Magistrates
E
F
· 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
A
B
c
D
E
F
G
742
SUPREME COURT REPORTS
[2012) 6 S.C.R.
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
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
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
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
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
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
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,
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:
D
''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 preF
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
G
_Code requires no explicit reasons to be stated
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.