# RAJESH TALWAR v. C.B.I. & ORS

- **Citation:** [2012] 4 S.C.R. 841
- **Court:** Supreme Court of India
- **Decided:** 2012-03-02
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajesh-talwar-v-c-b-i-ors-28426
- **Pages:** 40

## Headnote

[2012] 4 S.C.R. 841
RAJESH TALWAR
v.
C.B.I. & ORS.
(Transfer Petition (Crl.) No. 45 of 2012 etc.)
MARCH 02, 2012
[DR. B.S. CHAUHAN AND JAGDISH SINGH KHEHAR,
JJ.)
A
B
Code of Criminal Procedure, 1973 - s. 406 - Transfer of
proceedings under - Petitioners seeking transfer of C
proceedings from the courl of the Special Judicial Magistrate
(CBI), Ghaziabad, U.P., to a courl of competent jurisdiction
in Delhi/New Delhi - Grounds of inconvenience of the
petitioner to travel long distance to parlicipate in the courl
proceedings; threatened personal security on account of o
physical assault on the petitioner at the hands of psychopath,
resulting in grievous injuries to him as a/so other grounds
raised - Held: Inconvenience of traveling a distance of merely
52 Kms. from Delhi to Ghaziabad would not be such as can
be the basis for seeking transfer - Jurisdiction of a courl to
E
conduct criminal prosecution is based on the provisions of
Code of Criminal Procedure - Complainant or an accused
may have to travel across several States to reach the
jurisdictional courl - Witnesses a/so travel in order to depose
before the courl - If the plea of inconvenience is accepted, the
F
provisions earmarking the courls having jurisdiction to try
cases would be rendered meaningless - As regards
threatened personal security, it is a/so not possible to accept
that the physical assault on the petitioner 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 G
the measures adopted by the Sessions Judge, the CBI and
the State Administration towards security arrangements in the
courl-premises generally, and a/so, the special arrangements
841
H
842
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A which the respondents have undertaken to make, with
particular reference to the petitioners, justice would be
dispensed to the petitioners in an atmosphere shorn of any
fear or favour - Order passed by the Special Judicial
Magistrate (CBI), Ghaziabad, U.P. that during the proceedings
B no person shall be allowed to enter in the court room except
for the parties to the case and their respective counsel to be
enforced in letter and in spirit - In case of breach, the Special
Judicial Magistrate (CBI), Ghaziabad, U.P. to take appropriate
steps including coercive measures if necessary, to enforce
c the same - The majesty of law must be maintained at all costs
- Based on certain insinuations against the presiding officer
of the trial court, the petitioners asserted that they were not
likely to get justice, as the concerned court was proceeding
in the matter with a pre-determined mmd - Said ground was
0 not pressed during the course of hearing - Even raising such
a ground in the pleadings can certainly be termed as most
irresponsible - Insinuations can also be stated to have been
aimed even at the High Court as the said order was also
challenged before the High Court but it failed - Petitioners are
E cautioned from making any irresponsible insinuations with
reference to court-proceedings - 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 - The
further ground for transfer of case that they were prevented
from discharging their responsibility appropriately, are vague,
F and as such, cannot be the basis of a justifiable claim for
transfer of proceedings, uls. 406 - Neither the application nor
the affidavit disclose that the petitioner's counsel were
prevented from as also the identity of those responsible - It
cannot be concluded that the petitioners would be deprived
G of a free and fair trial at Ghaziabad - There is no we/1substantiated apprehension that justice would not be
dispensed to the petitioners impartially, objectively and
without any bias - The basis on which transfer of proceedings
was sought, being just speculative and unjustified
H
RAJESH TALWAR v. C.B.I. & ORS.
843
apprehensions based inter a

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[2012] 4 S.C.R. 841
RAJESH TALWAR
v.
C.B.I. & ORS.
(Transfer Petition (Crl.) No. 45 of 2012 etc.)
MARCH 02, 2012
[DR. B.S. CHAUHAN AND JAGDISH SINGH KHEHAR,
JJ.)
A
B
Code of Criminal Procedure, 1973 - s. 406 - Transfer of
proceedings under - Petitioners seeking transfer of C
proceedings from the courl of the Special Judicial Magistrate
(CBI), Ghaziabad, U.P., to a courl of competent jurisdiction
in Delhi/New Delhi - Grounds of inconvenience of the
petitioner to travel long distance to parlicipate in the courl
proceedings; threatened personal security on account of o
physical assault on the petitioner at the hands of psychopath,
resulting in grievous injuries to him as a/so other grounds
raised - Held: Inconvenience of traveling a distance of merely
52 Kms. from Delhi to Ghaziabad would not be such as can
be the basis for seeking transfer - Jurisdiction of a courl to
E
conduct criminal prosecution is based on the provisions of
Code of Criminal Procedure - Complainant or an accused
may have to travel across several States to reach the
jurisdictional courl - Witnesses a/so travel in order to depose
before the courl - If the plea of inconvenience is accepted, the
F
provisions earmarking the courls having jurisdiction to try
cases would be rendered meaningless - As regards
threatened personal security, it is a/so not possible to accept
that the physical assault on the petitioner 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 G
the measures adopted by the Sessions Judge, the CBI and
the State Administration towards security arrangements in the
courl-premises generally, and a/so, the special arrangements
841
H
842
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A which the respondents have undertaken to make, with
particular reference to the petitioners, justice would be
dispensed to the petitioners in an atmosphere shorn of any
fear or favour - Order passed by the Special Judicial
Magistrate (CBI), Ghaziabad, U.P. that during the proceedings
B no person shall be allowed to enter in the court room except
for the parties to the case and their respective counsel to be
enforced in letter and in spirit - In case of breach, the Special
Judicial Magistrate (CBI), Ghaziabad, U.P. to take appropriate
steps including coercive measures if necessary, to enforce
c the same - The majesty of law must be maintained at all costs
- Based on certain insinuations against the presiding officer
of the trial court, the petitioners asserted that they were not
likely to get justice, as the concerned court was proceeding
in the matter with a pre-determined mmd - Said ground was
0 not pressed during the course of hearing - Even raising such
a ground in the pleadings can certainly be termed as most
irresponsible - Insinuations can also be stated to have been
aimed even at the High Court as the said order was also
challenged before the High Court but it failed - Petitioners are
E cautioned from making any irresponsible insinuations with
reference to court-proceedings - 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 - The
further ground for transfer of case that they were prevented
from discharging their responsibility appropriately, are vague,
F and as such, cannot be the basis of a justifiable claim for
transfer of proceedings, uls. 406 - Neither the application nor
the affidavit disclose that the petitioner's counsel were
prevented from as also the identity of those responsible - It
cannot be concluded that the petitioners would be deprived
G of a free and fair trial at Ghaziabad - There is no we/1substantiated apprehension that justice would not be
dispensed to the petitioners impartially, objectively and
without any bias - The basis on which transfer of proceedings
was sought, being just speculative and unjustified
H
RAJESH TALWAR v. C.B.I. & ORS.
843
apprehensions based inter alia on vague and non-specific
A
allegations stands dismissed - Transfer petition.
Maneka Sanjay Gandhi vs. Rani Jethmalani (1979) 4
SCC 167; Zahira Habibulla H. Sheikh vs. State of Gujarat,
(2004) 4 SCC 158; Ravir Godbole vs. State of M.P. (2006) 9
SCC 786; Sri Jayendra Saraswathy Swamigal (II}, Tamil Nadu
B
v. State of Tamil Nadu (2005) 8 SCC 771: 2005 (4 ) Suppl.
SCR 556; Central Bureau of Investigation (CBI) v. Hopeson
Ningshen (2010) 5 SCC 115: 2010 (5) SCR 666; Surendra
Pratap Singh v. State of Uttar Pradesh (2010) 9 SCC 475:
2010 (11) SCR 909; Nahar Singh Yadav v Union of India
C
(2011) 1 SCC 307; Vikas Kumar Roorkewal v. State of
Uttarakhand (2011) 2 SCC 178: 2011 (1 ) SCR 279; Jahid
Shaikh v. State of Gujarat (2011) 7 SCC 762; Bhairu Ram v.
Central Bureau of Investigation (2010) 7 SCC 799: 2010 (9 )
SCR 554; Jyoti Mishra v. Dhananjaya Mishra (2010) 8 SCC
D
803: 2010 (10 ) SCR 229 - referred to.
Case Law Reference:
(1979) 4 sec 167
Referred to
Para 6
(2004) 4 sec 158
Referred to
Para 6
(2006) 9 sec 786
Referred to
Para 6
2005 (4) Suppl. SCR 556 Referred to
Para 13
2010 (5) SCR 666
Referred to
Para 6, 13
2010 (11) SCR 909
Referred to
Para 13
2011 (1) SCR 279
Referred to
Para 13
(2011 > 1 sec 762
Referred to
Para 13
2010 (9) SCR 554
Referred to
Para 15
2010 (10) SCR 229
Referred to
Para 15
CRIMINAL ORIGINAL JURISDICTION : Transfer Petition
(Crl.) No. 45 of 2012 etc.
E
F
G
H
844
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A
Petition Under Section 406 of Code of Crl. Procedure.
WITH
T.P.(Crl.) No. 46 of 2012.
Mukul Rohatgi, Pinaki Mishra, R.N. Karanjawala, Sanjiv
B Sen, Manik Karanjawala, Sandeep Kapur, Shivek Trehan, Jai
Dehadrai (for Karanjawala & Co.), Praveen Rai, Avinash Kumar
for the Appellant.
H.P. Raval, ASG, Ratnakar Dash, Shail K. Dwivedi, AAG,
P. K. Dey, Padmalakshmi Nigam, Farukh Rasheed, Arvind
C Kumar Sharma, Rajeev, K. Dubey Kamlendra Mishra for the
Respondents.
D
The order of the Court was delivered
ORDER
1. Dr. Rajesh Talwar has filed Transfer Petition (Crl.) no.
45 of 2012 and Dr. Mrs. Nupur Talwar has filed Transfer Petition
(Crl.) no. 46 of 2012. These petitions have been filed under
Section 406 of the Code of Criminal Procedure, 1973, praying
for the transfer of Special Case No. 01/2011 pending before
E the Court of the Special Judicial Magistrate (CBI) Ghaziabad,
U.P., to a Court of competent jurisdiction at Delhi/New Delhi.
Both these petitions are being disposed of by a common order,
because the prayers made are identical and are based on the
same grounds, arising out of the same factual background.
F
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
G 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,
Naida, alleging that their domestic help Hemraj had committed
the murder of their daughter Aarushi Talwar. On the following
H day, i.e., on 17.5.2008, the body of Hemraj was also found on
RAJESH TALWAR v. C.B.I. & ORS.
845
the roof of the petitioners' residence. Hemraj had also been
A
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
B
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 as "the CBI"). The CBI
then recorded a separate first information report. On 30.5.2008,
Dr. Rajesh Talwar was sent to judicial custody.
c
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
D
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.
E
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
F
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
G
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 Indian Penal Code. The summoning
order dated 9.2.2011 was assailed by the petitioners by filing
H
846
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A 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
B (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
C 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:-
"We have heard learned counsel for the parties. It appears
that pursuant to the order of this Hon'ble Court in Criminal
D
Appeal No. 68 of 2012 titled "Dr. Mrs. Nupur Talwar versus
C.B.I. Delhi & Anr.", whereby this Hon'ble Court upheld the
order dated 9.2.2011 of the Special Judicial Magistrate
(CBI), Ghaziabad in Special Case No. 01 of 2011
whereby cognizance was taken, the petitioner herein would
E
appear before the Special Judicial Magistrate (CBI),
Ghaziabad on 4.2.2012 which, we understand, is the date
fixed for hearing.
It is also not in dispute that the petitioner Dr. Rajesh
Talwar is on bail since 2008 virtually by an order dated 11th
F
July, 2008 and he also furnished bail bond pursuant to that
order. In that view of the matter, we direct the petitioner -
Dr. Rajesh Talwar to remain on bail. It is understood that
the petitioner has already deposited his passport and the
same is lying with the Court of the learned Magistrate. In
G
the meantime, the petitioner shall not leave the local Police
Station without obtaining the permission of the learned
Magistrate.
H
With this order, the present Special Leave Petition
is disposed of. We make it clear that this order will not
RAJESH TALWAR v. C.B.I. & ORS.
847
prevent either of the parties from moving such application
A
as they are entitled to in accordance with law."
5. The instant two transfer petitions seeking transfer of the
proceedings in Special Case No. 01/2011 from the Court of
Special Judicial Magistrate (CBI) Ghaziabad, to a Court of
competent jurisdiction at Delhi/New Delhi, have been
B
separately filed by Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar,
primarily on the grounds of convenience and personal security.
During the course of hearing, learned counsel for the petitioners
raised the following contentions on the issue of convenience:-
(i)
It was submitted, that after the murder of Aarushi
C
Talwar on the night intervening 15.5.2008 and
16.5.2008, for the petitioners to reside in the same
premises where the murder of their daughter had
been committed, had become impossible.
Consequently, they had shifted their residence from
D
Neida to New Delhi. As such, it was submitted that
(ii)
it would be more convenient for the petitioners to
face trial in Delhi/New Delhi rather than at
Ghaziabad.
E
Ghaziabad, it was pointed out, was farther away
F
from Neida (where the murder was committed) than
New Delhi. In this behalf, it was submitted, that
distance between Neida and Ghaziabad is 35
kms., whereas, the distance between Neida and
New Delhi is only 17 kms. Based on the traffic
situation between Delhi and Ghaziabad, it was
submitted, that the petitioners would have to
undertake several hours of travel time to attend
Court proceedings on each date of hearing. This
inconvenience could be avoided if the proceedings
G
in question were transferred from Ghaziabad to
Delhi/New Delhi.
(iii)
It was pointed out, that since the first information
report was lodged by the CBI at New Delhi itself,
H
A
B
c
D
848
SUPREME COURT REPORTS
[2012] 4 S.C.R.
there would be no difficulty in proceeding with the
case at Delhi itself.
(iv)
It was also contended, that holding trial before a
Court of competent jurisdiction at Delhi/New Delhi
would also be a matter of convenience to the
prosecuting agency, inasmuch as, the counsel, as
also the officials/officers of the CBI were Delhi/New
Delhi based, and they too would not have to travel
to Ghaziabad on each date of hearing.
(v)
Lastly, it was asserted, that a large number of
witnesses would also have to be summoned from
outside U.P. It was also pointed out, that these
witnesses would have to unnecessarily travel to
Ghaziabad. Just like the petitioners, all outside
witnesses would likewise face avoidable
inconvenience, if the prayer made in the instant
petition is accepted.
6. On the issue of personal security, learned counsel for
the petitioners contended, that when the petitioners had gone
E to attend court proceedings at Ghaziabad on 25.1.2011, and
whilst they were physically inside the court premises alongwith
their lawyers, Dr. Rajesh Talwar faced a vicious attack at the
hands of one Utsav Sharma, with a cleaver knife. It was
submitted, that Dr. Rajesh Talwar suffered grievous injuries and
was rushed to undergo several reconstructive surgeries in the
F intensive care unit of the lndraprastha Apollo Hospital, New
Delhi. While explaining the assault, it was pointed out, that Dr.
Rajesh Talwar was given three blows with the meat cleaver
causing a grevious injury on the right side of his forehead, which
also resulted in the rupture of a major artery, and also, serious
G injuries on both of his hands. It was also alleged, that Dr. Rajesh
Talwar was rendered handicapped as a result of the injuries
inflicted upon him by Utsav Sharma, for more than two months.
It was pointed out, that a first information report was registered
by Dr. Dinesh Talwar (brother of Dr. Rajesh Talwar) at police
H station Kavi Nagar, Ghaziabad on 25.1.2011, in connection
RAJESH TALWAR v. C.B.I. & ORS.
849
with the aforesaid assault. The aforesaid encounter within the
A
court premises, according to learned counsel for the petitioners,
has completely shaken the confidence of the petitioners. The
petitioners are stated to be under deep fear of attending courtproceedings at Ghaziabad after the said assault. Relying on
the judgment rendered by this Court in Maneka Sanjay Gandhi
B
Vs. Rani Jethmalani, (1979) 4 sec 167, it was asserted, that
this Court had authoritatively held, that the safety of the person
of an accused (as also, the complainant) is an essential
condition for participation in a criminal trial. Where safety itself
is put in peril by commotion, tumult or threat on account of c
pathological conditions prevalent in a particular venue, it was
submitted, a request as the one in the instant case, for transfer
of proceedings should be acceded to. Insofar as the present
case is concerned, it was submitted on behalf of the petitioners,
that the circumstances in the present case have gone far 0
beyond the possibility of a physical assault, inasmuch as, a
brutal physical attack has actually been made on Dr. Rajesh
Talwar (on 25.1.2011 ). Relying on the judgment rendered by this
Court in Zahira Habibul/a H. Sheikh Vs. State of Gujarat,
(2004) 4 sec 158, it was contended, that justice should not
E
only be done but it should be seen to be done. It was pointed
out, that where circumstances are such that render holding of
F
a fair and impartial trial, uninfluenced by extraneous
considerations impossible, an apprehension expressed by an
individual seeking transfer, should be accepted as reasonable.
Inviting the Court's attention to the incident of 25.1.2011, it was
submitted, that there could be no doubt, that in the
circumstances prevalent in the courts at Ghaziabad, the
apprehension expressed by the petitioners, that they are
unlikely to be subjected to a fair and impartial trial, uninfluenced
by extraneous considerations, is not unreal. Relying on the
G
judgment rendered by this Court in Central Bureau of
Investigation (CBI) Vs. Hopeson Ningshen, (2010) 5 SCC
115, it was submitted, that in a case wherein the CBI itself felt
that there was a real danger of the accused being physically
attacked during the course of the trial, this Court came to be
H
850
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A approached (by the CBI) for transfer of the venue of prosecution.
The prayer made by the CBI was acceded to by this Court by
observing, that there could be no quarrel, that there was a real
possibility of a physical attack on the respondent-accused so
long as he was at Manipur. Yet again, it is emphasized by the
B learned counsel appearing on behalf of the petitioners, that the
present case stands on a far better footing, inasmuch as, a
factual assault resulting in serious injuries has actually been
suffered by Dr. Rajesh Talwar within the court premises at
Ghaziabad. It is, therefore, contended, that the fear in the minds
c of the petitioners, is not imaginary. The fear in the minds of the
petitioners, is very real and bonafide. In order to support the
prayer of the petitioners on the facts delineated hereinabove,
learned counsel for the petitioners placed reliance on the
judgment rendered by this Court in Ravir Godbole Vs. State
0 of M.P., (2006) 9 sec 786. The order relied upon by the
petitioners is being extracted hereinbelow:-
E
F
G
H
"1.
We have heard counsel for the parties.
2.
The petitioner is being tried of an offence
punishable under Section 307 IPC. The trial was to
take place at Indore but, in view of the fact that the
rival gang has been after his blood and two
attempts were made on his life, the High Court
transferred his triai to Bhopal. It appears that even
during the trial at Bhopal he was attacked a third
time and serious injuries were caused to him
which necessitated his being admitted to the
hospital and an operation being performed to
repair his damaged liver.
3.
In these circumstances, the petitioner has prayed
that his case may be transferred to any court
outside the State of M. P. Counsel for the State
does not dispute the fact that the petitioner has
been attacked thrice during this period and he
does face danger to his life. Of course, the State
contends that it will provide him with protection such
RAJESH TALWAR v. C.B.I. & ORS.
851
as is considered necessary. We notice that a
A
gunman was deputed to provide security to the
petitioner but despite that he was attacked a third
time causing him serious injuries, and the gunman
deputed to protect him could do nothing except to
make himself scarce.
B
4.
In these facts and circumstances, we transfer
Sessions Trial No. 65 of 2004 pending before the
Special Court (Atrocities}, Bhopal Sessions Court,
Bhopal to the Court of the District and Sessions
Judge, Nasik who may try the case himself or C
assign the trial to a court of competent jurisdiction.
The record of the case shall be immediately
transmitted by the Bhopal Sessions Court to the
Court of the District and Sessions Judge, Nasik.
5.
This transfer petition is allowed."
(emphasis is ours)
7. It would be relevant to notice, that in the pleadings of
the two transfer petitions, the petitioners have raised a third
ground (besides those of convenience and personal security,
referred to in the foregoing paragraphs). No submissions were
addressed in connection therewith during the course of hearing.
Reference to the third ground has been made in this order only
because it was pointed out by the learned counsel representing
the CBI, that the petitioners had alleged, that they were not likely
D
E
F
to get justice, as it appeared to them, that the Ghaziabad court
was proceeding with the matter with a pre-determined mind.
The cause of the petitioners instant impression (as per the
pleadings), emerges from an application filed by Dr. Rajesh
Talwar on 28.2.2011 under Section 205 of the Code of Criminal
G
Procedure. In the aforesaid application, Dr. Rajesh Talwar had
sought exemption from personal appearance, on the ground
that he had suffered a physical assault in the court premises
on 25.1.2011, and had been advised bed rest. The Special
Judicial Magistrate (CBI) Ghaziabad, had rejected the
H
852
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A application for exemption, and issued bailable warrants against
Dr. Rajesh Talwar. Insofar as Dr. Mrs. Nupur Talwar is
concerned, she too had sought exemption from personal
appearance on the ground, that she had to file an affidavit at
Allahabad in a criminal revision petition, to assail the
B summoning order dated 9.2.2011 (refer to paragraph 4 above).
It is submitted, that the application filed by Dr. Mrs. Nupur Talwar
was also declined. In the order dated 28.2.2011 the Special
Judicial Magistrate (CBI) Ghaziabad, ordered issuance of
bailable warrants against the petitioners. From the aforesaid
C determination, it was sought to be inferred, that the petitioners
were not likely to get justice, as the Ghaziabad Court was
proceeding with the matter with a pre-determined mind.
8. During the course of hearing, another ground was also
canvassed on behalf of the petitioners, although no mention
D thereof had been made in the pleadings of the two transfer
petitions. During the course of hearing, our attention was invited
by the learned counsel appearing on behalf of the petitioners,
to an affidavit dated 24.2.2012 filed by Shri Praveen Kumar
Rai, Advocate. The said Shri Praveen Kumar Rai, in his
E affidavit, interalia deposed, that on 25.1.2011, the Special
Judicial Magistrate (CBI) Ghaziabad, had noticed the sensitivity
of the case and had, by invoking the court's inherent power
under Section 327 of the Code of Criminal Procedure, directed,
that no person would be allowed to enter the court-room except
F the parties to the case or their respective counsel; yet during
the course of hearing on 4.2.2012, a rot of media-persons and
advocates unrelated to the case, were present inside the courtroom. While dilating on the court proceedings conducted on
4.2.2012, without disclosing the identity of any particular
counsel/advocate, it was averred in paragraphs 5 and 6 (of the
G affidavit dated 24.2.2012) as under:-
"5.
That one of the advocates, who on earlier occasion
has been rebuked by the Ld. Magistrate and certain
strictures have also been passed against him as
H
well, was also present in the Court room. It is
RAJESH TALWAR v. C.B.I. & ORS.
853
pertinent to mention here that on 7 .1.2011 the said
A
counsel had filed an application and thereafter
during the course of arguments on the said
application misbehaved with the Court and others
therein. The Ld. Magistrate in her order dated
21.1.2011 while dismissing the application
B
disapproved the behaviour of the counsel and
passed strictures after warning him for future.
However, the said warning and strictures have not
affected him at all. He not only interfered in the
case, but also attempted to stop the counsels for C
the petitioner herein from advancing their
submissions. The deponent immediately brought
this to the notice of the Ld. Magistrate but to no
avail and the interruptions continued in the
proceedings. It is germane to state that the o
concerned advocate does not represent either the
prosecution or the accused person~ and thus, no
privilege of hearing can be extended to the
concerned advocate. A true translated copy of the
order dated 21.1.2011 is annexed herewith and
E
marked as Annexure A-2.
6.
That faced with such a perilous situation the
counsels did not have any option but to file an
application before the Ld. Magistrate for taking
appropriate actions and passing necessary
F
directions in the matter. The said application is still
pending. A photocopy of certified copy of the said
application dated 4.2.2012 is annexed herewith
and marked as Annexure A-3."
It is also necessary to extract hereunder the application dated
G
4.2.2012 (appended as Annexure A-3 to the affidavit dated
24.2.2012) of Shri Praveen Kumar Rai, counsel for Dr. Mrs.
Nupur Talwar:-
H
A
B
c
D
854
SUPREME COURT REPORTS
[2012] 4 S.C.R.
"Sir,
It is most respectfully submitted that in the above noted
case the applicants counsels appear before the Hon'ble
Court today to move application in the light of order passed
by Hon'ble Supreme Court in Transfer Petition. The
counsel for applicants were restrained by some other
Advocates who have no concern with the case during the
course of their submission. This happened even when, the
order passed by Hon'ble Court dated 25.1.2011 U/s 327
Cr.P.C. is still in force.
It is, therefore, most humbly prayed that in the above
said reason and in the interest of justice Hon'ble Court may
kindly restrained the persons and advocates who have no
concerned in the case by entering in the Court room during
the hearing of the case."
Based on the aforesaid factual position it is contended that the
petitioners have strong reservations whether unimpaired
proceedings are at all possible in the case in hand. It is
therefore contended, that it would be in the fitness of the matter,
E to transfer proceedings in the case, from Ghaziabad to Delhi/
New Delhi
9. We have recorded hereinabove the four different
grounds under which the petitioners have sought to press their
claim for transfer of the proceedings pending before the court
F of the Special Judicial Magistrate (CBI), Ghaziabad, U.P., to a
court of competent jurisdiction at Delhi/New Delhi. It would be
appropriate and in the fitness of matters to first record the
response of the learned Senior Counsel representing the CBI
to each of the issues. The submissions of the learned counsel
G representing the respondents are therefore being summarized
hereinafter:-
10. As noticed in paragraph 5 hereinabove, the foremost
contention seeking transfer of proceedings from Ghaziabad to
Delhi/New Delhi is based on the inconvenience of the
H petitioners to travel from New Delhi to Ghaziabad on each date
RAJESH TALWAR v. C.B.I. & ORS.
855
of hearing. In so far as the instant aspect of the matter is
A
concerned, it was the contention of the learned counsel for the
respondents, that shifting of the residence of an accused cannot
be a valid justification for seeking transfer, nor is the place
where the first information report was registered by the CBI
relevant for the said purpose. It is submitted that the identity of B
the jurisdictional court is determined on the basis of the
provisions of the Code of Criminal Procedure, wherein
residence of the accused and the place of registration of the
first information report are inconsequential. In so far as the
inconvenience alleged by the petitioners to travel to Ghaziabad c
is concerned, it was brought to our notice that 72 of the witness
likely to be produced during the course of the prosecution under
reference, are located in the State of Uttar Pradesh, whereas,
61 witnesses are from Delhi or from outside U.P. Of the
aforesaid 61 witnesses, 19 are CBI officials/officers; 16 are
D
employees of the Central Forensic Science Laboratory or the
All India Institute of Medical Sciences, New Delhi; 6 witnesses
are from telephone companies, 20 witnesses have been
examined earlier out of which some are relations of the
petitioners themselves; and of the remaining two witnesses one
E
is from Punjab and the other is from Haryana. It is also
submitted, that none of the 61 witnesses, to be produced from
Delhi or from outside U.P., have expressed inconvenience to
depose before the Special Judicial Magistrate (CBI),
Ghaziabad, U.P. It is contended, that the distance between
F
Naida and Ghaziabad, as also, between Naida and Delhi
depicted in the submissions advanced by the learned counsel
for the petitioners are irrelevant. It is submitted, that the issue
of jurisdiction is never determined on the basis of distance(s),
but is based on the territorial jurisdiction of the court within
which an offence has been committed. It is submitted that Dr.
G
Rajesh Talwar and Dr. Mrs. Nupur Talwar have been attending
court proceedings at Ghaziabad since 2008, i.e., for the last
about three years. It is pointed out, that neither of the petitioners
ever expressed inconvenience to participate in the court
proceedings at Ghaziabad hitherto before. However, all these
H
856
SUPREME COURT REPORTS
[2012] 4 S.C.R
A
pleas are being raised only after the Special Judicial
Magistrate (CBI), Ghaziabad, U.P., by his/her order dated
9.2.2011 had summoned the petitioners to face trial under
Section 302 read with Section 34 of the Indian Penal Code,
and Section 201 read with Section 34 of the Indian Penal Code,
B
in connection with the murder of Arushi Talwar. It is accordingly
submitted that the plea raised by the petitioners for transfer of
proceedings on the basis of inconvenience, is wholly trumped
up and ought to be rejected.
11. In so far as the second issue canvassed at the hands
C of the petitioners on the ground of personal security is
concerned (see paragraph 6 hereinabove), learned Senior
Counsel representing the respondents invited our attention to
the counter affidavit filed on behalf of the respondent-CBI,
wherein, while repudiating the contention advanced at the hands
D of the petitioners, it has been pointed out that the attack on Dr.
Rajesh Talwar in the court-premises at Ghaziabad on 25.1.2011
was at the hands of a psychologically disturbed person hailing
from Varanasi, who had come to Ghaziabad from Ahmedabad
(in Gujarat). It is therefore the contention of the learned counsel
E for the respondents, that the attack was not aimed at interfering
with the petitioners right to defend themselves, but because of
mental imbalance of the attacker. It is submitted, that the same
person Utsav Sharma had also attacked DGP Rathore in a
court-premises at Chandigarh, prior to having attacked Dr.
F
Rajesh Talwar. It is therefore contended, that the physical attack
on Dr. Rajesh Talwar was certainly not aimed at disrupting courtproceedings or interfering with the defence of the petitioners.
As such, it is submitted that the aforesaid stray incident cannot
be a justifiable basis for seeking transfer of proceedings under
G Section 406 Cr.P.C. from the court of the Special Judicial
Magistrate (CBI), Ghaziabad, U.P. to some other court of
competent jurisdiction in Delhi/New Delhi. Learned counsel
representing the respondents also pointed out, from the counter
affidavit filed by the CBI, that the Sessions Judge, Ghaziabad
H had personally reviewed the security arrangements in the entire
RAJESH TALWAR v. C.B.I. & ORS.
857
court-premises at Ghaziabad, whereupon, security/police
A
personnel have been deployed to prevent any similar untoward
incident in future. It was also brought to our notice, from the
counter affidavit filed by the CBI, that the venue of the
proceedings relating to the petitioners, has been shifted to a
new building, which has a proper boundary wall on all sides,
B
with only one small entrance. The counter affidavit also records
an assurance, that as and when the case of the petitioners will
be fixed for hearing, proper police force will be deployed by
the local administration, to ensure safety and security of the
petitioners. It is therefore the contention of the learned Senior c
Counsel representing the CBI, duly supported by the learned
counsel for the State of Uttar Pradesh, that all possible care
will be taken, for the safety and welfare of the petitioners.
12. Even though learned counsel representing the
petitioners did not canvass the third ground (see paragraph 7
D
hereinabove) during the course of hearing, yet learned counsel
for the respondents had expressly drawn our attention to the
same. The purpose of inviting our attention to the third ground
was to demonstrate, that the petitioners have not even spared
the presiding officer of the court. The petitioners have cast
E
aspersions on the court itself. It has been averred in the
pleadings, that the petitioners are not likely to get justice from
the Ghaziabad court, because the Special Judicial Magistrate
(CBI), Ghaziabad, U.P. by his/her order dated 28.2.2011 had
declined the prayer made by the petitioners for exempting them
F
from personal appearance, and since the petitioners had not
appeared on 28.2.2011, the court had issued bailable warrants
against the petitioners. This, according to the learned Senior
Counsel representing the respondents, can never constitute a
valid basis for drawing any inference against a court, specially
G
when the challenge raised by the petitioners in assailing the
order dated 28.2.2011 (declining exemption from personal
appearance, and ordering issuance of bailable warrants),
before the High Court of Judicature at Allahabad was rejected.
In fact, it is the contention of the learned Senior Counsel for the
H
858
SUPREME COURT REPORTS
(2012] 4 S.C.R.
A
respondents, that the insinuation levelled on behalf of the
petitioners is contemptuous in nature, and calls for initiation of
proceedings against the petitioners under the Contempt of
Courts Act, 1971. Based on all the submissions recorded
hereinabove, it was the contention of the learned counsel for
B the respondents, that even the third ground raised by the
petitioners for seeking transfer of proceedings under Section
406 of the Code of Criminal Procedure, cannot be accepted.
13. In so far as the last contention is concerned (see
paragraph 8 hereinabove), the same was based on the affidavit
C of Shri Praveen Kumar Rai, Advocate, dated 24.2.2012. It was
submitted at the hands of the learned counsel for the
respondents, that there was no occasion for the respondents
to repudiate the same, as the factual position depicted therein
does not emerge from the pleadings of the transfer petitions
D filed by the two petitioners. It is therefore the contention of the
learned counsel for the respondents, that the petitioners should
not be permitted to press the instant ground for seeking transfer.
Be that as it may, it is further the contention of the learned
Senior Counsel representing the respondents, that the
E
allegations contained in the affidavit dated 24.2.2012 are vague,
as the identity of the counsel who attempted to stop the counsel
representing the petitioners from advancing their submission,
has not been disclosed. In the application allegedly filed on
4.2.2012 (appended as Annexure A-3, with the affidavit dated
F 24.2.2012) also, the identity of the counsel who restrained the
counsel representing the petitioners, from making his
submissions has also not been disclosed. Accordingly, it is
asserted that the allegations made in the last submission being
vague cannot be relied upon to accept the prayer of the
G petitioners for transfer of proceedings under Section 406 of the
Code of Criminal Procedure.
14. We have noticed hereinabove the grounds of challenge
canvassed at the hands of the learned counsel for the
petitioners, as also, the response thereto at the hands of the
H learned counsel representing the respondents. In so far as the
RAJESH TALWAR v. C.B.I. & ORS.
859
issue of transfer of criminal proceedings from one court to
A
another under Section 406 of the Code of Criminal Procedure
is concerned, it would be in the fitness of matters to examine
the parameters laid down by this Court for transfer of
proceedings. In this behalf reference may, first of all, be made
to the decision rendered in Sri Jayendra Saraswathy Swamigal
B
(//), Tamil Nadu v. State of Tamil Nadu, (2005) 8 SCC 771,
wherein in paragraph 5, this court recorded the grounds on
which transfer was sought and thereafter, recorded its own
determination in paragraph 23. Accordingly, paragraphs 5 and
23 of the judgment are being extracted hereunder:
C
"5. The transfer of the case has been sought on several
grounds and basically speaking they are as under:
(1) The State machinery in Tamil Nadu and specially the
Special Investigation Team headed by Shri Prem Kumar,
0
Superintendent of Police, has shown great zeal and has
made extraordinary efforts, much beyond what is required
under the law to anyhow secure the conviction of the
accused and to achieve that object has procured and
fabricated false evidence.
(i1) The Chief Minister of the State of Tamil Nadu, who is
also holding the Home portfolio, has made statements on
the floor of the House that the petitioner and the other coE
a ccu sed are actually involved in the murder of
Sankararaman and has also given some press statements
F
and has thereby pre-empted a fair decision in the criminal
trial, as statements of persons holding such high offices
and specially those made on the floor of the House, are
generally believed to be correct and thus the accused
stand condemned even before the commencement of the
G
trial.
(iii) A solatium of Rs 5 lakhs was paid by the Chief Minister
of Tamil Nadu to Padma Sankararaman (widow of
deceased Sankararaman) on 24-11-2004, long before
completion of investigation and submission of chargeH
A
B
c
D
E
F
G
H
860
SUPREME COURT REPORTS
[2012] 4 S.C.R.
sheet, and this was given wide publicity in the electronic
media and newspapers, etc., which shows that the State
Government is taking special interest in the case and is
too keen to secure conviction of the accused in order to
justify the stand taken by it.
(iv) Concocted and false cases have been registered
against 16 co-accused. Even before their bail applications
in the present case could be heard, detention orders were
passed against them under the Tamil Nadu Prevention of
Dangerous Activities of Bootleggers, Drug Offenders,
Forest Offenders, Goondas, Immoral Traffic Offenders,
Slum Grabbers and Video Pirates Act, 1982 (for short "the
Goondas Act") between 16-1-2005 and 6-2-2005 so that
even after grant of bail by the Court they may remain in
custody.
(v) The advocates appearing for the petitioner and other
co-accused have been put under great threat on account
of lodging of false and fabricated criminal cases against
them and a situation has been created wherein they may
not be in a position to defend the accused properly.