IMPORTANT POINT
Grounds for maintaining transfer petition restated and discussed.

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 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.

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 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 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 Leav