2012 Supreme(SC) 413

2012 (4) Supreme 158
SUPREME COURT OF INDIA
Jagdish Singh Khehar and A. K. Patnaik, JJ.
Nupur Talwar — Petitioners
versus
Central Bureau Of Investigation & Anr. — Respondents
Review Petition (Crl.) No. 85 of 2012, Criminal Appeal No. 68 of 2012
Decided on : 07-06-2012.

IMPORTANT POINTS
1. For the purpose of issuing process, all that the concerned Court has to determine is, whether the material placed before it “is sufficient for proceeding against the accused”.
2. Possible defence(s) of an accused need not be taken into consideration at the time of issuing process.
3. The right to avail a remedy under law, is the right of every citizen. But such a right, cannot extend to misuse of jurisdiction.

Headnote:Code of Criminal Procedure,1973-Sections 190,204- Order passed by Magistrate rejecting the closure report submitted by CBI- Magistrate while taking cognizance under Section 190 Cr.P.C. issued process under Section 204, Cr.P.C. to petitioner and her husband, for the offence of murder of their daughter and their domestic servant and for the offence of causing disappearance of evidence of said offence- Revision thereagainst-Dismissed by High Court –Special leave petition-Dismissed- Review Petition -Magistrate having examined the statements recorded during course of investigation under Sections 161 and 164 of Crpc., as also, the documents and other materials collected during the process of investigation, was fully justified in recording the basis on which, having taken cognizance, it was decided to issue process- No merit found in the criticism of Magistrate’s order, in being lengthy and detailed- In passing the order Magistrate merely highlighted the circumstances emerging out of the investigation carried out in the matter, which constituted the basis of her decision to issue process- The Magistrate’s order being speaking, could not be stated to have occasioned failure of justice- Impugned order of Magistrate, hence, could not be faulted on the ground that it was a reasoned order (Para 12)

        Code of Criminal Procedure,1973-Sections 190,204- Order passed by Magistrate rejecting the closure report submitted by CBI- Magistrate while taking cognizance under Section 190 Cr.P.C. issued process under Section 204, Cr.P.C. to petitioner and her husband, for the offence of murder of their daughter and their domestic servant and for the offence of causing disappearance of evidence of said offence- Revision thereagainst-Dismissed by High Court –Special leave petition-Dismissed- Review Petition -Having taken into consideration the factual position based on the statements recorded under Section 161 of and Section 164 of Crpc. thereof, and the documents appended to charge sheet, as also, the other materials available on the file ,held that Magistrate was fully justified in issuing process- Since said statements, documents and materials, were most certainly sufficient to proceed against accused- Hence order issuing process under Section 204 passed by Magistrate could not be faulted on ground, that it had been passed in violation of the provisions ofCrpc, or in violation of declared position of law on the subject-Apart from that, it was not necessary for Magistrate to take into consideration all possible defences, which could have been raised by petitioner, at the stage of issuing process-Petition dismissed (Paras 18, 19)

       Facts of the Case :

        A The instant controversy emerges out of a double murder, committed on the night intervening 15-16.5.2008. On having found the body of Aarushi Talwar in her bedroom, her father Dr. Rajesh Talwar got a first information report registered. In the first information report Dr. Rajesh Talwar pointed the needle of suspicion at, a domestic help in the household of the Talwars. On 17.5.2008 the dead body of Hemraj was recovered from the terrace of the same house, where Aarushi’s murder had also allegedly been committed. The initial investigation into the double murder was carried out by the U.P. Police. On 29.5.2008 the State of Uttar Pradesh handed over the investigation to the Central Bureau of Investigation, thereupon investigation was conducted by the CBI. On the receipt of the closure report submitted by the CBI, Magistrate” issued notice to the petitioners husband in his capacity as the first informant. In response to said notice petitioner’s husband submitted a detailed protest petition 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 his daughter and his domestic servant. Magistrate rejected the closure report submitted by the CBI. The Magistrate also rejected, the prayer made in the protest petition for further investigation . Instead, having taken cognizance, the Magistrate summoned petitioner and his husband for committing Double murders, as also, for tampering with the evidence.

        B. The aforestated summoning order was assailed by petitioner by filing a revision petition. The aforesaid Criminal Revision Petition came to be dismissed by the High Court . Dissatisfied with the order passed by the High Court petitioner approached this Court by filing Special Leave Petition. The aforesaid Criminal Appeal was dismissed by Apex Court.

        C. Hence the present Review Petition.

       Findings of the Court :

        A.Magistrate having examined the statements recorded during course of investigation under Sections 161 and 164 of Crpc., as also, the documents and other materials collected during the process of investigation, was fully justified in recording the basis on which, having taken cognizance, it was decided to issue process. No merit was found in the criticism of Magistrate’s order, in being lengthy and detailed. In passing the order Magistrate merely highlighted the circumstances emerging out of the investigation carried out in the matter, which constituted the basis of her decision to issue process. The Magistrate’s order being speaking, could not be stated to have occasioned failure of justice. Impugned order of Magistrate, hence, could not be faulted on the ground that it was a reasoned order.

        B. Having taken into consideration the factual position based on the statements recorded under Section 161 of and Section 164 of Crpc. thereof, and the documents appended to charge sheet, as also, the other materials available on the file ,held that Magistrate was fully justified in issuing process. Since said statements, documents and materials, were most certainly sufficient to proceed against accused.Hence order issuing process under Section 204 passed by Magistrate could not be faulted on ground, that it had been passed in violation of the provisions of Crpc, or in violation of declared position of law on the subject.Apart from that, it was not necessary for Magistrate to take into consideration all possible defences, which could have been raised by petitioner, at the stage of issuing process. Petition was dismissed.