Back
2011 Supreme(All) 810
[2011(4) ADJ 682]
ALLAHABAD HIGH COURT
BEFORE : BALA KRISHNA NARAYANA, J.
Dr. (Mrs.) NUPUR TALWAR ….PETITIONER
Versus
C.B.I. DELHI AND ANOTHER …..RESPONDENTS
(Criminal Revision No. 1127 of 2011, decided on 18th March, 2011)
Counsel :
G.S. Chaturvedi and Samit Gopal for the Petitioner; G.A., N.I. Jafri, Tahir Husain and Anurag Khanna for the Respondents.
Headnote:(A) Criminal Procedure Code, 1973—Sections 204, 169, 173(2) (3), 190 (1), 190(2) (b), 319, 273—(Indian) Penal Code, 1860—Section 302/34 and 201—Indian Evidence Act, 1872—Section 25—Final report—Rejection of—Summoning order—Protest petition—Filed by informant—Who is a father of deceased girl—C.B.I. submitted closure report on ground of insufficient evidence—Culpability of any one not appeared—Although, double murder had taken place within house—No material which may indicate presence of any outsider at site of murder—At stage of summoning only prima facie case is to be seen—And since there was strong circumstantial evidence on record—Indicating involvement of revisionist in commission of offence—Raising preliminary objection that CBI can not oppose prayer made by revisionists—On ground that CBI is as much aggrieved by impugned order summoning revisionists—Objection without basis as CBI is a probing agency—It cannot be bound by conclusion of its I.O.—CBI cannot be termed as 'party' to lis—Trial Court after examining entire materials came to conclusion—There was sufficient evidence on record prima facie indicating culpability of revisionists in commission of offence—Accordingly, declined further investigation—Where there is no allegation of unfair investigation—Question whether process can be issued against a person—Who is neither arrayed as an accused at any stage of investigation—Nor whose name figures either in column 2 or 3 of police report submitted under Section 173 (2) of Cr.P.C.—In present case Magistrate after going through entire material collected during investigation and taking note of circumstantial evidence on record—Which in his opinion pointed out at revisionist complicity in commission of offence—Then issued process against revisionist—Instantly became 'an accused' or 'an offender'—No illegality committed in issuing process against revisionist—Hence, summoning order sustainable. [Paras 37, 42, 48, 57, 58, 59 and 60]
(B) Criminal Trial—Word "accused"—Connotation of—An accused is a person against whom an allegation is made—that he has committed an offence—And whose liberty is actually restrained—He is arrested by a competent authority on well founded information or formal accusation. [Para 48]
(C) Criminal Procedure Code, 1973—Sections 273 Explanation and Chapter 8—Word "accused"—Definition of—Accused has also defined under Explanation to Section 273 of Cr.P.C.—As including a person in relation to whom any proceeding under Chapter 8 of Cr.P.C. has been commenced. [Para 48]
Hon’ble Bala Krishna Narayana, J.—Heard Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Samit Gopal, learned counsel for the revisionist, Sri N.I. Jafri and Sri Anuraag Khanna, learned counsel for the opposite party No. 1 and Sri D.R. Chaudhary, learned Government Advocate for the opposite party No. 2.
2. This application in revision has been filed by the revisionist Dr. (Mrs.) Nupur Talwar against the order dated 9.2.2011 passed by Special Judicial Magistrate (C.B.I), Ghaziabad in Special Case No. 1 of 2011 Rajesh Talwar v. Unknown under Section 302 I.P.C., P.S. S.C.B. C.B.I., Delhi by which he has taken cognizance of offences under Sections 302/34 and 201/34 I.P.C. and issued process under Section 204 of the Code of Criminal Procedure to the revisionist to face trial for the aforementioned offences.
3. Learned counsel for the opposite parties have stated that they do not want to file any counter-affidavit and this application in revision may be disposed of at this stage on the basis of the materials brought on record by the revisionist.
The facts of the case as stated in the affidavit filed alongwith memorandum of revision are, following the discovery of the gruesome murder of Aarushi aged about 14 years daughter of the revisionist Dr. Nupur Talwar and co-accused Dr. Rajesh Talwar, in her bedroom in the morning of 16.5.2008, a first information report of the incident was lodged by Dr. Rajesh Talwar at P.S. Sector-20, Noida at about 7.10 am on the same day, on the basis of which Case Crime No. 695 of 2008 under Section 302 I.P.C. was registered against unknown persons. The post mortem of deceased Aarushi was conducted on 16.5.2008 at about 12.00 noon. After a couple of days Hemraj the domestic help of the revisionist who was the prime suspect of the crime was also found murdered on 17th May, 2008 on the terrace of the house of Dr. Rajesh Talwar and Dr. Nupur Talwar. His post mortem conducted on 17.5.2008 at about 9.00 pm revealed that Hemraj had also been murdered about the same time as Km. Aarushi. The matter was initially investigated by the local police but subsequently vide Notification No. 1937-VI-P-3-2008- 15(48) P/2008, Lucknow dated 29.5.2008, the investigation of the case was transferred to the Central Bureau of Investigation (hereinafter referred to as the C.B.I.) by the State Government. Pursuant to the matter being taken up by the C.B.I., first information report already lodged was registered as Case Crime No. RCI (S)/2008/SCR-III/CBI/New Delhi and was investigated by the C.B.I.
4. During investigation, Dr. Rajesh Talwar the husband of the revisionist was arrested on 23rd May, 2008 by the local police and was produced before the concerned Court on 24.5.2008 and was granted three days police remand which was extended till 30.5.2008. Thereafter, Dr. Rajesh Talwar was sent to judicial custody on 30.5.2008. Subsequently on an application filed by the C.B.I. under Section 169 of the Code of Criminal Procedure stating therein that the scientific results of other investigations did not seem to connect Dr. Rajesh Talwar with the crime and in that view his further judicial custody remand was not required, Dr. Rajesh Talwar was consequently granted bail on 11.7.2008. During investigation the C.B.I. arrested and interrogated three other persons, namely, Krishna, Raj Kumar and Vijay Mandal. Since, the investigation against the aforementioned three co-accused could not be completed by the C.B.I. within the period of 90 days the aforementioned Krishna, Raj Kumar and Vijay Mandal were also granted bail by the Special Judge, Ghaziabad. After investigating the matter for seemingly unending period, the C.B.I. ultimately submitted a closure report dated 29.12.2010 before the Special Judicial Magistrate (CBI), Ghaziabad under the signature of the Investigating Officer Sri A.G.L. Paul, Addl. S.P., C.B.I., Sector-2, New Delhi with a prayer that in view of the shortcomings in the evidence as detailed in the closure
