Rajesh Talwar vs CENTRAL BUREAU OF INVESTIGATION

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(All) 1810

ALLAHABAD HIGH COURT
BEFORE : SUDHIR AGARWAL, J.
Dr. Rajesh Talwar and Another ....Applicants
Versus
CENTRAL BUREAU OF INVESTIGATION AND ANOTHER ....Opposite Parties
(Criminal Misc. Application Nos. 20215 and 20216 of 2003, decided on 19th July, 2013)

Advocates:
Counsel :
Vikram D. Chauhan and Tanveer Ahmad for the Applicants; A.G.A., Anurag Khanna and R.K. Saini (S.P.P.) for the Opposite Parties.

Headnote:(A) Criminal Procedure Code, 1973—Sections 233, 91, 230, 231, 482, 313 and 311—(Indian) Penal Code, 1860—Sections 302, 201 and 34—Evidence Act,1872—Sections 27, 25, 26 and 65(b)—Constitution of India, 1950—Articles 20 and 21—Witness—Documents—Summoning of—Application for—Rejection of—In present case applicants seeking direction that certain documents including scientific tests done by CBI on some other persons during investigation—Other documents collected, should be placed on record—As they are exculpatory documents—In absence thereof, applicants shall not have a fair opportunity of defence—Also seeking summoning of witnesses left over by prosecution—Whether earlier orders of higher forum would constitute a legal bar ‘like’ estoppel, waiver, acquiescence or a principle akin to res-judicata in criminal proceedings—Accused must be given all opportunity in trial they are to face—Whether an accused can force/compel prosecutor to produce a particular evidence, documentary/oral or examine a particular witness—Held, production of prosecution witness is sole and absolute discretion of public prosecutor—In present case test reports not shown admissible in evidence for any purposes—Rejection of the same proper—When witnesses already examined, cross-examined and documents proved by them—In absence of any further justification, application liable to be rejected—Call details records of two mobile numbers—Whereas prosecution examined certain Telecommunication officials—Whether said documents shall prejudice any of right of accused or not—Such kind of assessment is not permissible at this stage—Rejection regarding production of call details records not sustainable—DNA examination report—Seeking second expert opinion justified—On final records of review petition before Apex Court—Production not justified as it is part of records.
       (B) Criminal Trial—‘Judicial proceeding’—Connotation of—It includes within itself certain proceedings—Which are pre-trial also.
       © Criminal Trial—Cognizance—Power of Court—Police report—When a person not named in police report to be an accused—If Court is otherwise satisfied that there existed prima facie ground of issuing process against such person.
       (D) Criminal Trial—Framing of charge—Reasons for—No reason need to be recorded at time of framing charges against an accused.
       (E) Criminal Trial—Final report—Rejection of—Reasons for—Investigating agency/CBI entitled to know reasons for rejecting final report/closure report.
       (F) Criminal Trial—Documents—Production of—Which are in possession of prosecution—Right of an accused—Nothing to prevent seeking production of certain documents—If, trial Court does not come to conclusion that such request is vexatious or to cause delay or otherwise may defeat ends of justice.

Sudhir Agarwal, J.

1. These two applications under Section 482 of Code of Criminal Procedure, 1973hereinafter referred to as "Code") have come up against a common order dated 18th June, 2013 passed by Sri S.Lal, Additional Sessions Judge/Special JudgeAnti Corruption) C.B.I., Ghaziabadhereinafter referred to as "CBI Court"), disposing of applications no.402Kha, 405Kha and 407Kha preferred by applicants-accusedhereinafter referred to as "applicants") under Section 233 read with Section 91 of the Code, summoning certain documents and witnesses. CBI Court has rejected application No.402Kha and 405 Kha in entirety but has allowed application no.407Kha in part and has rejected the same partly.

2. Criminal Misc. Application No.20215 of 2013 has assailed CBI Court's order dated 18th June, 2013 in so far as it has rejected application preferred on 11th June, 2013 under Section 233 read with Section 91 of the Code for production of certain documents and Criminal Misc. Application No.20216 of 2013 has been preferred in so far as CBI Court has partly rejected application no.407Kha with respect to summoning of certain witnesses.

3. The applicants, in the past, have travelled to this Court as also Apex Court on several occasions at different stages before the trial and thereafter and detailed facts, which have ultimately given rise to the trial in question are already contained in those orders, therefore, for brevity, I shall not mention those facts in detail and would confine myself only to the barest facts, which may be necessary to understand issues raised in present applications.

4. The applicants are facing trial for charges of committing murders of their own daughter, Arushi Talwar, and a domestic help, Hemraj, in their house in Session Trial No.477 of 2012CBI Vs. Dr. Rajesh Talwar & ors.). The incident took place in the night of 16.5.2008. In the morning of 16.5.2008, 14 years young girl Arushi was found murdered in her bed room. Apparently, it was reported first by accused-applicants lodging a first information report at Police Station Sector-20, NOIDA at about 10.00 A.M. on 16.5.2008. The Police registered report as Case Crime No. 695 of 2008, under Section 302 I.P.C. against unknown persons. The post-mortem was conducted at about 12.00 noon, on the same date. After a couple of days, Hemraj, the Domestic Help, who was initially a prime suspect of the crime, was also found murdered. His body was discovered on 17.5.2008 at the terrace of the house of accused-applicants. His post mortem was conducted at about 9.00 P.M. On 17.5.2008, revealed that both the deceased were murdered almost around the same time. The investigation, initially conducted by local Police, was transferred to C.B.I. by Notification dated 29.5.2008 issued by State Government pursuant whereto, Central Bureau of Investigationhereinafter referred to as "CBI") registered first information report as Case Crime No. RCI S)/2008/SCR-III/CBI/New Delhi. During investigation CBI arrested several persons including one of the accused-applicants, Dr. Rajesh Talwar, as suspect of the crime, and all of them were granted bail.

5. Ultimately, a closure report was submitted by CBI before Special Judicial Magistrate, CBI, Ghaziabadhereinafter referred to as "SJMCBI)") with a prayer that in view of shortcomings in the evidence, investigating agency opined that sufficient evidence was not available to prove offence under Section 302/201 I.P.C. against Dr. Rajesh Talwar and other co-accused beyond reasonable doubt, hence, the case may be allowed to be closed for want of sufficient evidence. The closure report was appended with a list containing names of 140 witnesses and also the list of documents and articles collected during investigation. Notice being issued to accused-applicant, Rajesh Talwar, in his capacity of first informant, a protest petition dated 25.1.2011 was filed by him before SJMCBI) with the prayer for rejection of closure report and a direction to CBI to investigate the matt

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Judicial Analysis

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2013 Supreme(All) 1810

ALLAHABAD HIGH COURTBEFORE : SUDHIR AGARWAL, J.Dr. Rajesh Talwar and Another ....ApplicantsVersusCENTRAL BUREAU OF INVESTIGATION AND ANOTHER ....Opposite Parties(Criminal Misc. Application Nos. 20215 and 20216 of 2003, decided on 19th July, 2013)

Judicial Analysis

ALLAHABAD HIGH COURT
BEFORE : SUDHIR AGARWAL, J.
Dr. Rajesh Talwar and Another ....Applicants
Versus
CENTRAL BUREAU OF INVESTIGATION AND ANOTHER ....Opposite Parties
(Criminal Misc. Application Nos. 20215 and 20216 of 2003, decided on 19th July, 2013)