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2012 (1) Supreme 68
SUPREME COURT OF INDIA
Asok Kumar Ganguly and Jagdish Singh Khehar, JJ.
Dr. Mrs. Nupur Talwar — Appellant(s)
versus
C.B.I., Delhi & Anr. — Respondent(s)
Criminal Appeal No.68 of 2012
Arising out of
Special Leave to Appeal (Crl) No(s).2982/2011
Decided on : 6-1-2012
Criminal Procedure Code,1973- Section 190(1)(b)-Scope and ambit of- At this stage Magistrate is required to exercise sound judicial discretion and apply his mind to the facts and materials before him- In doing so, Magistrate is not bound by opinion of investigating officer and he is competent to exercise his discretion irrespective of the views expressed by the Police in its report and may prima facie find out whether an offence has been made out or not- At the stage of taking of cognizance of offence, Court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record (Paras 19 to 21)
Facts of the Case :
The subject matter of challenge before this Court herein in the instant case is an order of High Court whereby the High Court on a petition under Section 397/401 of the Criminal Procedure Code challenging the order passed by Magistrate (CBI), in Special Case No.01 of 2011 (Rajesh Talwar Vs. Unknown under Section 302, I.P.C. P.S. S.C.B. C.B.I., Delhi) refused to interfere with Magistrate’s order of taking cognizance.
Findings of the Court :
A. Perusal of order of Magistrate showed that he had applied his mind in coming to the conclusion relating to taking of cognizance. Magistrate took note of rejection report and gave his prima facie observation on controversy upon a consideration of the materials that surfaced in the case. Magistrate opined that in the light of evidence on record conclusion of Investigating Officer given in the final report deserved to be rejected and there was sufficient basis for taking prima facie cognizance against accused persons for committing murder of deceased persons and for tampering with the proof.
B. The correctness of the order whereby cognizance of the offence has been taken by the Magistrate, unless it is perverse or based on no material, should be sparingly interfered with. Instantly, anyone reading the order of Magistrate taking cognizance, would come to the conclusion that there had been due application of mind by Magistrate and it was a well reasoned order.No interference was called for with impugned order. Appeal was dismissed.
JUDGMENT
Ganguly, J.
1. We have heard learned counsel for the parties.
2. Leave granted.
3. The subject matter of challenge before this Court is an order dated 18th March, 2011 of the Allahabad High Court whereby the High Court on a petition under Section 397/401 of the Criminal Procedure Code (hereinafter ‘Code’) challenging the order dated 9th February, 2011 passed by Special Judicial Magistrate (CBI), Ghaziabad in Special Case No.01 of 2011 (Rajesh Talwar Vs. Unknown under Section 302, I.P.C. P.S. S.C.B. C.B.I., Delhi) refused to interfere with Magistrate’s order of taking cognizance.
4. By the said order dated 9th February, 2011, the Magistrate had taken cognizance of the offences under Sections 302/34 and 201/34 I.P.C. against the appellant and one Dr. Rajesh Talwar. The concluding portion of the order of the Magistrate is:-
“While rejecting the conclusion given in the Final Report by the Investigating Officer, cognizance on the basis of Police report under section 190(1)(b) of Cr.P.C. is taken under section 302/34 and 201/34 IPC against accused Dr. Rajesh Talwar and Dr. Nupur Talwar for committing murders of Arushi and Hem Raj and for tampering with the proofs. The accused be summoned for appearance on 28.02.2011. Copies be prepared.”
5. The entire case arises out of an unfortunate murder of a young girl namely, ‘Aarushi’ in her own residence and also the murder of one Hemraj, a domestic help. It appears that the said unfortunate murder of the young girl raised some kind of a sensation in public mind and an uproar. Be that as it may, sitting in the Courts of law, we have to steer clear of the public debate and follow the course of law.
6. Initially, the investigation was conducted by the Uttar Pradesh Police in which the implication of Dr. Rajesh Talwar and Dr. Nupur Talwar, parents of the deceased victim girl transpired. Thereafter, the investigation of the case was handed over to the C.B.I. on 29th May, 2008 on the basis of a notification by the State. Prior to that, on 23rd May, 2008, Dr. Rajesh Talwar was arrested. The CBI initially filed a closure report of the investigation. On the basis of that report, an application was filed by the C.B.I. under Section 169 of the Code before the Special Judicial Magistrate, C.B.I., Ghaziabad. The contents of the said petition read as under:
“i. That accused Rajesh Talwar was arrested in the aforesaid case on 23.5.2008. Subsequently, following expiry of his police remand, this Hon’ble Court remanded him to judicial custody upto 11.7.2008 vide order dated 2.7.2008.
ii. That the investigation of this case is still pending and all the facts and circumstances of the case are being investigated.
iii. That during investigation, the role of accused Rajesh Talwar was thoroughly investigated regarding the aforesaid crime.
iv. That during investigation, the poly right to psychological analysis test of accused Rajesh Talwar was conducted and no deception has been found in the test reports.
v. That during investigation, the cloths, shoes and finger palm/foot prints of accused Rajesh Talwar was forwarded/submitted to CFSL, New Delhi for examination and expert opinion. The Scientific examination results could not connect accused Rajesh Talwar with the crime.
vi. That in view of the above circumstances, the further judicial custody remand of accused Rajesh Talwar is not required in the interest of justice.
Prayer
It is, therefore, prayed that Judicial custody remand of accused Rajesh Talwar may not be extended.”
7. On the basis of the aforementioned prayer of C.B.I. under Section 169 of the Code, an order came to be passed on 11th July, 2008 by the learned Magistrate and Dr. Rajesh Talwar was released on his furnishing two sureties of Rs.5 lakh each with a personal bond of the same amount.
8. Thereafter, the C.B.I. filed another closure report on 29th December, 2010. Then, on a notice being issued by the Court, a protest petition came to be filed by Dr. Rajesh Talwar. Only thereafter, the impugned ord
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