TMI Blog2012 (1) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... e investigation to the Central Bureau of Investigation (hereinafter referred to as, the CBI), thereupon investigation was conducted by the CBI. 3. During the course of investigation, besides Dr. Rajesh Talwar, the needle of suspicion came to be pointed towards Krishna Thadarai, Rajkumar and Vijay Mandal. Dr. Rajesh Talwar was arrested on 23.5.2008. Originally a three days remand was granted to interrogate him to the U.P. Police. Dr. Rajesh Talwar remained in police and judicial custody from time to time, wherefrom, he was eventually released on bail on 11.7.2008. The other three individuals, namely, Krishna Thadarai, Rajkumar and Vijay Mandal were also arrested by the police. Since investigation against the aforesaid three could not be completed within the period of 90 days, they were ordered to be released on bail. 4. Having investigated into the matter for a considerable length of time, the CBI submitted a closure report on 29.12.2010. The reasons depicted in the closure report indicated the absence of sufficient evidence to prove the alleged offences against the accused Dr. Rajesh Talwar, beyond reasonable doubt. A summary of the reasons recorded in the said report itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, clothes used to clean the blood from the flat and stair case, the sheet on which the Hemraj was carried and dragged on the roof, the bed cover which was used to cover the view from the steel iron grill on the roof are not available and hence could not be recovered. 26. The investigation revealed several suspicious actions by the parents post occurrence, but the circumstantial evidence collected during investigation has critical and substantial gaps. There is absence of a clear cut motive and incomplete understanding of the sequence of events and non-recovery of the weapon of offence and their link to either the servants or the parents. In view of the aforesaid shortcomings in the evidence, it is felt that sufficient evidence is not available to prove the offence(s) U/s 302/201 IPC against accused Dr. Rajesh Talwar beyond reasonable doubt. It is, therefore, prayed that the case may be allowed to be closed due to insufficient evidence. 5. On the receipt of the closure report submitted by the CBI, the Special Judicial Magistrate (CBI), Ghaziabad (hereinafter referred to as the Magistrate ) issued notice to the Dr. Rajesh Talwar in his capacity as the first informant. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Magistrate having taken cognizance, was satisfied that process deserved to be issued, he ought not have examined the factual intricacies of the controversy. The Magistrate, it was submitted, has the authority only to commit the controversy in hand, to a Court of Session, as the alleged offences emerging out of the first information report dated 16.5.2008, and the discovery of the murder of Hemraj thereafter, are triable only by a Court of Session. It was submitted, that the controversy had been examined as if, the Magistrate was conducting the trial. It was asserted, that a perusal of the order passed by the Magistrate dated 9.2.2011, gives the impression of the passing of a final order, on the culmination of trial. It was, therefore, submitted, that the order dated 9.2.2011 be set aside, as all the inferences, assumptions and conclusions recorded therein, were totally uncalled for. 9. Undoubtedly, merely for taking cognizance and/or for issuing process, reasons may not be recorded. In Kanti Bhadra Shah vs. State of West Bengal, (2000) 1 SCC 722, this Court having examined sections 227, 239 and 245 of the Code of Criminal Procedure, concluded, that the provisions of the Code m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Magistrate has neither specified any reasons nor has he even formed an opinion much less about there being sufficient ground for not proceeding with the case. 6. In a recent decision of the Supreme Court it has been pointed out that the legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons vide Kanti Bhadra Shah v. State of W.B., (2000) 1 SCC 722. The following passage will be apposite in this context: 12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. M/s. Mohan Meakins Ltd. Ors., (2000) 3 SCC 745, and after noticing the law laid down in Kanti Bhadra Shah v. State of West Bengal, (2000) 1 SCC 722, it was held as follows: The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order. (emphasis is mine) Recently, in Bhushan Kumar and another vs. State (NCT of Delhi) and another (Criminal Appeal no. 612 of 2012, decided on 4.4.2012) the issue in hand was again considered. The observations of this Court recorded therein, are being placed below:- 9. A summon is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond to keep the peace; (g) makes an order for maintenance; (h) makes an order under section 133 as to a local nuisance; (i) prohibits, under section 143, the repetition or continuance of a public nuisance; (j) makes an order under Part C or Part D of Chapter X; (k) takes cognizance of an offence under clause (c) of sub- section (1) of section 190; (l) tries an offender; (m) tries an offender summarily; (n) passes a sentence, under section 325, on proceedings recorded by another Magistrate; (o) decides an appeal; (p) calls, under section 397, for proceedings; or (q) revises an order passed under section 446, his proceedings shall be void. In the list of irregularities indicated in Section 461 of the Code of Criminal Procedure, orders passed under Section 204 thereof, do not find a mention. In a situation, as the one in hand, Section 465(1) of the Code of Criminal Procedure, protects orders from errors omissions or irregularities, unless a failure of justice has been occasioned thereby. Most certainly, an order delineating reasons cannot be faulted on the ground that it has occasioned failure of justice. Therefore, even without examining the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011, praying for a direction to the police to carry out further investigation. This implies that the CBI had not been able to procure sufficient evidence on the basis whereof, guilt of the perpetrators of the twin murders of Aarushi Talwar and Hemraj could be established. Whilst, the rival parties were pleading insufficient evidence, the Magistrate s order dated 9.2.2011 issuing process, implies the availability of sufficient material to proceed against the accused. This second aspect in the present controversy, also needed to be explained, lest the Magistrate who had chosen to issue process against all odds, would have been blamed of having taken the decision whimsically and/or arbitrarily. Before rejecting the prayer made in the closure report, as also, the prayer made in the protest petition, it was appropriate though not imperative for the Magistrate to narrate, why she had taken a decision different from the one sought. Besides the aforesaid, there is yet another far more significant reason for recording reasons in the present matter. The incident involving the twin murders of Aarushi Talwar and Hemraj are triable by a Court of Session. The authority of the Magistrate was limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rners of law, without being influenced by the reasons recorded in the order issuing process. In the circumstances mentioned hereinabove, it was befitting for the Magistrate to pass a well reasoned order, explaining why she was taking a view different from the one prayed for in the closure report. It is also expedient for the Magistrate to record reasons why the request made by the complainant (Dr. Rajesh Talwar) praying for further investigation, was being declined. Even the fact, that the complainant (Dr. Rajesh Talwar) was being summoned as an accused, necessitated recording of reasons. An order passed in the circumstances noted hereinabove, without outlining the basis therefor, would have been injudicious. Certainly the Magistrate s painstaking effort needs a special commendation. At this juncture, it would be apposite to notice the observations recorded by this Court in Rupan Deol Bajaj and another vs. KPS Gill and another, (1995) 6 SCC 194, wherein this Court remarked as under:- 28. Since at the time of taking cognizance the Court has to exercise its judicial discretion it necessarily follows that if in a given case - as the present one - the complainant, as the person agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report. 29. Our such exercise persuades us to hold that the opinion of' the Investigating Officer that the allegations contained in the F.I.R. were not substantiated by the statements of witnesses recorded during investigation is not a proper one for we find that there are sufficient materials for taking cognizance of the offences under Sections 354 and 509 I.P.C. We, however, refrain from detailing or discussing those statements and the nature and extent of their corroboration of the F.I.R. lest they create any unconscious impression upon the Trial Court, which has to ultimately decide upon their truthfulness, falsity or reliability, after those statements are translated into evidence during trial. For the selfsame reasons we do not wish to refer to the arguments canvassed by Mr. Sanghi, in support of the opinion expressed in the police (final) report and our reasons in disagreement thereto. (emphasis is mine) Therefore, even though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not been broken into. Secondly, on the basis of the statement of Mahesh Kumar Mishra, recorded during the course of investigation, who alleged that he was told by Dr. Rajesh Talwar, that he had seen his daughter Aarushi Talwar on the fateful night upto 11:30 p.m., whereafter, he had locked the room of his daughter from outside, and had kept the key near his bed head. Coupled with the fact, that the lock on Aarushi Talwar s room was of a kind which could be opened from inside without a key but, needed a key to be opened from outside. And further, coupled with the fact, that the outer exit/entry door(s) to the flat of the Talwars, had not been broken into. It was assumed, that there was no outside forced entry, either into the bedroom of Aarushi Talwar or the flat of the Talwars, on the night of the twin murders of Aarushi Talwar and Hemraj. Thirdly, the Magistrate noticed from the investigation carried out, that the dead body of Hemraj was covered with a panel of a cooler, and on the grill a bed sheet had been placed. Likewise, from the fact that Aarushi Talwar s body was found murdered on her own bed, yet her toys were found arranged as such behind the bed and also, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence (determined in the post-mortem report). Seventhly, from the statements of Sunil Kumar Dorhe, Naresh Raj, Ajay Kumar and Dinesh Kumar recorded during the course of investigation, it was sought to be inferred, that the private parts of the deceased Aarushi Talwar were tampered with, inasmuch as, the white discharge was found only in the vaginal area of Aarushi Talwar indicating, that her private parts were cleaned after her death. The said white discharge was found not to be originating from the body of the deceased. The aforesaid inference was sought to be further supported by assertions, that the vaginal opening of Aarushi Talwar, at the time of the post mortem examination, was unusually wide. Accordingly, a deduction was made, that evidence had been tampered with, by those inside the flat, after the occurrence. Eighthly, it was also sought to be assumed, that the death of Aarushi Talwar and Hemraj was occasioned as a consequence of injuries caused by an iron 5 golf club (on the head of both the deceased), as also, injury on the neck of both the deceased caused by a surgically trained person . Since the golf club in question was not immediately produced, and since, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gating agency from tracing the body of Hemraj, which was eventually found from the terrace, after breaking open the lock on the terrace door. Twelfthly, Umesh Sharma the driver of the Talwars, stated during the course of investigation, that he had placed two golf clubs, i.e. irons 4 and 5 in the room of Hemraj, when the Santro car owned by the Talwars, was given for servicing. The iron 5 club, which is alleged to be the weapon of crime (which resulted in a V shaped injury on the heads of both Aarushi Talwar and Hemraj), remained untraced during the course of active investigation. The same was recovered from the loft of the house of Dr. Rajesh Talwar, and handed over to the investigating agency, more than a year after the occurrence on 30.10.2009. The Magistrate noticed, that the loft from where it was allegedly found, had been checked several times by the CBI. To which the explanation of Dr. Rajesh Talwar allegedly was, that one golf club might have dropped from the golf kit, and might have been left there. This factual aspect lead to the inference, that the weapon used in the crime, was deliberately not handed over to the investigating agency, after the occurrence. Thirteenthly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cies, and thereupon, to determine whether the proceedings should be dropped (as was suggested by the investigating agency, through its closure report dated 29.12.2010), or whether, a direction should be issued for further investigation (as was suggested in the protest petition filed by Dr. Rajesh Talwar), or whether, there was sufficient ground for proceeding further, by issuing process (as has been done in the present case). Having examined the material on the record, the Magistrate having taken cognizance issued process on 9.2.2011, and while doing so, recorded the following observations in the penultimate paragraphs of summoning order dated 9.2.2011: From the analysis of evidence of all above mentioned witnesses prima facie it appears that after investigation, on the basis of evidence available in the case diary when this incident occurred at that time four members were present in the house Dr. Rajesh Talwar, Dr. Nupur Talwar, Aarushi and servant Hem Raj; Aarushi and Hem Raj the two out four were found dead. In the case diary there is no such evidence from which it may appear that some person had made forcible entry and there is to evidence regarding involvement of the ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt which is just and reasonable on the basis of evidence collected in investigation, but it was not done so by the CBI which is highly disappointing. If I draw a conclusion from the circumstances of case diary, then I find that in view of the facts, the conclusion of the investigating officer that on account of lack of evidence, case may be closed; does not appear to be just and proper. When offence was committed in side a house, on the basis of evidence received from case diary, a link is made from these circumstances, and these links are indicating prima facie the accused Dr. Rajesh Talwar and Dr. Nupur Talwar to be guilty. The evidence of witness Shoharat that Dr. Rajesh Talwar asked him to paint the wooden portion of a wall between the rooms of Aarushi and Dr. Rajesh Talwar, indicates towards the conclusion that he wants to temper with the evidence. From the evidence 3 so many in the case diary, prima facie evidence is found in this regard. Therefore in the light of above evidences conclusion of investigating officer given in the final report deserve to be rejected and there is sufficient basis for taking prima facie cognizance against Dr. Rajesh Talwar and Dr. Nupur Talwar for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th, the site plan prepared by the CBI (after the CBI took over investigation). It was pointed out, that a reference to the correct site plan would reveal, that there could have been free access, to and from the residence of Talwars, through Hemraj s room. Secondly, it was pointed out, after extensively relying upon the statement of Bharti, that the grill and mash door latched from the outside clearly evidenced, that after committing the crime the culprits had bolted the premises from outside. The absurdity in the inference drawn by the Magistrate, it was submitted, was obvious from the fact, that the actual perpetrator of the murders, while escaping from the scene of occurrence, had bolted the Talwars from outside. It was also pointed out, that the iron mashing/gauze on the door which was bolted from outside, would make it impossible for an insider, to bolt the door from outside. Thirdly, according to the learned counsel, the impression recorded in the investigation carried out by the CBI reveals, that the stairway leading to the terrace was from inside the flat (of the Talwars), was erroneous. This inference was sought to be shown to have been incorrectly recorded, as the stair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pur Talwar. The presence of the blood of Hemraj on the pillow cover of Krishna Thadarai and the absence of the blood of Hemraj on the apparel of Dr. Rajesh Talwar and Dr. Nupur Talwar, according to learned counsel for the petitioners, not only exculpates the accused identified in the Magistrate s order dated 9.2.2011, but also reveals, that the investigation made by the U.P. Police/CBI besides being slipshod and sloppy, can also be stated to have been carried on without due application of mind. Sixthly, in continuation of the preceding issue canvassed on behalf of the petitioners, it was submitted, that the finding recorded by the CBI in its closure report, that DNA of none of the servants was found on any of the exhibits collected from the scene of crime, was wholly fallacious. The Magistrate having assumed the aforesaid factually incorrect position, exculpated all the servants of blame, in respect of the twin murders of Aarushi Talwar and Hemraj. It was submitted, that as a matter of fact, scientific tests shorn of human considerations, clearly indicate the involvement of Krishna Thadarai with the crime under reference. In this behalf the Court s attention was also drawn to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.10.2008, 30.9.2009 and 28.5.2010. Based thereon, learned counsel submitted, that in the post mortem report conducted by Dr. Sunil Kumar Dhore, he had expressly recorded NAD (No Abnormality Detected) against the column at serial no.7, pertaining to the private parts of Aarushi Talwar. It was submitted, that the aforesaid position came to be substantially altered by the subsequent oral statements made by Dr. Sunil Kumar Dhore. It was submitted, that the different factual position narrated by Dr. Sunil Kumar Dhore, subsequent to the submission of the post mortem report, cannot be taken into consideration. Viewed from the instant perspective, it was also submitted, that the investigating agencies utterly failed in carrying out a disciplined and proper investigation. It was also asserted, that Dr. Sunil Kumar Dhore had been persuaded to turn hostile to the contents of his own document, i.e., the post mortem report dated 16.5.2008. Even though originally Dr. Sunil Kumar Dhore found, that there was no abnormality detected in the private parts of Aarushi Talwar, after the lapse of two years his supplementary statements depict a number of abnormalities. It was submitted, that the Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the reasons depicted in the order of the Magistrate (based on the statements recorded during the course of investigation and the documents and other materials placed before her), the factual submissions advanced at the hands of the learned counsel for the petitioners (noticed in the foregoing paragraph), cannot be placed on the pedestal of reliable evidence. It is only when statements are recorded in defence, which are tested by way of cross examination, and only after documents and material relied upon (in defence), are proved in accordance with the law, the same would constitute evidence, which can constitute a basis, for determining the factual position in the controversy. It is only on the basis of such acceptable evidence, that final conclusions can be drawn. That stage has not arisen. Even though the demeanor of learned counsel representing the petitioners was emphatic, that no other inference beside the one suggested by them was possible, I am of the view, that the stage is not yet right for such emphatic conclusions. Just as the learned counsel for the petitioner had endeavored to find fault with the factual inferences depicted in the order dated 9.2.2011 (which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate of (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of section 87. The criterion which needs to be kept in mind by a Magistrate issuing process, have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ath made by the complainant and the statements made before him by persons examined at the instance of the complainant. (emphasis is mine) The same issue was examined by this Court in M/s. India Carat Pvt. Ltd. vs. State of Karnataka and Anr., (1989) 2 SCC 132, wherein this Court held as under : (16) The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing cognizance and reaching a prima facie view. At this stage, the Magistrate had only to decide whether sufficient ground exists or not for further proceeding in the matter. It is well settled that notwithstanding the opinion of the police, a Magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. (Dy. Chief Controller of Imports Exports v. Roshanlal Agarwal, (2003) 4 SCC 139). (emphasis is mine) All along having made a reference to the words there is sufficient ground to proceed it has been held by this Court, that for the purpose of issuing process, all that the concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Prokash Chandra Bose alias Chabi Bose and Anr., AIR 1963 SC 1430, wherein it was observed as under : (7) Taking the first ground, it seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued; nor can he examine any witnesses at the instance of such a person. Of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interests of justice. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion to that effect had been made by counsel appearing for respondent No.1. This inference is irresistible and we hold that on this ground, the enquiry made by the enquiring Magistrate is vitiated. In this connection, the observations of this court in Vadilal Panchal v. Dattatraya Dulaji, (1961) 1 SCR 1 at p.9 : (AIR 1960 SC 1113 at p. 1116) may usefully be quoted : The enquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage, for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial. (emphasis is mine) Recently an examination of the defence(s) of an accused, at the stage of issuing process, came to be examined by this Court in CREF Finance Ltd. vs. Shree Shanthi Homes (P) Ltd. and Anr., (2005) 7 SCC 467, wherein this Court he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore him then, it should be held to have taken cognizance of the offence and proceeded with the inquiry. We are, therefore, of the opinion that in the facts and circumstances of this case, the High Court erred in holding that the Magistrate had not taken cognizance, and that being a condition precedent, issuance of process was illegal. 11. Counsel for the respondents submitted that cognizance even if taken was improperly taken because the Magistrate had not applied his mind to the facts of the case. According to him, there was no case made out for issuance of process. He submitted that the debtor was the Company itself and Respondent 2 had issued the cheques on behalf of the Company. He had subsequently stopped payment of those cheques. He, therefore, submitted that the liability not being the personal liability of Respondent 2, he could not be prosecuted, and the Magistrate had erroneously issued process against him. We find no merit in the submission. At this stage, we do not wish to express any considered opinion on the argument advanced by him, but we are satisfied that so far as taking of cognizance is concerned, in the facts and circumstances of this case, it has been taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a rejection of the defences raised on behalf of the petitioner. The defences raised on behalf of the accused will have to be substantiated through cogent evidence and thereupon, the same will be examined on merits, for the exculpation of the accused, if so made out. 20. The submissions dealt with hereinabove constituted the primary basis of challenge, on behalf of the petitioner. Yet, just before the conclusion of the hearing of the matter, learned counsel representing the petitioner stated, that the petitioner would be satisfied even if, keeping in mind the defences raised on behalf of the petitioner, further investigation could be ordered. This according to learned counsel will ensure, that vital aspects of the controversy which had remained unraveled, will be brought out with the possibility of identifying the real culprits. This according to the learned counsel for the petitioner would meet the ends of justice. 21. The contention advanced at the hands of the learned counsel for the petitioner, as has been noticed in the foregoing paragraph, seems to be a last ditch effort, to savage a lost situation. The plea for further investigation, was raised by Dr. Rajesh Talwar in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt by filing Special Leave Petition (Criminal) no.2982 of 2011 (renumbered as Criminal Appeal no. 16 of 2011). While dismissing the aforesaid Criminal Appeal vide order dated 6.1.2012 this Court in paragraph 11 observed as under : Obviously at this stage we cannot weigh evidence. Looking into the order of Magistrate, we find that he applied his mind in coming to the conclusion relating to taking of cognizance. The Magistrate has taken note of the rejection report and gave his prima facie observation on the controversy upon a consideration of the materials that surfaced in the case. (emphasis is mine) Thereafter, the matter was disposed of, by this Court, by recording the following observations : 24. In the above state of affairs, now the question is what is the jurisdiction and specially the duty of this Court in such a situation under Article 136? 25. We feel constrained to observe that at this stage, this Court should exercise utmost restrain and caution before interfering with an order of taking cognizance by the Magistrate, otherwise the holding of a trial will be stalled. The superior Courts should maintain this restrain to uphold the rule of law and sustain t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns during the course of hearing no reference whatsoever was made either to the order passed by the High Court, and more significantly, to the order passed by this Court (dated 6.1.2012) of which review has been sought. No error whatsoever was pointed out in the order passed by this Court on 6.1.2012. Learned counsel for the CBI during the course of hearing, was therefore fully justified in repeatedly canvassing, that through the instant review petition, the petitioner was not finding fault with the order dated 6.1.2012 (of which review has been sought), but with the order passed by the Magistrate dated 9.2.2011. That, I may say, is correct. The order of this Court did not fall within the realm of the petitioner s rational acceptability. This, in my view, most certainly amounts to misuse of jurisdiction of this Court. It was sufficient for this Court, while determining a challenge to an order taking cognizance and/or issuing process to affirm, that the Magistrate s order was based on satisfaction. But that has resulted in the petitioner s lamentation. This Court has been required to pass a comprehensive order after hearing detailed submissions for days at end, just for the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not felt the necessity of reiterating those facts in my order, except stating the following few facts: The Magistrate by a detailed order dated 09.02.2011 rejected the closure report submitted by the CBI and took cognizance under Section 190 Cr.P.C. and issued process under Section 204, Cr.P.C. to the petitioner and her husband, Dr. Rajesh Talwar, for the offence of murder of their daughter Aarushi Talwar and their domestic servant Hemraj on 16.05.2008 under Section 302/34 IPC and for the offence of causing disappearance of evidence of offence under Section 201/34 IPC. The order dated 09.02.2011 of the Magistrate was challenged by the petitioner in Criminal Revision No.1127 of 2009 before the High Court of Judicature at Allahabad, but the High Court dismissed the Criminal Revision by order dated 18.03.2011. The order of the High Court was thereafter challenged by the petitioner in S.L.P. (Crl.) No.2982 of 2011 in which leave was granted by this Court and the S.L.P. was converted to Criminal Appeal No.16 of 2011. Ultimately, however, by order dated 06.01.2011, this Court dismissed the Criminal Appeal and the petitioner has filed the present Review Petition against the order di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges. This Court has held in Ramesh Singh case that even at the stage of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, is not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. A fortiori, at the stage of Sections 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session. Thus, in a case exclusively triable by the Court of Session, all that the Magistrate has to do at the stage of Section 204 Cr.P.C. is to see whether on a perusal of the evidence there is sufficient ground for proceeding against the accused and at this stage, the Magistrate is not required to weigh the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to record reasons at the stage of issuing the process against the accused. In the absence of any legal requirement in Section 204 Cr.P.C. to issue process, it was not legally necessary for the Magistrate to have given detailed reasons in her order dated 09.02.2011 for issuing process to the petitioner and her husband Dr. Rajesh Talwar. 8. The fact, however, remains that the Magistrate has given detailed reasons in the order dated 09.02.2011 issuing process and the order dated 09.02.2011 itself does not disclose that the Magistrate has considered all the relevant materials collected in course of investigation. Yet from the mere fact that some of the relevant materials on which the petitioner relies on have not been referred to in the order dated 09.02.2011, the High Court could not have come to the conclusion in the revision filed by the petitioner that these relevant materials were not considered. Moreover, this Court has held in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi Ors. [(1976) 3 SCC 736] that whether the reasons given by the Magistrate issuing process under Section 202 or 204 Cr.P.C. were good or bad, sufficient or insufficient, cannot be examined by the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst them in the case which was pending before the Sessions Court. As has been clarified by this Court in Kewal Krishan v. Suraj Bhan Anr. (supra), at the stage of Section 204 Cr.P.C. the standard to be adopted by the Magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing of charges by the Sessions Court. 10. The result of the aforesaid discussion is that the order dated 09.02.2011 of the Magistrate taking cognizance under Section 190 Cr.P.C. and issuing process against the petitioner and her husband under Section 204 Cr.P.C. could not have been interfered with by the High Court in the Revision filed by the petitioner. Moreover, once the order of the Magistrate taking cognizance and issuing process against the petitioner and her husband was sustained, there is no scope for granting the relief of further investigation for the purpose of finding out whether someone other than the petitioner and her husband had committed the offences in respect of the deceased persons Aarushi and/or Hemraj. As has been held by this Court in Randhir Singh Rana v. State (Delhi Administration) [(1997) 1 SCC 361], once a Magistrate takes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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