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TMI Blog2012 (6) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... n and placed before her along with the closure report. As we have seen, Sub-section (1) of Section 204 Code of Criminal Procedure. provides that the Magistrate shall issue the process (summons or warrant) if in his opinion there was sufficient ground for proceeding and therefore so long as there are materials to support the opinion of the Magistrate that there was sufficient ground for proceeding against the persons to whom the processes have been issued, the High Court in exercise of its revisional power will not interfere with the same only because it forms a different opinion on the same materials. The result of the aforesaid discussion is that the order dated 09.02.2011 of the Magistrate taking cognizance u/s 190 Code of Criminal Procedure. and issuing process against the Petitioner and her husband u/s 204 Code of Criminal Procedure. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice 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, are being extracted hereunder: Despite best efforts by investigating team, some of the major shortcomings in the evidence are: i. No blood of Hemraj was found on the bed sheet and pillow of Aarushi. There is no evidence to prove that Hemraj was killed in the room of Aarushi. ii. Dragging mark on steps only indicate that murder has taken place somewhere other than the terrace. iii. On the clothes of Dr. Rajesh Talwar, only the blood of Aarushi was found but there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nderstanding 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) Under Section 302/201 Indian Penal Code 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. In response to the notice received by Dr. Rajesh Talwar, he submitted a detailed protest petition dated 25.1.2011, 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 Aarushi Talwar and Hemraj. 6. On 9.2.2011, the Magistrate rejected the closure report submitted by the CBI. The Magistrate also rejected, the prayer made in the protest petition for further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. 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 mandate, that at the time of passing an order of discharge in favour of an accused, the provisions referred to above necessitate reasons to be recorded. It was, however, noticed, that there was no such prescribed mandate to record reasons, at the time of framing charges against an accused. In U.P. Pollution Control Board v. M/s Mohan Meakins Ltd. and Ors. (2000) 3 SCC 745, the issue whether it was necessary for the trial court to record reasons while issuing process came to be examined again, and this Court hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial. 12. In the above context what is to be looked at during the stage of issuing process is whether there are allegations in the complaint by which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 Anr. v. State (NCT of Delhi) and Anr. (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 legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bound to appear before the Court on the given date and time. Willful disobedience is liable to be punished Under Section 174 Indian Penal Code. It is a ground for contempt of Court. 10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 matter any further, it would have been sufficient to conclude the issue. The present situation, however, requires a little further elaboration. Keeping in mind the peculiarity of the present matter and the special circumstances arising in this case, some observations need to be recorded. Accordingly, to determine whether reasons ought to have been recorded by the Magistrate, in this case, is being dealt with in the succeeding paragraphs. 11. On the basis of the foundational facts already recorded above, I shall examine the merits of the first submission advanced before the Court. First and foremost it needs to be remembered, that the CBI had submitted a closure report on 29.12.2010. The Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rarily. 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 limited to taking cognizance and issuing process. A Magistrate in such a situation, on being satisfied, has the authority to merely commit the case for trial to a Court of Session, Under Section 209 of the Code of Criminal Procedure. Section 209 is being extracted hereunder: Commitment of case to Court of Session when offence is triable exclusively by it - When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall - (a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicious. 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 Anr. v. KPS Gill and Anr. (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 aggrieved raises objections to the acceptance of a police report which recommends discharge of the accused and seeks to satisfy the Court that a case for taking cognizance was made out, but the Court overrules such objections, it is just and desirable that the reasons therefore be recorded. Necessity to give reasons which disclose proper appreciation of the issues before the Court needs no emphasis. Reasons introduce clarity and minimize chances of arbitrariness. That necessarily means that recording of reasons will not be necessary when the Court accepts such police report without any demur from the complainant. As the order of the learned Magistrate in the instant case does not contain any reason whatsoever, even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the Magistrate was not obliged to record reasons, having passed a speaking order while issuing process, the Magistrate adopted the more reasonable course, though the same was more ponderous, cumbersome and time consuming. 12. Therefore, in the present set of circumstances, the Magistrate having examined the statements recorded during the course of investigation Under Sections 161 and 164 of the Code of Criminal Procedure, 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. I, therefore, hereby find absolutely no merit in the criticism of the Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 were no wrinkles on the bed sheet. On the pillow kept behind Aarushi Talwar, there ought to have been blood stains when she was attacked (as she was hit on her head, and her neck had been slit), but the same were absent. These facts were highlighted by the Magistrate to demonstrate the dressing up of the place(s) of occurrence, to further support the assumption of the involvement of an insider, as against, an outsider. Fourthly, based on the statements of Virendera Singh, Sanjay Singh, Raj Kumar, Chandra Bhushan, Devender Singh, Ram Vishal and Punish Rai Tandon, recorded during the course of investigation, it was sought to be assumed, that no outsider was seen either entering or leaving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 accused themselves were surgically trained, it was gathered that Dr. Rajesh Talwar and Dr. Nupur Talwar were themselves responsible for the twin murders. Ninthly, in paragraph 15 of the Magistrate's order dated 9.2.2011 it is noticed, that a request was made to Dr. Sunil Kumar Dhore for not mentioning the word rape in the post mortem proceedings. Investigation also established, that Dr. Dinesh Talwar (brother of Dr. Rajesh Talwar), had spoken to Dr. Sunil Kumar Dhore and exerted influence over Dr. Sunil Kumar Dhore through Dr. Dogra who allegedly instructed Dr. Sunil Kumar Dhore in connection with the post mortem examination. On the basis of the aforesaid material highlighted in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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, another factual aspect emerging during the course of investigation was, that the body of Hemraj was recovered on the day following the murder of Aarushi Talwar, i.e., on 17.5.2008. When Dr. Rajesh Talwar was shown the body, he could not identify it as that of Hemraj. The dead body was identified by one of Hemraj's friend. Dr. Nupur Talwar confirmed, that the body recovered from the terrace was of Hemraj, on the basis of the inscription on the shirt worn by him. From the fact that, neither Dr. Rajesh Talwar nor Dr. Nupur Talwar could identify the body of Hemraj, from its appearance, it was sought to be figured, that they were not cooperating with the investigation. Besides the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 servants. In the night of the incident internet was switched on and off in the house in regard to which this evidence is available in the case diary that it was switched on or off by some person. Private parts of deceased Aarushi were cleaned and deceased Hem Raj was dragged in injured condition from the flat of Dr. Rajesh Talwar up to the terrace and the terrace was locked. Prior to 15.5.2008 terrace was not locked. According to documents available on the case diary blood stains were wiped off on the staircase, both the deceased were slit with the help of a surgical instrument by surgically trained persons and shape of injury on the head and forehead was V-shaped and according to the evidence ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 committing murder of deceased Aarushi and Hem Raj and for tempering with the proof. At this stage, the principle of law laid down by Hon'ble Supreme Court in the case of Jugdish Ram v. State of Rajasthan reported in AIR 2004 SC 1734 is very important wherein the Hon'ble Supreme Court held that investigation is the job of Police and taking of cognizance is within the jurisdiction of the Magistrate. If on the record, this much of evidence is available that prima facie cognizance can be taken then the Magistrate should take cognizance, Magistrate should be convinced that there is enough basis for further proceedings rather for sufficient basis for proving the guilt. 15. In order to canvass t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 stairs leading to the terrace were from outside the flat, i.e., from the common area of the apartment complex beyond the outermost grill-door leading into the house No. L-32, Jalvayu Vihar, Sector 25, Noida. It was therefore submitted, that under no circumstances Dr. Rajesh Talwar or Dr. Nupur Talwar could be linked to the murder of Hemraj, since the body of Hemraj was found at a place, which had no internal connectivity from within the flat of the Talwars. Fourthly, as noticed above, since the flat of the Talwars was bolted from the outside, neither Dr. Rajesh Talwar nor Dr. Nupur Talwar could have taken the body of Hemraj to the terrace, even if the inference drawn by the CBI, that the murder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 the narco analysis, brain mapping and polygraph tests conducted on Krishna Thadarai. Seventhly, the investigating agency, it was contended, was guilty of not taking the investigative process to its logical conclusion. In this behalf it was submitted, that finger prints were found on a bottle of Ballantine Scotch Whiskey, found on the dining table, in the Talwar flat. The accused, according to Learned Counsel, had requested the investigating agency to identify the fingerprints through touch DNA test. The accused had also offered to bear the expenses for the same. According to the Learned Counsel, the identification of the fingerprints on the bottle, would have revealed the identity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Magistrate having referred to the last of such statements dated 25.5.2010, inferred therefrom, that the private parts of Aarushi Talwar had been cleaned after her murder. It was submitted, that the absurdity and improbability of the assumption could be established from the fact, that the white discharge found from the vagina of Aarushi Talwar, was sent for pathological examination, which showed that no spermatozoa was detected therein. The instant inference of the Magistrate, according to Learned Counsel, had resulted in grave miscarriage of justice. Tenthly, it was contended, that the dimension of the injury on the heads of Aarushi Talwar and Hemraj, was stated to match with the dimension of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 constituted the basis of issuing process), Learned Counsel for the CBI submitted, that the factual foundation raised by the Petitioner (details whereof have been summarized above) were based on surmises and conjectures. Even though I have recorded a summary of the factual basis, on which the Learned Counsel for the Petitioner have based their contentions, I am intentionally not recording the reasons whereby their veracity was assailed. That then, would have required me to further determine, which of the alternative positions were correct. I am of the view, that such an assessment at the present stage would be wholly inappropriate. My dealing with the factual contours of the present controve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (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 been repeatedly delineated by this Court. I shall therefore, first examine the declared position of law on the subject. Reference in this behalf may be made to the decision rendered by this Court in Cahndra Deo v. Prokash Chandra Bose alias Chabi Bose and Anr. AIR 1963 SC 1430, wherein it was observed as under: (8) Coming to the second ground, we have no hesitation is holding that the test propounded by the learned single judge of the High Court is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case Under Section 190(1)(a) though it is open to him to act Under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second Respondent and order the issue of summons to him. (17) The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 and 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 concerned Court has to determine is, whether the material placed before it is sufficient for proceeding against the accused . The observations recorded by this Court extracted above, further enunciate, that the term sufficient to proceed is different and distinct from the term sufficient to prove and established guilt . Having taken into consideration the factual position based on the statements recorded Under Section 161 of Code of Criminal Procedure (as also, under Section 164 thereof), and the documents appended to the charge sheet, as also, the other materials available on the file; I have no doubt whatsoever in my mind, that the Magistrate was fully justified in issuing process, since the aforesaid statements, documents and materials, were most certainly suff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, 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 beyond that, he cannot go. It was, however, contended by Mr. Sethi for Respondent No. 1 that the very object of the provisions of Ch. XVI of the Code of Criminal Procedure is to prevent an accused person from being harassed by a frivolous complaint and, therefore, power is given to a Magistrate before whom complaint is made to postpone the issue of summons to the accused person pending the result of an enquiry made either by himself or by a Magistrate subordinate to him. A privilege conferred by these provisions, can according to Mr. Sethi, be waived by the accused person and he can take part in the proceedings. No doubt, one of the objects behind the provisions of Section 202, Code of Criminal Procedure is to enable the Magistrate to scrutinize carefully the allegations m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake 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. v. Shree Shanthi Homes (P) Ltd. and Anr. (2005) 7 SCC 467, wherein this Court held as under: 10. In the instant case, the Appellant had filed a detailed complaint before the Magistrate. The record shows that the Magistrate took cognizance and fixed the matter for recording of the statement of the complainant on 1-6-2000. Even if we assume, though that is not the case, that the words cognizance taken were not to be found in the order recorded by him on that date, in our view that would make no difference. Cognizance is taken of the offence and not of the offender and, therefore, once the court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 properly after application of mind. The Magistrate issued process only after considering the material placed before him. We, therefore, find that the judgment and order of the High Court is unsustainable and must be set aside. This appeal is accordingly allowed and the impugned judgment and order of the High Court is set aside. The trial court will now proceed with the complaint in accordance with law from the stage at which the Respondents took the matter to the High Court. (Emphasis is mine) A perusal of the legal position expressed by this Court reveals the unambiguous legal position, that possible defence(s) of an accused need not be taken into consideration at the time of issuing process. There may be a situation, wherein, the defence(s) raised by an accused is/are f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 his protest petition dated 25.1.2011. The prayer for further investigation, was declined by the Magistrate in her order dated 9.2.2011. Dr. Rajesh Talwar who had raised the aforesaid prayer, did not assail the aforestated determination. The plea for further investigation therefore attained finality. Dr. Nupur Talwar, the Petitioner herein, did not make a prayer for further investigation, when she assailed the order passed by the Magistrate dated 9.2.2011 before the High Court (vide Criminal Revision Petition No. 1127 of 2011). Having not pressed the aforesaid prayer before the High Court, it is not open to the Petitioner Dr. Nupur Talwar, to raise the same before this Court, in a proceeding which emerges out of the determination rendered by the High Court (in Criminal Revision Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction 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 the faith of the common man in the administration of justice. 26. Reference in this connection may be made to a three Judge Bench decision of this Court in the case of M/s India Carat Private Ltd. v. State of Karnataka and Anr. (1989) 2 SCC 132. Explaining the relevant principles in paragraphs 16, Justice Natarajan, speaking for the unanimous three Judge Bench, explained the position so succinctly that we could rather quote the observation as under: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction 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 Petitioner's satisfaction. I have noticed, that every single order passed by the Magistrate, having any repercussion, is being assailed right up to this Court. of course, the right to avail a remedy under law, is the right of every citizen. But such a right, cannot extend to misuse of jurisdiction. The Petitioner's attitude expresses discomfort at every order not acceding to her point of view. Even at the earlier juncture, full dress arguments, as have been addressed now, had been painstakingly advanced. Determination on the merits of the main controversy, while dealing with the stage of cognizance and/or issuance of process, if deliberated upon, is bound to prejudice one or the other party. It needed extreme restraint not to deal with the individual factual aspects canvassed on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicature 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 dismissing the Criminal Appeal. 3. The Petitioner is aggrieved by the order dated 09.02.2011 of the Magistrate taking cognizance Under Section Under Section 190 Code of Criminal Procedure and issuing process Under Section 204 Code of Criminal Procedure. against her and her husband. As admittedly there are offences committed in respect of the two deceased persons, Aarushi and Hemraj, there cannot be any infirmity in the order of the Magistrate taking cognizance. Hence, the only question that we are called upon to decide is whether the Magistrate was justified in issuing the process to the Petitioner and her husband by her order dated 09.02.2011. 4. Sub-section (1) of Section 204 Code of Criminal Procedure. under wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure. 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 meticulously as if he was the trial court nor is he required to scrutinise the evidence by the same standard by which the Sessions Court scrutinises the evidence to decide whether to frame or not to frame charges Under Section 227/228, Code of Criminal Procedure. 6. Keeping in mind these distinctions between the standards of scrutiny at the stages of issue of process, framing of charges and the trial, the contentions of the parties can be now considered. Learned senior counsel for the Petitioner, Mr. Harish Salve, produced before us the materials which were collected during the investigation and submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 and Ors. (1976) 3 SCC 736 that whether the reasons given by the Magistrate issuing process Under Section 202 or 204 Code of Criminal Procedure. were good or bad, sufficient or insufficient, cannot be examined by the High Court in the revision. All that the High Court, however, could do while exercising its powers of revision Under Section 397/401 Code of Criminal Procedure when the order issuing process Under Section 204 Code of Criminal Procedure. was under challenge was to examine whether there were materials before the Magistrate to take a view that there was sufficient ground for proceeding against the persons to whom the processes have been issued Under Section 204 Code of Criminal Procedure. In the present case, the High Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. 10. The result of the aforesaid discussion is that the order dated 09.02.2011 of the Magistrate taking cognizance Under Section 190 Code of Criminal Procedure. and issuing process against the Petitioner and her husband Under Section 204 Code of Criminal Procedure. 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 cognizance of an offence Under Section 190 Code of Criminal Procedure., he cannot order of his own further investigation in the case Under Section 156(3) Code of Criminal Procedure. but if subsequently the Sessions Court passes an order discharging the accused persons, further investigation by the police on its own would be perm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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