Comment : In this case the magistrate’s order refusing to accept the final report of the CBI, and issuing process to the parents of deceased Arushi, was assailed in first the High Court – and later in the Supreme Court.
The Court upheld the order – reiterating that the domain of scrutiny at time of issue of process is very narrow – a judge is not expected to go into the merits of the matter, the evidences etc. – if the matter appears such that there are reasonable grounds for further enquiry – then magistrate is justified in taking cognizance – here case is not to be seen with a view to adjudge guilt but to ascertain whether grounds to further inquire – he is not expected to hold a mini trial at such stage. The Court held there were sufficient circumstances warranting further inquiry into the guilt of the couple. The Court supported the conclusions derived by the Special JM as reasonable, the Special Judicial Magistrate had considered the following circumstances :-
i) Last seen together (species of opportunity) parents being alone with the girl/servant – with no chance of any outsider incursion (justifiable – put burden on them to prove facts within their personal knowledge S.106 IEA
ii) unnatural conduct of parents in trying to obliterate proof (Getting the wall painted/cleaning of private parts etc)
iii) medical opinion as regards injury by surgical equipment by a trained hand/missing golf stick.
Tersely put, the court found adequate material prima facie making out offences u/s 302/201 IPC.
Here is the full judgment in extenso :-
Dr. Mrs. Nupur Talwar Vs. C.B.I., Delhi
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
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 order of the Magistrate dated 9th February, 2011 came to be passed. The
learned Magistrate in his detailed order after considering various aspects of the matter took
cognizance of the offence and passed the order, quoted above.
9. It is apparent from the detailed order that the Magistrate rejected the conclusion given in the
official report of the Investigating Officer and took cognizance under Section 190(1)(b) of the
10. Attention of this Court has been drawn to various parts of the CBI closure report and certain
other documents by Mr. Ranjit Kumar, learned senior counsel appearing for the appellant.
11. Sitting in a jurisdiction under Article 136 of the Constitution, we do not feel inclined to go
into all the factual aspects of the case. 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. We reproduce the conclusions reached by the Special Judicial Magistrate.
“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, Arushi and servant Hem Raj; Arushi and Hem Raj, the two
out of 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 no 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 Arushi 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 available in the case diary that appeared to have been caused
with a golf stick. A person coming from outside, during the presence of Talwar couple in
the house could have neither used the Internet nor could have taken the dead body of
deceased Hem Raj to the terrace and then locked when the Talwar couple was present in
On the basis of evidence available in the case diary footprints stained with blood were
found in the room of Arushi but outside that room bloodstained footprints were not
found. If the assailant would go out after committing murder then certainly his footprints
would not be confined up to the room of Arushi and for an outsider it is not possible that
when Talwar couple were present in the house he would use liquor or would try to take
dead body on the terrace. Accused after committing the offence would like to run away
immediately so that no one could catch him. On the basis of evidence of all the above
witnesses and circumstantial evidence available in case diary during investigation it was
expected from the Investigating Officer to submit charge- sheet against Dr. Rajesh
Talwar and Dr. Nupur Talwar. In such type of cases, when offence is committed inside a
house, there direct evidence cannot be expected. Here it is pertinent to mention that CBI
is the highest investigating agency of the country in which the public of the country has
full confidence. Whenever in a case if any one of the investigating agencies of the
country remained unsuccessful then that case is referred to CBI for investigation. In such
circumstances, it is expected of CBI that applying the highest standards, after
investigation it should submit such a report before the Court 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 inside 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 Arushi and Dr. Rajesh Talwar, indicates towards the conclusion
that he wants to tamper with the evidence. From the evidence … 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 deserves 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 Arushi and Hem Raj
and for tampering with the proof.
At this stage, the principle of law laid down by Hon’ble Supreme Court in the case of Jagdish Ram Vs. State of Rajasthan and another, 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.”
12. Assailing the said order, a Criminal Revision was filed before the High Court under Sections
397 and 401 of the Code, not by Dr. Rajesh Talwar, father of the girl but by Dr. Mrs. Nupur
Talwar, her mother.
13. The High Court passed its order dated 18th March, 2011 after a detailed consideration of the
factual aspects and legal questions involved in the matter of taking cognizance and the same order
is impugned before us.
14. In the concluding portion of its order, High Court held:
“However, considering the facts of the case it is directed that in case the revisionist
surrenders before the Special Judicial Magistrate (C.B.I.), Ghaziabad and applies for bail
within a period of two weeks from today her bail application shall be dealt with in
accordance with the law expeditiously.”
15. On the next day i.e. 19th March 2011, which was a Saturday, a Bench of this Court
entertained at 7 P.M. an SLP against the High Court’s order and passed the following order:-
“List on the notified date. In the meanwhile, there shall be stay as prayed for. However,
the petitioners shall deposit their passports with the trial Court on Monday i.e.
16. Since then, the matter has remained pending before this Court.
17. Now the question is what should be the extent of judicial interference by this Court in
connection with an order of taking cognizance by a Magistrate while exercising his jurisdiction
under Section 190 of the Code.
18. Section 190 of the Code lays down the conditions which are requisite for the initiation of a
19. At this stage the Magistrate is required to exercise sound judicial discretion and apply his
mind to the facts and materials before him. In doing so, the Magistrate is not bound by the
opinion of the 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.
20. The taking of cognizance means the point in time when a Court or a Magistrate takes judicial
notice of an offence with a view to initiating proceedings in respect of such offence which
appears to have been committed.
21. At the stage of taking of cognizance of offence, the 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
22. The principles relating to taking of cognizance in a criminal matter has been very lucidly
explained by this Court in S.K. Sinha, Chief Enforcement Officer Vs. Videocon International
Ltd. and Ors. – (2008) 2 SCC 492, the relevant observations are set out:
“19. The expression “cognizance” has not been defined in the Code. But the word
(cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal
law. It merely means “become aware of” and when used with reference to a court or a
Judge, it connotes” to take notice of judicially”. It indicates the point when a court or a
Magistrate takes judicial notice of an offence with a view to initiating proceedings in
respect of such offence said to have been committed by someone.”
20. “Taking Cognizance” does not involve any formal action of any kind. It occurs as
soon as a Magistrate applies his mind to the suspected commission of an offence.
Cognizance is taken prior to commencement of criminal proceedings. Taking of
cognizance is thus a sine qua non or condition precedent for holding a valid trial.
Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate
has taken cognizance of an offence depends on the facts and circumstances of each case
and no rule of universal application can be laid down as to when a Magistrate can be said
to have taken cognizance.” (para nos. 19 and 20 at page 499 of the report)
23. 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. In
the instant case, anyone reading the order of the Magistrate taking cognizance, will come to the
conclusion that there has been due application of mind by the Magistrate and it is a well reasoned
order. The order of the High Court passed on a Criminal Revision under Sections 397 and 401 of
the code (not under Section 482) at the instance of Dr. Mrs. Nupur Talwar would also show that
there has been a proper application of mind and a detailed speaking order has been passed.
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 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. Vs. State of Karnataka & 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 would 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 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, if he thinks fit, in exercise of his powers under Section 190(1)(b)
and direct the issue of process to the accused…”
27. These well settled principles still hold good. Considering these propositions of law, we are of
the view that we should not interfere with the concurrent order of the Magistrate which is
affirmed by the High Court.
28. We are deliberately not going into various factual aspects of the case which have been raised
before us so that in the trial the accused persons may not be prejudiced. We, therefore, dismiss
this appeal with the observation that in the trial which the accused persons will face, they should
not be prejudiced by any observation made by us in this order or in the order of the High Court or
those made in the Magistrate’s order while taking cognizance. The accused must be given all
opportunities in the trial they are to face. We, however, observe that the trial should be
29. The appeal is accordingly disposed of.