DR. MRS. NUPUR TALWARversusC.B.I., DELHI & ANR.

                    [2012] 1 S.C.R. 31

               DR. MRS. NUPUR TALWAR                          A
                             v.
                   C.B.I., DELHI & ANR.
             (Criminal Appeal No. 68 of 2012)

                    JANUARY 6, 2012
                                                              B
            [ASOK KUMAR GANGULY AND
            JAGDISH SINGH KHEHAR, JJ.]

    Constitution of India, 1950:
                                                              c
     Article 136 - Jurisdiction of Supreme Court to interfere
with order of Magistrate taking cognizance, as affirmed by High
Court - Held: The order whereby cognizance of the offence
has been taken by the Magistrate, unless is perverse or based
on no material, should be sparingly interfered with - In the D
instant case, it is evident from the order of the Magistrate
taking cognizance that there has been due application of
mind by him and it is a well reasoned order - The order of
the High Court would also show that there has been a proper
application of mind and a detailed speaking order has been E
passed - Therefore, the concurrent order of the Magistrate
which is affirmed by the High Court is not interfered with.

    Code of Criminal Procedure, 1973:

     s.190(1)(b) - Cognizance of offence by Magistrate - Held: F
At the stage of taking cognizance of an 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 record - At this stage the Magistrate is required to
exercise sound judicial discretion and apply his mind to the G
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
                             31                               H
    32       SUPREME COURT REPORTS             [2012) 1 S.C.R.


A facie find out whether an offence has been made out or not.
       In the investigation by the State police, of a case of
  the death of a young girl and a domestic help, initially the
  implication of the parents of the deceased girl transpired.
B However, when the investigation of the case was
  entrusted to the CBI, it filed a closure report. On a notice
  issued by the court, the father of the deceased girl filed
  a protest petition. The Magistrate then took cognizance
  u/s 190(1)(b), CrPC of the offences punishable u/s 302134
C and 201/34 IPC against the parents of the deceased girl
  for committing her murder and the murder of the domestic
  help. On a petition u/s 397/401 CrPC, the High Court
  declined to interfere.

       In the instant appeal filed by the accused mother of
D the deceased girl, the question or consideration before
  the Court was: what should be the extent of judicial
  interference by Supreme Court in connection with an
  order of taking cognizance by a Magistrate while
  exercising his jurisdiction u/s 190 of the Code of Criminal
E Procedure, 1973.

         Disposing of the appeal, the Court

       HELD: 1.1. Section 190 of the Code of Criminal
  Procedure, 1973 lays down the conditions which are
F requisite for the initiation of a criminal proceeding. 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
G 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. [para 18-19) (41-B-CJ

H        1.2. The taking of cognizance means the point in time
  DR. MRS. NUPUR TALWAR v. C.B.I., DELHI & ANR.              33


when a court or a Magistrate takes judicial notice of an           A
offence with a view to initiating proceedings in respect
of such offence which appears to have been committed.
At the stage of taking cognizance of an offence, the court
has only to see whether prima facie there are reasons for
issuing the process and whether the ingredients of the             B
offence are there on record. [para 20-21] [41-D-E]

    S.K. Sinha, Chief Enforcement Officer Vs. Videocon
                                               =
lntemationa/ Ltd. and Ors. 2008 (2 ) SCR 36 (2008) 2 SCC
492 -relied on
                                                                   c
       1.3. 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,
  it is evident from the order of the Magistrate taking            D
  cognizance 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 u/
  ss 397 and 401 of the Code (not u/s 482) at the instance
  of the appellant would also show that there has been a           E
  proper application of mind and a detailed speaking order
  has been passed. [para 23] [42-D-F]

     1.4. At this stage, sitting in a jurisdiction under Article
136 of the Constitution, this Court does not feel inclined
                                                                   F
to go into all the factual aspects of the case. Obviously,
at this stage the Court cannot weigh evidence. The 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               G
uphold the rule of law and sustain the faith of the
common man in i.he administration of justice. Therefore,
the concurrent order of the Magistrate which is affirmed
by the High Court is not interfered with. [para 11,25 and
27] (37-D; 42-H; 43-A-G]                                           H
    34       SUPREME COURT REPORTS               [2012) 1 S.C.R.

A                        Case Law Reference:
         2008 (2) SCR 36          relied on             para 26
       CRIMINAL APPELLATE JURISDICTION : Criminal
    Appeal No. 68 of 2012. .
B
        From the Judgment & Order dated 18.3.2011 of the High
    Court Allahabad in Criminal Revision No. 1127 of 2011.

                                WITH
C SLP (Crl) No. 2982 of 2011.

      H.P. Raval, Harish N. Salve, Ranjeet Kumar, Rajiv Nanda,
  P.K. Dey, Padmalakshmi Nigam, A.K. Sharma, R.N.
  Karanjawala, Manik Karanjawala, Sandeep Kapur, Shivek
D Trehan, Udit Mendiratta (for Karanjawala & Co.), Binu Tamta,
  Dhruv Tamta for the appearing parties.

         The Judgment of the Court was delivered by

       GANGULY, J. 1. We have heard learned counsel for the
E parties.

         2. Leave granted.

       3. The subject matter of challenge before this Court is an
F 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
G No.01 of 2011 (Rajesh Ta/war Vs. Unknown under Section
  302, l.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
H
 DR. MRS. NUPUR TALWAR v. C.B.I., DELHI & ANR.             35
          [ASOK KUMAR GANGULY, J.)
Sections 302/34 and 201/34 l.P.C. against the appellant and      A
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       B
    basis of Police report under section 1~0(1)(b) of Cr.P.C.
    is taken under section 302/34 and 2b1/34 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      C
    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 D
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 E
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. F
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:      G
     "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.                  H
    36           SUPREME COURT REPORTS              (2012) 1 S.C.R.


A         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
B
                  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
c                 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
D                 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
E
                  is not required in the interest of justice.

                                     Prayer
         It is, therefore, prayed that Judicial custody ramand of
F        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
G Talwar was released on his furnishing two sureties of Rs.5 lakh
  each with a personal bond of the same amount.
       8. Thereafter, the C.B.I. filed another closure report on 29th
  December, 2010. Then, on a notice being issued by the Court,
  a protest petition came to be filed by Dr. Rajesh Talwar. Only .
H thereafter, the impugned order of the Magistrate dated 9th
 DR. MRS. NUPUR TALWAR v. C.B.I.. DELHI & ANR.               37
          [ASOK KUMAR GANGULY, J.]
February, 2011 came to be passed. The learned Magistrate A
in his detailed order after cpnsidering 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 8
rejected the conclusion given in the official report of the
Investigating Officer and took cognizance under Section
190(1)(b) of the Code.

     10. Attention of this Court has been drawn to various parts
of the CBI closure report and certain other documents by Mr. C
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 D
  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 corning to the conclusion relating to taking
  of cognizance. The Magistrate has taken note of the rejection
  report and gave his prirna facie observation on the controversy E
  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 F
     mentioned witnesses prirna 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 Hern Raj; Arushi and G
     Hern 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
                                                                  H
    38        SUPREME COURT REPORTS                [2012] 1 S.C.R.


A         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
B        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
c        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
D
         and then locked when the Talwar couple was present in
         the house. 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
E        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
F        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
G        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
H        highest investigating agency of the country in which the
DR. MRS. NUPUR TALWAR v. C.B.I., DELHI & ANR.           39
         [ASOK KUMAR GANGULY, J.]
  public of the country has full confidence. Whenever in a A
  case if any one of the investigating agencies of the country
  remained unsuccessful th~n 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 B
  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 c
  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
  e<ircumstances, and these links are indicating prima facie D
  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 E
  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 F
  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, G
  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 H
    40        SUPREME COURT REPORTS                  [2012) 1 S.C.R.


A        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."

B        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,
C 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:
D
               "However, considering the facts of the case ·it is
         directed that in case the revisionist surrenders before the
         Special Judicial Magistrate (C.8.1.), Ghaziabad and
         applies for bail within a period of two weeks from today
         her bail application shall be dealt with in accordance with
E
         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:-
F
         "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.
         21.03.2011."
G
        . 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
H
 DR. MRS. NUPUR TALWAR v. C.B.I., DELHI & ANR.                41
          [ASOK KUMAR GANGULY, J.]
cognizance by a Magistrate while exercising his jurisdiction        A
under Section 190 of the Code.

    18. Section 190 of the Code Jays down the conditions
which are requisite for the initiation of a criminal proceeding.

     19. At this stage the Magistrate is required to exercise       B
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
                                                                    c .
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   D
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          E
offence are there on record.

     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        F
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 G
    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
                                                                  H
    42        SUPREME COURT REPORTS                 [2012) 1 S.C.R.


A        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
B          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
c          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)
D
           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
E   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
F   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
G   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
H   Magistrate.otherwise the holding of a trial will be stalled. The
 DR. MRS. NUPUR TALWAR v. C.B.I., DELHI & ANR.                43
          [ASOK KUMAR GANGULY, J.]

superior Courts should maintain this restrain to uphold the rule     A
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 Mis. India         B·
Carat Private Ltd. Vs. State of Kamataka & 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:-                                          c
    "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     D
    accused. The Magistrate can take into account the
    statements of the witnesses examined by the police durihg
    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              E
    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           F
    emerging from the investigation and take cognizance of the
    case, if he thinks fiL 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. G
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           H
    44         SUPREME COURT REPORTS             [2012] 1 S.C.R.


A 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
B 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 expeditiously held.

           29. The appeal is accordingly disposed of.
c
    R.P.                                      Appeal disposed of.