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2012 (6) TMI 905
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....f the same house, i.e., house No. L-32, Jalvayu Vihar, Sector 25, Noida, where Aarushi's murder had also allegedly been committed. 2. The initial investigation into the double murder was carried out by the U.P. Police. On 29.5.2008 the State of Uttar Pradesh handed over the 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....
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....ave conducted postmortem have said that cut was done by surgically trained person with a small surgical instrument. xi. There is no evidence to explain the presence of Hemraj's mobile in Punjab after murder. xii. The offence has occurred in an enclosed flat hence no eye witness are available. xiii. The blood soaked clothes of the offenders, 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) Under Section 302/201 Indian Pen....
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....k was against the order passed by the Magistrate dated 9.2.2011. 8. The order passed by the Magistrate on 9.2.2011 was startlingly criticized for being unnecessarily exhaustive. The Magistrate was accused of discussing the evidence in minute detail, and thereby, for having evaluated the merits of the controversy, well before the beginning of the trial. It was sought to be canvassed, that even if the 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 a....
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....ection 204 of the Code of Criminal Procedure and it has been argued that no reasons for summoning an accused person need be given. I feel that Under Section 204 aforesaid, a Magistrate has to form an opinion that there was sufficient ground for proceeding and, if an opinion had to be formed judicially, the only mode of doing so is to find out express reasons for coming to the conclusions. In the impugned order, the 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 cou....
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....s and Exports v. Roshanlal Agarwal and Ors. (2003) 4 SCC 139, wherein this Court concluded as below: 9. In 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 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. This question was considered recently in U.P. Pollution Control Board v. M/s. Mohan Meakins Ltd. and 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. ....
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....te proceedings- If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely: (a) attaches and sells property Under Section 83; (b) issues a search-warrant for a document, parcel or other thing in the custody of a postal or telegraph authority; (c) demands security to keep the peace; (d) demands security for good behaviour; (e) discharges a person lawfully bound to be of good behaviour; (f) cancels a bond 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 pas....
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....which further necessitated the recording of reasons. Firstly, the complainant himself (Dr. Rajesh Talwar, who authored the first information report dated 16.5.2008) was being summoned as an accused. Such an action suggests, that the complainant was really the accused. The action taken by the Magistrate, actually reversed the position of the adversaries. The party which was originally pointing the finger, is now sought to be pointed at. Certainly, the complainant would want to know why. Secondly, the complainant (Dr. Rajesh Talwar) had filed a protest petition dated 25.1.2011, 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, w....
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....t instance, discharge the responsibility of determining whether charges have to be framed or not. Merely because reasons have been recorded, the Court of Session will have an opportunity to view the matter, in the manner of understanding of the Magistrate. If reasons had not been recorded, the Court of Session may have overlooked, what had been evaluated, ascertained and comprehended by the Magistrate. of course, a Court of Session, on being seized of a matter after committal, being the competent court, as also, a court superior to the Magistrate, has to examine all issues independently, within the four corners 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 ....
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....cts in his complaint and alleges that the accused is guilty of an offence Under Section 307, Indian Penal Code the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclosed an offence Under Section 324, Indian Penal Code only and he may take cognizance of an offence Under Section 324 instead of Section 307. Similarly if a police report mentions that half a dozen persons examined by them claim to be eye witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. 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 cog....
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.... Different aspects taken into consideration by the Magistrate are accordingly being summarized hereunder: Firstly, based on the statements of Umesh Sharma and Bharti recorded during the course of investigation, coupled with the factual position depicted in the first information report, it was sought to be inferred, that on the night of the incident Dr. Rajesh Talwar, Dr. Nupur Talwar, Aarushi Talwar and Hemraj only were present at the place of the occurrence, namely, house No. L-32 Jalvayu Vihar, Sector 25, Noida. Being last seen together, the needle of suspicion would point at the two surviving persons, specially if it could be established, that the premises 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 ....
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....of Deepak Kanda, Bhupender Singh and Rajesh Kumar, recorded during the course of investigation, it was felt that on the night when the murder was committed, i.e. the night intervening 15-16.5.2008 the internet connection was regularly used by Dr. Rajesh Talwar from 11:00 p.m. to 12:08 a.m. In fact, both Dr. Rajesh Talwar, as also, Dr. Nupur Talwar themselves confirmed to the witnesses whose statements were recorded during the course of investigation, that the internet router was switched on at 11:00 p.m. and Dr. Rajesh Talwar had thereafter used the internet facility. Based on this factual position it was gathered, that both Dr. Rajesh Talwar and Dr. Nupur Talwar were awake and active at or around the time of occurrence (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....
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....on the statements of Rohit Kocchar and Dr. Rajeev Varshney, recorded Under Section 164 of the Code of Criminal Procedure, disclosing, that they had informed Dr. Rajesh Talwar, that the terrace door, the lock on the terrace door, as also, the upper steps of the staircase had blood stains. They also asserted, that Dr. Rajesh Talwar "... climbed up some steps but immediately came down and did not say anything about keys and went inside the house ...". The aforesaid narration, coupled with the fact, that Dr. Prafull Durrani one of the friends of Dr. Rajesh Talwar stated, that he was "... told by Dr. Rajesh Talwar, that the key of the terrace used to be with Hemraj. He did not know about the key ..." was the basis for assuming, that Dr. Rajesh Talwar was preventing the investigating 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 all....
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....ents and materials taken into consideration, can at the present juncture be treated as reliable evidence which can be taken into consideration, for finally adjudicating upon the guilt or innocence of the accused. It is only when the witnesses appear in court, and make their statements on oath, and their statements have been tested by way of cross examination; and only after the documents and other materials relied upon are proved in accordance with law, the same would constitute evidence which can be relied upon to determine the controversy. It is on the basis of such acceptable evidence, that final conclusions can be drawn to implicate the accused. That stage has not yet arisen. At the present juncture, the Magistrate was required to examine the materials collected by the investigating agencies, 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 ....
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....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 prope....
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....f the Learned Counsel for the Petitioners, I am summarizing hereunder, the factual aspects highlighted by the Learned Counsel for the Petitioner during the course of hearing: Firstly, it was submitted, that the inference drawn by the Magistrate to the effect, that there was no outsider other than Dr. Rajesh Talwar, Dr. Nupur Talwar, Aarushi Talwar and Hemraj in house No. L-32, Jalvayu Vihar, Sector 25, Noida, on the fateful day, is erroneous. It was submitted, that the said inference was drawn under the belief, that there was no forceful entry into the premises in question. To canvass the point, Learned Counsel drew the attention of this Court to the site plan of the flat under reference, which had been prepared by the U.P. Police (during the course of investigation by the U.P. Police), and compared the same with, 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....
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....ting, that the blood found on the pillow cover was of human origin. It was the vehement contention of the Learned Counsel for the Petitioner, that Krishna Thadarai could not have been given a clean chit, when the blood of Hemraj was found on his pillow cover. It is necessary to record, that a similar submission made before the High Court was turned down by the High Court, on the basis of a letter dated 24.3.2011 (even though the same was not a part of the charge papers). It was submitted, that the aforesaid letter could not have been taken into consideration while examining the veracity of the inferences drawn by the Magistrate. In order to support the instant contention, it was also vehemently submitted, that during the course of investigation, neither the U.P. Police nor the CBI, found blood of Hemraj on the clothes of either Dr. Rajesh Talwar or Dr. Nupur 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 ....
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....hi Talwar. The murderer, according to Learned Counsel, was an outsider. and it was the responsibility of the CBI to determine the identity of such person(s) whose footwear matched the footprints found in the room of the Aarushi Talwar. Lack of focused investigation in the instant matter, according to the Learned Counsel for the Petitioners, had resulted in a gross error at the hands of the Magistrate, who has unfairly summoned Dr. Rajesh Talwar and Dr. Nupur Talwar as the accused, rather than the actual culprit(s). Ninthly, Learned Counsel for the Petitioner also referred to the post mortem report of Aarushi Talwar dated 16.5.2008, and in conjunction therewith the statement of Dr. Sunil Kumar Dhore dated 18.7.2008, the report of the High Level Eight Member Expert Body dated 9.9.2008 (of which Dr. Sunil Kumar Dhore was a member), and the further statements of Dr. Sunil Kumar Dhore dated 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 w....
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....agistrate ignored to take into consideration, the fact that the clothes of Dr. Rajesh Talwar were found only with the blood of Aarushi Talwar. But it was noticed, that there was no blood of Aarushi Talwar on the clothes of Dr. Nupur Talwar. This fact is also erroneous because the blood of Aarushi Talwar was actually found on the clothes of Dr. Nupur Talwar also. According to Learned Counsel, the discovery of blood of Aarushi Talwar on the clothes of her parents was natural. What is important, according to Learned Counsel, is the absence of blood of Hemraj, on the clothes of the accused. It was submitted, that the prosecution had never denied, that the blood of Hemraj was not found on the clothes of either Dr. Rajesh Talwar or Dr. Nupur Talwar. This factual position, for the same reasons as have been indicated at serial No. fourthly above establishes the innocence of the accused in the matter. 16. Just as in 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 Petition....
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....Learned Counsel for the Petitioner, I shall now proceed to determine the validity of the order passed by the Magistrate on 9.2.2011, as also, the legitimacy of the defences raised by the Learned Counsel for the Petitioner. Although it would seem, that there would be a common answer to the proposition canvassed, I am of the view, after having heard Learned Counsel for the rival parties, that the issue canvassed ought to compartmentalized under two heads. Firstly, I shall examine the validity of the order dated 9.2.2011, and thereafter, I will deal with the substance of the defences raised at the hands of the Petitioner. That is how the matter is being dealt with in the following paragraphs. 18. The basis and parameters of issuing process, have been provided for in Section 204 of the Code of Criminal Procedure. Section 204 aforementioned is extracted hereunder: 204. Issue of process - (1) If in the opinion 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 war....
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....rom his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction. The learned Judges in some of these cases have been at pains to observe that an enquiry Under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in Sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath 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. v. State of Ka....
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....xamine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case should be proceeded with. (Emphasis is mine) The same issue was examined by this Court in Jagdish Ram v. State of Rajasthan and Anr. (2004) 4 SCC 432, wherein this Court held as under: (10) The contention urged is that though the trial court was directed to consider the entire material on record including the final report before deciding whether the process should be issued against the Appellant or not, yet the entire material was not considered. From perusal of order passed by the Magistrate it cannot be said that the entire material was not taken into consideration. The order passed by the Magistrate taking cognizance is a well-written order. The order not only refers to the witnesses recorded by the Magistrate Under Sections 200 and 202 of the Code but also sets out with clarity the principles required to be kept in mind at the stage of taking 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 notwithstan....
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....e matter proceeds to the next stage, all the earlier conclusions will stand effaced, and will have to be redrawn, in accordance with law. 19. Rolled along with the contention in hand, it was the submission of Learned Counsel representing the Petitioner, that if the defences raised by the Petitioner are taken into consideration, the entire case set up by the prosecution would fall. I shall now advert to the defences raised on behalf of the Petitioner. All the defences raised on behalf of the Petitioner have already been summarized above. Based on the said defences it was sought to be canvassed, that the Magistrate (while passing the order dated 9.2.2011) had taken into consideration some facts incorrectly (while the factual position was otherwise), and certain vital facts were overlooked. On the subject under reference, it would first be appropriate to examine the settled legal position. In this behalf reference 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: (7) Taking the first ground, it seems to us clear from the entire scheme of Ch. XVI of the Code....
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....sarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry Under Section 202 can in no sense be characterized as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry. It is true that there is no direct evidence in the case before us that the two persons who were examined as court witnesses were so examined at the instance of Respondent No. 1 but from the fact that they were persons who were alleged to have been the associates of Respondent No. 1 in the first information report lodged by Panchanan Roy and who were alleged to have been arrested on the spot by some of the local people, they would not have been summoned by the Magistrate unless suggestion 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 Magis....
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.... after taking cognizance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the court may consider it appropriate to send the complaint to the police for investigation Under Section 156(3) of the Code of Criminal Procedure. We can conceive of many other situations in which a Magistrate may not take cognizance at all, for instance, a case where he finds that the complaint is not made by the person who in law can lodge the complaint, or that the complaint is not entertainable by that court, or that cognizance of the offence alleged to have been committed cannot be taken without the sanction of the competent authority, etc. These are cases where the Magistrate will refuse to take cognizance and return the complaint to the complainant. But if he does not do so and proceeds to examine the complainant and such other evidence as the complainant may produce before 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 o....
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....the Petitioner were merely conjectural. Each of the defences was contested and controverted, on the basis of material on the file. In this case it cannot be said that the defences raised were unassailable and also not controvertible. As already noticed above, I do not wish to engage myself in the instant disputed factual controversy, based on assertions and denials. The factual position is yet to be established on the basis of acceptable evidence. All that needs to be observed at the present juncture is, that it was not necessary for the Magistrate to take into consideration all possible defences, which could have been raised by the Petitioner, at the stage of issuing process. Defences as are suggested by the Learned Counsel for the Petitioner, which were based on factual inferences, certainly ought not to have been taken into consideration. Thus viewed, I find no merit in the instant contention advanced at the hands of the Learned Counsel for the Petitioner. The instant determination of mine, should not be treated as 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....
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....lusions recorded hereinabove, while making a reference to past precedent, I have concluded, that it is not essential for the concerned Magistrate to record reasons or to pass a speaking order demonstrating the basis of the satisfaction, leading to issuance of process. Despite the same, the Magistrate while issuing process vide order dated 9.2.2011, had passed a detailed reasoned order. The order brings out the basis of the Magistrate's satisfaction. The aforesaid order dated 9.2.2011 came to be assailed by the Petitioner before the High Court of judicature at Allahabad through Criminal Revision Petition No. 1127 of 2011. The High Court having concluded, that the satisfaction of the Magistrate was well found, dismissed the Revision Petition vide an order dated 18.3.2011. The High Court expressly affirmed that the order dated 9.2.2011 had been passed on the basis of record available before the High Court, and on the basis of the Magistrate's satisfaction, that process deserved to be issued. The Petitioner approached this Court by filing Special Leave Petition (Criminal) No. 2982 of 2011 (renumbered as Criminal Appeal No. 16 of 2011). While dismissing the aforesaid Criminal Ap....
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....n 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 expeditiously held. 29. The appeal is accordingly disposed of. (Emphasis is mine) Unfortunately, while addressing submissions during the course of hearing no reference whatsoever was made either to the order passed by....
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....the subsequent paragraphs which have been extracted hereinabove. As of now, I would only seriously caution the Petitioner from such behaviour in future. After all, frivolous litigation takes up a large chunk of precious court time. While the state of mind of the accused can be understood, I shall conclude by suggesting, that the accused should henceforth abide by the advice tendered to her, by Learned Counsel representing her. For, any uncalled or frivolous proceedings initiated by the Petitioner hereinafter, may evoke exemplary costs. 23. As a matter of caution I direct the Magistrate, not to be influenced by any observations made by the High Court or by this Court, while dealing with the order dated 9.2.2011, specially insofar as the factual parameters are concerned. 24. Dismissed. ORDER PER A.K. Patnaik, J. 1. I have carefully read the order of my learned brother Khehar, J. and I agree with his conclusion that this Review Petition will have to be dismissed, but I would like to give my own reasons for this conclusion. 2. As the facts have been dealt with in detail in the order of my learned brother, I have not felt the necessity of reiterating those facts in my ....
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....ht or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. It is clear from Sub-section (1) of Section 204, Code of Criminal Procedure. that the Magistrate taking cognizance of an offence shall issue the process against a person if in his opinion there is sufficient ground for proceeding against him. 5. The standard of scrutiny of the evidence which the Magistrate has to adopt for deciding whether or not to issue process Under Section 204 Code of Criminal Procedure. in a case exclusively triable by the Sessions Court has been laid down by this Court in Kewal Krishan v. Suraj Bhan and Anr. : 1980 (Supp) SCC 499 this Court thus: At the stage of Sections 203 and 204, Code of Criminal Procedure in a case exclusively triable by the Court of Session, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry Under Sections 200 and 202, Code of Criminal Procedure, there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is "sufficient ....
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....n. The relevant materials on which the Petitioner relies upon have been discussed in the order of my learned Brother at length. Mr. Siddharth Luthra, learned senior counsel for the CBI, on the other hand, submitted that the entire case diary including all the materials (statements recorded Under Section 161 Code of Criminal Procedure., the post mortem and scientific reports and material objects) collected in the course of investigation were placed before the Magistrate and, therefore, the argument of Mr. Salve that the Magistrate has not looked into all the materials collected during investigation is misconceived. 7. By writing a long order dated 09.02.2011 and not referring to some of the relevant materials on which the Petitioner relies upon, the Magistrate has exposed herself to the criticism of Learned Counsel for the Petitioner that she had applied her mind only to the materials referred to in her order and not to other relevant materials collected in course of investigation. Sub-section (1) of Section 204, Code of Criminal Procedure. quoted above itself does not impose a legal requirement on the Magistrate to record reasons in support of the order to issue a process and in....
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....oner and her husband Under Section 204 Code of Criminal Procedure was not a plausible view on the materials collected in course of investigation 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. 9. Mr. Harish Salve, however, cited the judgment of this Court in State of Karnataka v. L. Muniswamy and Ors. (1977) 2 SCC 699 in which the High Court in exercise of its power Under Section 482 Code of Criminal Procedure. has quashed the proceedings before the Sessions Court on the ground of insufficiency of evidence and this Court agreed with the view of the High Court and dismissed the appeal. The decision of this Court in the case of Stat....