Magistrate taking cognisance is a reasoned order

The doctor couple, Rajesh Talwar and Nupur, suffered a setback on Friday, when the Supreme Court directed them to face trial in the case of murder of their teenaged daughter Aarushi in May 2008.

A Bench of Justices A.K. Ganguly and J.S. Khehar dismissed an appeal filed by Dr. Nupur Talwar against an order of the Allahabad High Court, which upheld the trial court taking cognisance of the case.

While senior counsel Ranjit Kumar said the couple were innocent and that the Central Bureau of Investigation had filed a closure report to that effect, Additional Solicitor-General Harin Raval, appearing for the CBI, said the Talwars alone were responsible for the murder of Aarushi (14), and the trial should proceed to its logical end.

The only daughter of the Talwars, the girl was found dead with her throat slit in the family's Noida residence on the outskirts of Delhi on May 16, 2008. The very next day, the body of their domestic help, Hemraj, was found on the terrace.

Refusing to accept the closure report filed by the CBI in December 2010, the trial court took cognisance of the case. Aggrieved, Dr. Nupur Talwar moved the High Court, which on March 18, 2011 dismissed her plea. The next day the Supreme Court stayed all further proceedings.

Dr. Rajesh Talwar questioned the summons issued to him contending that since he had already been granted bail, he could not be called. The Bench of Justice Ganguly will take up this issue on January 9.

It may be recalled that when there was no progress in the investigation, it was The Hindu which first broke the news that Aarushi's DNA samples had been tampered with.

The Bench, in its order on Friday, said that once the trial court took cognisance of an offence, the higher judiciary must sparingly interfere with such orders. “We feel constrained to observe that the higher judiciary should exercise the utmost restraint before interfering in the magistrate's order. In this case, the magistrate has applied his mind and passed a reasoned order for taking cognisance.”

On the contention that since the CBI had already filed a closure report saying the Talwars were innocent, the Bench, citing a catena of decisions, held that the magistrate was not bound by it. “The magistrate can apply his mind to find a prima facie case against the accused. The correctness or otherwise of [the magistrate] taking cognisance should be sparingly interfered with unless it is perverse.”

Further, the Bench said, the mysterious death raised public uproar but the court had to steer clear of the public sentiments.

The investigation was initially carried out by the Uttar Pradesh police who arrested Dr. Rajesh Talwar on May 23, 2008. The probe was handed over to the CBI on May 29, 2008 and he was granted bail by the Ghaziabad trial court on July 11, 2008. It, however, rejected the CBI closure report, saying there was enough prima facie material in the report to put the couple on trial for their alleged involvement in the murders and issued summons to them to face trial.

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