Criminal Court has no power of review judgment after passing it -SC

26. There is no power of review with the Criminal Court after judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 code of Criminal Procedure. is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. (See: Hari Singh Mann v. Harbhajan Singh Bajwa and Ors. AIR 2001 SC 43; and Chhanni v. State of U.P., AIR 2006 SC 3051)

Moreover, the prohibition contained in Section 362 code of Criminal Procedure. is absolute; after the judgment is signed, even the High Court in exercise of its inherent power under Section 482 code of Criminal Procedure. has no authority or jurisdiction to alter/review the same. (See: Moti Lal v. State of M.P., AIR 1994 SC 1544; Hari Singh Mann (supra); and State of Kerala v. M.M. Manikantan Nair, AIR 2001 SC 2145).

27. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 code of Criminal Procedure. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. (Vide: Chitawan and Ors. v. Mahboob Ilahi, 1970 Cri.L.J. 378; Deepak Thanwardas Balwani v. State of Maharashtra and Anr. 1985 Cri.L.J. 23; Habu v. State of Rajasthan, AIR 1987 Raj. 83 (F.B.); Swarth Mahto and Anr. v. Dharmdeo Narain Singh, AIR 1972 SC 1300; Makkapati Nagaswara Sastri v. S.S. Satyanarayan, AIR 1981 SC 1156; Asit Kumar Kar v. State of West Bengal and Ors., (2009) 2 SCC 703; and Vishnu Agarwal v. State of U.P. and Anr., AIR 2011 SC 1232).

28. This Court by virtue of Article 137 of the Constitution has been invested with an express power to review any judgment in Criminal Law and while no such power has been conferred on the High Court, inherent power of the court cannot be exercised for doing that which is specifically prohibited by the code itself. (Vide: State Represented by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran and Ors., AIR 2009 SC 46).

29. In Smt. Sooraj Devi v. Pyare Lal and Anr., AIR 1981 SC 736, this Court held that the prohibition in Section 362 code of Criminal Procedure. against the Court altering or reviewing its judgment, is subject to what is ‘otherwise provided by this code or by any other law for the time being in force’. Those words, however, refer to those provisions only where the Court has been expressly authorised by the code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 code of Criminal Procedure. and, therefore, the attempt to invoke that power can be of no avail.

30. Thus, the law on the issue can be summarised to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law.

Source: State of Punjab Versus Davinder Pal Singh Bhullar and Others

Only National Commission(Consumer)has power to review its ex-prate orders.

  • On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex prate orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
  • 37. The legislature chose to give the National Commission power to review its ex prate orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly. Continue reading

Only High Court can alter or review its judgment before it is signed in criminal matter

There is no power of review with the criminal Court after judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 Code of criminal Procedure. is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. (See: Hari Singh Mann v. Harbhajan Singh Bajwa and Ors. AIR 2001 SC 43; and Chhanni v. State of U.P., AIR 2006 SC 3051)

Moreover, the prohibition contained in Section 362 Code of criminal Procedure. is absolute; after the judgment is signed, even the High Court in exercise of its inherent power under Section 482 Code of criminal Procedure. has no authority or jurisdiction to alter/review the same. (See: Moti Lal v. State of M.P., AIR 1994 SC 1544; Hari Singh Mann (supra); and State of Kerala v. M.M. Manikantan Nair, AIR 2001 SC 2145).

 If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Code of criminal Procedure. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. (Vide: Chitawan and Ors. v. Mahboob Ilahi, 1970 Cri.L.J. 378; Deepak Thanwardas Balwani v. State of Maharashtra and Anr. 1985 Cri.L.J. 23; Habu v. State of Rajasthan, AIR 1987 Raj. 83 (F.B.); Swarth Mahto and Anr. v. Dharmdeo Narain Singh, AIR 1972 SC 1300; Makkapati Nagaswara Sastri v. S.S. Satyanarayan, AIR 1981 SC 1156; Asit Kumar Kar v. State of West Bengal and Ors., (2009) 2 SCC 703; and Vishnu Agarwal v. State of U.P. and Anr., AIR 2011 SC 1232).

In Smt. Sooraj Devi v. Pyare Lal and Anr., AIR 1981 SC 736, this Court held that the prohibition in Section 362 Code of criminal Procedure. against the Court altering or reviewing its judgment, is subject to what is ‘otherwise provided by this Code or by any other law for the time being in force’. Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 Code of criminal Procedure. and, therefore, the attempt to invoke that power can be of no avail.

Thus, the law on the issue can be summarised to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law.

Sivakami & Ors. Vs. State of Tamil Nadu & Ors.[ALL SC 2018 MARCH]

KEYWORDS:- DISTINCTION BETWEEN APPEAL AND REVIEW-

c

DATE:- March 12, 2018

The scope of the appellate powers and the review powers are well defined. The power of review under Order 47 Rule 1 of the Code of Civil Procedure, 1908 is very limited and it may be exercised only if there is a mistake or an error apparent on the face of the record. The power of review is not to be confused with the appellate power. The review petition/application cannot be decided like a regular intra court appeal. On the other hand, the scope of appeal is much wider wherein all the issues raised by the parties are open for examination by the Appellate Court

ACTS:-Land Acquisition Act, 1894

SUPREME COURT OF INDIA

Sivakami & Ors. Vs. State of Tamil Nadu & Ors.

[Civil Appeal Nos. 2749-2750/2018 arising out of S.L.P. (C) Nos.29397-29398 of 2013]

Abhay Manohar Sapre, J.

1. Leave granted.

2. These appeals are directed against the final judgment and order dated 13.03.2013 passed by the High Court of Judicature at Madras in Review Application No.77 of 2012 in W.A. No.868 of 2011 whereby the Division Bench of the High Court dismissed the review application filed by the appellants herein as not maintainable and also on merits and order dated 02.09.2008 in WA No.868 of 2 2001 whereby the Division Bench set aside the order dated 06.01.1997 passed by the Single Judge of the High Court which was in favour of the appellants herein.

3. These appeals involve a short point. Few facts need mention infra to appreciate the point involved in the appeals.

4. The appellants herein are the writ petitioners before the High Court in the writ proceedings out of which these appeals arise.

5. The appellants claim to be the owners of the land in question admeasuring around 1.52 acres in Survey No.142/1A situated at Ganapathi Village, Coimbatore Taluk.

6. The land in question was the subject matter of land acquisition proceedings under the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) in the year 1985 at the instance of State of Tamil Nadu, which had issued notifications under Sections 4 and 6 of the Act for its acquisition. The appellants, felt aggrieved of the acquisition of their land in question, filed Writ Petition No.5220 of 1987 in the High Court at Madras and questioned therein the legality and correctness of the entire acquisition proceedings including the orders in G.O. Ms. No.1119, Social Welfare Department dated 15.05.1985 and G.O.Ms. No.1536, Social Welfare Department dated 18.06.1986.

7. The challenge to the acquisition proceedings was on several grounds as is clear from the grounds taken by the appellants (writ petitioners) in the writ petition and the SLP.

8. The writ petition was contested by the State wherein it defended the acquisition proceedings as being legal, proper and in conformity with the provisions of the Act.

9. The Single Judge, by order dated 06.01.1997, allowed the appellants’ writ petition and quashed G.O.Ms. No.1119 dated 15.05.1985 and G.O. Ms. No. 1536 dated 18.06.1986.

10. The State felt aggrieved and filed intra court appeal before the Division Bench out of which these appeals arise. By impugned order, the Division Bench allowed the State’s appeal and while setting aside the order of the Single Judge dismissed the appellants’ writ petition. In other words, the acquisition proceedings were upheld by the Division Bench as being legal and proper. Against the said order, review application was filed by the appellants herein but it was dismissed. It is against these two orders of the Division Bench, the writ petitioners felt aggrieved and filed these appeals by way of special leave in this Court.

11. Heard Mr. A Mariarputham, learned senior counsel for the appellants and Mr. Thomas P. Joseph, learned senior counsel, Mr. B. Balaji and Mr. K.V. Vijaya Kumar, learned counsel for the respondents.

12. Having heard the learned counsel for the parties and on perusal of the record of the case, we 5 are inclined to allow the appeals and while setting aside the impugned orders, remand the case to the Division Bench for deciding the writ petition filed by the appellants afresh on merits.

13. In our considered opinion, the reasons to remand the case to the Division Bench are more than one, which are set out hereinbelow.

14. First, the Division Bench in Paras 4 and 5 of its main order dated 02.09.2008 in W.A.No.868 of 2001 having rightly observed that the Single Judge neither discussed any issue nor gave his reasoning and nor even dealt with any of the grounds raised by the parties in support of their case and yet allowed the writ petition and quashed the acquisition proceedings erred in not dealing with any of the issues arising in the case, It is apposite to reproduce paras 4 and 5 hereinbelow:

“4. From the impugned order passed by the learned Single Judge, it would be evident that the learned Single Judge, without discussing the relevant facts of the case pertaining to the writ petitioners (respondents 1 to 4 in this writ appeal) and without analyzing the relevant proposition of law laid down by a Single Judge of this Court in the decision reported in 1994 Writ L.R. 764 (Seethalakshmi/Ramakrishnanda vs. Special Tahsildear (LA) II, Bharathiyar University, Coimbatore and another) and without considering the question as to whether the case of the writ petitioners, was similar to the one reported in 1994 Writ L.R. 764 (supra), merely allowed the writ petition based on the submission made by the learned counsel appearing for the respective parties.

5. In the facts and circumstances, as contended by the learned counsel appearing for the appellant-State, the impugned order passed by the learned Single Judge, can be held to be not a reasoned order, erroneous and not sustainable in the eye of law. We accordingly set aside the impugned order passed by the learned Single Judge.”

15. Second, in the light of afore-mentioned findings, the Division Bench should have either dealt with all the issues raised by the parties and given its own reasoning on all such issues while deciding the appeal or remanded the case to the writ Court (Single Judge) for deciding the appellants’ writ petition afresh on merits and to pass a reasoned order dealing with all the grounds raised by the parties in support of their respective contentions.

16. The Division Bench, however, simply allowed the State’s appeal and, in consequence, dismissed the writ petition and upheld the acquisition proceedings as being legal and proper and that too without assigning any reason in support thereof.

17. Third, it was  for the Division Bench to deal with all the grounds raised by the parties while reversing the order of writ Court and to record their own findings by assigning reasons in support of the conclusion. It was, however, not done.

18. In our considered opinion, this appears to be a case where the Single Judge (writ Court) allowed the appellants’ writ petition without assigning any reason and without dealing with any of the grounds raised by the parties except placing reliance on one decision for allowing the writ petition whereas the Division Bench allowed the State’s appeal without dealing with any of the issues raised by the parties in the writ petition and without assigning any reason as to why the writ petition deserved to be dismissed.

19. In our view, what the Division Bench was required to do while deciding the appeal, it was done by the Division Bench while deciding the review application. We find that the order in review application runs into 10 pages whereas the order in appeal runs into 6 pages. We cannot countenance such approach of the Division Bench while deciding the appeal and the review application.

20. The scope of the appellate powers and the review powers are well defined. The power of review under Order 47 Rule 1 of the Code of Civil Procedure, 1908 is very limited and it may be exercised only if there is a mistake or an error apparent on the face of the record. The power of review is not to be confused with the appellate power. The review petition/application cannot be decided like a regular intra court appeal. On the other hand, the scope of appeal is much wider wherein all the issues raised by the parties are open for examination by the Appellate Court

21. A fortiori, what was not decided in appeal by the Division Bench could not be decided by the Division Bench while deciding the review application. It is for this reason, we are also constrained to set aside the review order.

22. In the light of foregoing discussion, we are of the view that the orders passed by the High Court, i.e., (writ Court and Division Bench) are bad in law and cannot be legally sustained for want of any reason, discussion and finding on any of the grounds/issues raised by the parties in support of their respective contentions.

23. Since the matter is pending for the last three decades, we consider it just and proper to remand the case (writ petition) to the Division Bench for its decision afresh on merits in accordance with law instead of remanding it to the Writ Court.

24. In view of the foregoing discussion, the appeals succeed and are accordingly allowed. The impugned orders are set aside and the writ petition is remanded to the Division Bench for its decision afresh on merits in accordance with law.

25. We, however, make it clear that having formed an opinion to remand the case to the Division Bench, we did not apply our mind to the merits of the controversy. We, therefore, request the High Court (Division Bench) to decide the writ petition in accordance with law preferably within six months uninfluenced by any of our observations.

J. [R.K. AGRAWAL]

J. [ABHAY MANOHAR SAPRE]

New Delhi;

March 12, 2018

P.N. Eswara Iyer Vs The Registrar, Supreme Court of India [ALL SC 1980 FEBRUARY]

KEYWORDS:- Power of review- ORAL HEARING IS NOT REQUIRED IN EVERY STAGE-

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DATE:-01-02-1980

  • An oral hearing is mandatory in all classes of cases and at every stage of every case is a proposition to which we find ourselves unable to accede
  • A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.
  • In many jurisdictions oral submissions and public hearings are disallowed in like circumstances. In England and America where orality in advocacy has been apotheosised, certain extended stages of ‘hearing’ in the superior courts have been slimmed or removed. Even disposal of petitions for leave in judicial conference, without a Bench hearing has been in vogue.

AIR 1980 SC 808 : (1980) 2 SCR 889 : (1980) 4 SCC 680

(SUPREME COURT OF INDIA)

P.N. Eswara Iyer Appellant
Versus
The Registrar, Supreme Court of India Respondent

(Before : V. R. Krishna Iyer, S. Murtaza Fazl Ali, D. A. Desai, R. S. Pathak And A. D. Koshal, JJ.)

Writ Petns. Nos. 151, 187, 238, 458, 1038, 1069 and 1277 of 1979, Decided on : 01-02-1980.

Counsel for the Parties:

Writ Petn. No. 151 of 1979:

Mr. R. K. Garg, Sr. Advocate (M/s. S. Balakrishnan and M. K. D. Namboodiri, Advocates with him), for Petitioner; Mr. Soli J. Sorabjee, Sol. General (M/s. E. C. Agarwala, R. N. Sachthey and Miss A. Subhashini Advocates with him), for RespondentPetitioner in person in W. P. No. 1038 of 1979 Writ Petn. No. 187 of 1979

Mr. P. R. Mridul, Sr. Advocate (Mr. H. K. Puri, Advocate with him), for Petitioner

Mr. A. K. Gupta, Vivek Seth (Miss Madhu Moolchandani and O. P. Rana, Advocates with him) (for No.1) and Mr. Soli J. Sorabjee, Sol. General (M/s. E. C. Agarwala, R. N. Sachthey and Miss A. Subhashini, Advocates with him) (for No.2), for Respondents

Mr. A. K. Ganguli, Sr. Advocate (Mr. D. P. Mukherjee, Advocate with him), in (in W. P. No. 238/79) and Mr. A. K. Ganguli, Sr. Advocate (Mr. O. P. Rana, Advocate with him) (in W. P. No. 458 of 1979), for Petitioners

Mr. Soli J. Sorabjee, Sol. General (Mr. R. N. Sachthey and Miss A. Subhashini, Advocates with him), for Respondents in W. P. 458/79 and W. P. 238/79

Mr. G. L. Sanghi, Sr. Advocate (W.P. No. 1277) (Miss Lily Thomas, Advocate with him), for Petitioner in W. P. Nos. 1038, 1069 and 1277 of 1979

Dr. L. M. Singhvi, Sr. Advocate (Mr. Sardar Bahadur Saharya, Advocate with him), for Intervener (Bar Association, Supreme Court).

Judgement

Krishna Iyer, J—Tersely expressed, this bunch of cases challenges the vires of a recent amendment made by the Supreme Court under Article 145 in the matter of review petitions whereby the judges will decide in circulation, without the aid of oral submissions whether there is merit in the motion and, in their discretion, choose to hear further arguments in Court.

2. Is orality in advocacy – that genius of Indo-Anglian Justice – an inalienable and ubiquitous presence in the court process, or does it ambit of abbreviated appearance and – more pertinent to the point here – discretionary eclipse, at least when it has been preceded by a sufficient oral session ? Secondly, is hearing on Bench in public, in contrast to considering the matter in conferential circulation, the only hall-mark of judicial justice, absent which the proceeding always violates the norms of equality implicit in Article 14, the limits of ‘reasonableness’ bedrocked in Article 19, the procedural fairness rooted in Article 21? And, finally, by resort to operational secrecy, does rationing or burking of oral hearing travesty the values of our Justice System?

3. These basic problems of the forensic process, of pervasive impact and seminal import, fall for consideration in these writ petitions under Article 32 of the Constitution. The charge is that the novel expedient of substitution of oral arguments by written submissions and orders in circulation dispensing with public sitting, save where – and that may be rare – the judges in their discretion choose to hear arguments in court, is a dangerous deviance from the fundamentals of the Judicial Process. Apprehending may be, the futuristic repercussions of a decision on these question, even though now restricted to review petitions, in other fields of ‘hearing’ at a later time, the Supreme Court Bar Association has intervened and argued to impugn the amended rule through its President, Dr. L. M. Singhvi, in supplementation of parties submissions. We have allowed even other advocates to make brief contributions, because, when this Court considers issues of moment and pronounces thereon, the law so declared binds all, and it is ensouled in democratic propriety that the voice of reason and instruction be received from every permissible source in the nation, if processed according to cursus curiae. This participative principle lends people’s legitimation to the judicial process and strengthens the credentials of the rule of law.

4. The composite question, which setles the fate of these petitions, emerges this way. Article 137 provides for review of judgments or orders of this Court, subject to the provisions of any law made by Parliament or any rule made under Article 145. We are here concerned with a rule made by this Court. The rule-making power under Art. 145 is geared to ‘regulating generally the practice and procedure of the Court’. In particular, Article 145 (1) (b) and (e) authorise such ‘judicial’ legislation in the shape of rules as to “the procedure for hearing appeals and other matters pertaining to appeal” and also “as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review”. Such rules, like any other law, are subject to the imperatives of Part III and become non est if violative of the proscriptions and prescriptions of the Constitution vide Premchand Garg’s case (1963) 1 Suppl. SCR 885. Even the Supreme Court, in the scheme of our Republic, is no imperium in imperio.

5. The substantive power of review and the procedure for its exercise are essential for any judicial system if unwitting injustice is to be obviated to the extent pragmatically possible, without being blinded by any claim to impervious infallibility in the first judgment. Even judges, more than other mortals, to correct injustice if the error is discovered within working limits. Thus, the root principle of judicial review is profound. Judge Learned Hand commended to the judges the great rule of humility contained in the oft-repeated words of Cromwell:

“I beseech ye in the bowels of Christ think that ye may be mistaken” said Oliver Cromwell just before the battle of Dunbar. These words Judge Hand said he would like to have written “over the portals of every church, over court-house and at every cross-road in the nation.”[1]

                                                                               (emphasis added)

Such is the high-minded tolerance with which this Court re-examines its own orders to eliminate the happenstance of injustice unhampered by judicial hubris.

6. This Court had framed rules for review, right from the start, but a certain amendment, recently made, has curtailed oral hearing in court as a matter of course and this measure of discretionary truncation is attacked as fundamentally offensive to judicial justice of which this Court is the highest custodian. “If the salt hath lost his savour, wherewith shall it be salted?” Surely, this Court’s procedure should be the paradigm, nothing short of it. So, the question is whether it is so heathen to make oral hearing discretionary at the review stage and at the Supreme Court level that the rule can be condemned as constitutionally apostate? Another fatal infirmity was also pointed out as the arguments proceeded, viz., that a hostile discrimination had been made by Rule 2 (1) against litigants who moved for review in criminal proceedings as against those in the civil jurisdiction. We will relegate it for consideration to a later stage.

7. The relevant original rules ran thus:

2. (1) An application for review shall be by a petition, and shall be filed within thirty days from the date of the judgment or order sought to be reviewed. It shall set out clearly the grounds for review and shall, unless otherwise ordered by the Court, be accompanied by a certificate from the Advocate who appeared at the hearing of the case for the party seeking review, or where the party appeared in person, from any advocate of this Court, that it is supported by proper grounds. The certificate shall be in the form of a reasoned opinion.

(2) No application for review in a civil proceeding shall be entertained unless the party seeking review furnishes to the Registrar of this Court at the time of filing the petition for review, cash security to the extent of two thousand rupees for the costs of the opposite party.

3. An application for review shall be posted before the Court for preliminary hearing and order as to the issue of notice to the opposite party. Upon such hearing, the Court may either dismiss the petition or direct a notice to the opposite party and adjourn the hearing for such party to be heard. A petition for review shall as far as practicable be posted before the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed.

4. Where on application for review the Court reverses or modifies its former decision in the case on the ground of mistake of law or fact, the Court may, if it thinks fit in the interests of justice to do so, direct the refund to the petitioner of the court-fee paid on the application in whole or in part, as it may think fit.

The corresponding amended rules read thus:

2 (1) An application for review shall be by a petition, and shall be filed within thirty days from the date of the judgment or order sought to be reviewed. It shall set out clearly the grounds for review[2].

(2) No change.

3. [3][Unless otherwise ordered by the Court] an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed.

4. No change. 5. Where an application for review of any judgment or order has been made and disposed of, no further application for review shall be entertained in the same matter. (newly inserted)

The vital difference, vis a vis the first point, is that now oral hearing is no longer a right of the petitioner but facultative with the Bench and the ‘circulatory’ system replaces the public hearing method. A brief study of the anatomy of the rules will highlight the points urged.

8. Dissecting the rules and comparing their directives we find that unchecked review has never been the rule. It must be supported by proper grounds. Otherwise, every disappointed litigant may avenge his defeat by a routine review adventure and thus obstruct the disposal of the ‘virgin’ dockets waiting in the long queue for preliminary screening or careful final hearing. It is perfectly reasonable to insist that the existence of proper grounds for review should be responsibly vouched for before the further time of the court is taken. So, the original rule required a certificate to that effect by the advocate who earlier had appeared in the case. Here, counsel functioned as an officer of the Court and, under the mandate of the old Rule 2 (1) granted or refused a certificate of review-worthiness. If it was so certified, then a preliminary oral hearing followed. After such oral argument the court issued notice to the other side or dismissed the petition. The system was fair enough if the certification process worked well and real errors and apparent mistakes marring the original judgment were the restricted grounds for review. But as it turned out, laxity in certification and promiscuity in filing review applications crowded the court with ‘unwanted review babies’. The docket crisis which quaked the calendar’ deepened, to the detriment of litigative justice to the deserving who awaited their turn for hearing. Even otherwise, frivolous motions for review would ignite the ‘gambling’ element in litigation with the finality of judgments even by the highest court, being left in suspense. If, every vanquished party has a filing at ‘review’ lucky dip and if, perchance, notice were issued in some cases to the opponent the latter – and, or course, the former, – would be put to great expense and anxiety. The very solemnity of finality, so crucial to judicial justice, would be frustrated if such a game were to become popular. And it did become popular, as experience showed. The inflow of meritless review petitions, which were heard and dismissed, interrupted the stream of public justice. This Court in Sow Chandra Kanta v. Shaik Habib (1975) 3 SCR 933 was faced with this problem and, while dismissing the review petition, observed how the opportunity for correction of grave errors was being perverted into the purchase of a fresh appeal to the same court against its own appellate or other judgment on the same grounds which were earlier rejected. This Court said:(Ibid Pp. 933-934)

A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and overruled argument, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel’s certificate which should not be a routine affair or a habitual step. It is neither fairness to the court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a sample of rulings on points earlier put forward. May be, as counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality. These observations were symptomatic of the ‘review syndrome’ which, therefore, demanded remedying. And the amended rule purposefully incarnated under such auspices to remove the evil of reckless reviews by the introduction of preliminary judicial screening in circulation, replacing counsel’s certification with court’s scanning exercise – an added but necessitous judicial burden. If the review petition and written submissions (for which provision was made) convinced the Court, prima facie, that material error had marred the justice or legality of the earlier judgment or order the case would be posted for oral hearing in court. Otherwise, not, ‘Certworthiness’ – an American judicial shorthand for ‘certificate-worthiness’ – was, by this amendment, shifted from counsel to court. This, in pith and substance, is the rationale of the amended rule.

9. Counsel, at one stage, asked whether there was back-up empirical research to warrant the assumptions in the amendment, whether facts and figures about the number and nature of wasted ‘reiew’ time of court and a host of other related aspects were available. No such material is before us now. It is fair to confess that the scientific method of undertaking research and study into public problems as prelude to legislation is a ‘consumption devoutly to be wished’ and lamentably lacking in our country; and court management, with special reference to maximisation of judicial time – a matter of great national moment – is a problem the very existence of which is currently beyond the ken of juristic research. Where ‘awareness’ is absent, ad-hocism is inevitable. But here the experiential evidence of the judges who considered and decided on the amended and the inference available from the decisions on review petitions make good the proposition or makes-do for empirical research.

10. Be that as it may, we are satisfied that enough justification exists in the daily experience of this Court to warrant the change the way it has been done. Even so, constitutional canons cannot be contravened even by pragmatic compulsions, Paramountcy is paramountcy and exigency must bow before it. What, then, are the paramount principles of constitutionality violated by the amended rule? Absence of public hearing and oral presentation are the vices identified in counsel’s arguments.

11. Two major submissions were made to invalidate Rule 2 (1). The scuttling of oral presentation and open hearing is subversive of the basic creed that public justice shall be rendered from the public seat, not in secret conclave, that hearing becomes ‘deaf’ if oral impressiveness is inhibited by the circulation process, more congenial to the seclusion of bureaucratic cells, fed on files, than to the audio-visual argumentation heard in the halls of court, which is the insignia of judicial justice. Secrecy and circulation are the negation of judicial procedure. A review is a judicial proceeding and its hearing, to fill the bill, must not run away from the essentials of processual jurisprudence, however allergic some judges may be to the ‘sound system’ which is the heart of our forensics. With allotropic modifications, counsel arguments stressed this recurrent theme.

12. We must make it perfectly plain, right at the outset, that audi alteram partem is a basic value of our judicial system. Hearing the party affected is too deeply embedded in the consciousness of our constitutional order. The question is about the quality content and character of ‘hearing’ in the special ‘review’ situation. Incidentally, we may deal with oral hearing and its importance in the court process, the possibilities of its miniaturisation and, in certain categories, its substitution by written submissions.

13. We agree that public hearing is of paramount significance. Justice, in the Indian Republic, is public; and if judges shun the halls of court, read papers at home, confer in private and issue final fiats without listening to the bar as the representative of the seekers of justice, the rule of law could well darken into an arcane trick and back door diktats issued from ‘robed’ adjudicators stain the escutcheon of justice. We also agree that oral advocacy has a non-fungible importance in the forensic process which the most brilliant brief cannot match and the most alert judge cannot go without. The intellectual jallywork of intricate legal reasoning and impassioned sculpture of delicate factual emphasis may often be beyond the craftsmanship of pen and paper. There is no controversy that disposal by circulation, Secretariat fashion, cannot become a general judicial technique nor silent notings replace Bench-Bar dialogues. We must clarify one point. ‘Circulation’, in the judicial context, merely means, not in court through oral arguments but by discussion at judicial conference. judges, even under the amended rule, must meet, collectively cerebrate and reach conclusions. Movement of files with notings cannot make-do. Otherwise, mutual persuasion, reasoned dissent and joint judgment will be defeated and machinisation of opinion and assertions of views in absentia will deprive judicial noetics of that mental cross-fertilisation essential for a Bench decision. The learned Solicitor General strongly urged that he was at one with counsel opposite on this point. We agree.

14. The key question is different. Does it mean that by receiving written arguments as provided in the new rule, and reading and discussing at the conference table, as distinguished from the ‘robed’ appearance on the Bench and hearing oral submissions, what is perpetrated is so arbitrary, unfair and unreasonable a ‘Pantomime’ as to crescendo into unconstitutionality? This phantasmagroic distortion must be dismissed as too morbid to be regarded seriously – in the matter of review petitions at the Supreme Court level.

15. Let us look at the actuality without being scary. The rule under challenge does not implicate or attract an original hearing at all. It relates to ‘review’ situations. Ex hypothesi, an antecedent judicial hearing and judicial order exist. Indeed, if a full oral hearing on the Bench has already taken place the dangerousness of secret disposals dies out. What is asked for is a review or second look at the first order. Should this second consideration be plenary? Never. The focus must be limited to obvious, serious errors in the first order. Indiscriminate second consideration cannot be purchased by more payment of court-fee. We reject the strange plea one of the advocates put forward that since the petitioner had paid-court-fee for review he had the right to the full panoply or oral hearing ad libitum covering the whole range.

16. Review must be restricted if the hard-pressed judicial process is not to be a wasting disease. There are many ways of limiting its scope, content and modality. The confinement to certain special grounds, as in Order 47, Rule 1, C. P. C., is one way. The requirement of counsel’s reasoned certificate of fitness (Certworthiness) for review is another. Judicial screening to discover the presence, prima facie, of good grounds to hear counsel in oral submission is a third. The first is good and continues. The second was tried and found ineffective and the third is being tried. Legislative policy is experimental as life itself is a trial-and-error adventure. What is shocking about this third alternative? Judges scrutinise – the same judges whohave once heard oral arguments and are familiar with the case – and, if they do not play truant, direct a hearing in court if they find good grounds. If there is ground, oral hearing follows. It is not as if all oral advocacy is altogether shut out. Only if preliminary judicial scrutiny is not able to discern any reason to review is oral exercise inhibited. The court process is not a circus or opera where the audience can clamour for encore. When the system is under the severe stress of escalating case-load, management of Justice Business justifies forbiddance of frivolous reviews by scrutiny in limine on the written brief. Justicing too is in need of engineering.

17. In many jurisdictions oral submissions and public hearings are disallowed in like circumstances. In England and America where orality in advocacy has been apotheosised, certain extended stages of ‘hearing’ in the superior courts have been slimmed or removed. Even disposal of petitions for leave in judicial conference, without a Bench hearing has been in vogue.

18. This Court, as Sri Garg rightly emphasised, has assigned special value to public hearing, and courts are not caves nor cloisters but shirnes of justice accessible for public prayer to all the people. Rulings need not be cited for this basic proposition. But every judicial exercise need not be a public show. When judges meet in conference to discuss it need not be televised on the nation’s network. The right to be heard is of the essence but hearing does not mean more than fair opportunity to present one’s point on a dispute, followed by a fair consideration thereof by fairminded Judges. Let us not romanticise this process nor stretch it to snap it. Presentation can be written or oral, depending on the justice of the situation. Where oral persuasiveness is necessary it is unfair to exclude it and therefore, arbitrary too. But where oral presentation is not that essential, its exclusion is not obnoxious. What is crucial is the guarantee of the application of an instructed intelligent impartial and open mind to the points presented. A blank judge weared by oral aggression is prone to slumber while an alert mind probing the ‘papered’ argument may land on vital aspects. To swear by orality or to swear at manuscript advocacy is as wrong as judicial allergy to arguments in court. Often time, it is the Judge who will ask for oral argument as it aids him much. To be left helpless among ponderous paper books without the oral highlights of counsel, is counter-productive. Extremism fails in law and life.

19. We agree that the normal rule of the judicial process is oral hearing and its elimination an unusual exception. We are now on the vires of a rule relating to review in the highest court. A full-dress hearing, to the abundant accompaniment of public presence and oral submission, is over. It is a second probe. Here written arguments are given. The entire papers are with the Judges. The Judges themselves are the same persons who have heard oral presentation earlier. Moreover, it is a plurality of Judges, not only one. Above all, if prima facie grounds are made out a further oral hearing is directed. Granting basic bona fide in the Judges of the highest court it is impossible to argue that partial foreclosure of oral arguments in court is either unfair or unreasonable or so vicious an invasion of natural justice as to be ostracised from our constitutional jurisprudence. It must be remembered that review is not a second dose of the same arguments once considered and rejected. The rejection might have been wrong but that cannot be helped. Disenting minorities regard the dominant majorities wrong in their judgments but there is no helping it.’

20. It may not be inept to refer to the critical distinction, even where review of fundamental rights proceeding is sought, between an original or virgin hearing and a second look at or review of the order already passed after a full hearing. In Lala Ram’s case, (1967) 2 SCR 14 this Court accented on the essential distinction between an original application for the enforcement of fundamental rights and an application to review the order made therein. It was there observed:(Ibid at page No. 17).

The main purpose of a review petition is not to enforce a fundamental right, but to reopen an order vitiated by an error on the face of the record or for such other reasons. But it is said that the effect of reopening of the earlier order would be to restore of his application to enforce the fundamental right and, therefore, in effect and substance, an application to review such an order is also an application to enforce the fundamental right. It may be that this is a consequence of reopening an order, but the application itself, as we have said, is not to enforce the fundamental right.

21. Is there any nexus between the elimination of oral advocacy and the goal of dispensation of justice ? Counsel urge there is none. We cannot agree. The goal to be attained is maximisation of judicial time and celerity of disposal of review petitions. And, despite the heavier burden thrown on the Judges during the hours outside court sittings by agreeing to read through and discuss the review papers for themselves, there is obvious acceleration of disposal of review petitions without intrusion into court time. Equally clearly, the benches are able to spare more time for hearing cases. To sum up, the advantages of the circulation system linked up with the objects of saving Judge-time in court and prompter despatch of review petitions are obvious. To organise review Benches of the same Judges who first heard the case only to last for a few minutes or a little longer, then to disperse and re-arrange regular Benches, especially when most of the review petitions are repeat performances in futility, is a judicial circus the court can ill afford. The rule is rational, the injury is marginal.

22. The magic of the spoken word, the power of the Socratic process and the instant clarity of the bar-bench dislogue are too precious to be parted with although a bad advocate can successfully spoil a good case if the Judges rely only on oral arguments for weaving their decision. The written brief, before careful Judges, can be a surer process of deeper communication than the ‘vanishing cream’ of speaking submissions. And a new skill-preparation of an effective brief, truly brief, highly telling and tersely instructive is an art of the pen worth the acquisition especially when in practice, there are many gifted lawyers who go with Gold-smith who ‘wrote like an angel and talked like poor Paul’. India is neither England nor America and our forensic technology must be fashioned by our needs and resources. Indeed, in this Court, counsel have begun to rely heavily, with good reason, on written submissions and oral ‘sweeteners’. The Bench can never go it alone. The bar must collaborate and catalyse.

23. Nor is there any attempt, in this circulation rule, to run away from the open. Secret sittings, exclusion of the pubic and cabals in conclave are bete noire for the judicial process. A review implies, an earlier full hearing and, if warranted, a future farther hearing. Every measure has to be viewed in perspective, not out of focus. The consternation that the court, by hidden procedures, may undo the ‘open’ heritage is a chimerical fear or a disingenuous dread.

24. In other jurisdictions, which our jurists hold in anglophilic esteem, this practice is current coin. The balancing or oral advocacy and written presentation is as much a matter of principle as of pragmatism. The compulsions of realities, without compromise on basics, offer the sound solution in a given situation. There are no absolutes in a universe of relativity. The pressure of the case-load on the judges’ limited time, the serious responsibility to bestow the best thought on the great issues of the country projected on the court’s agenda, the deep study and large research which must lend wisdom to the pronouncements of the Supreme Court which enjoy awesome finality and the unconscionable backlog of chronic litigation which converts expensive end-product through sheer protraction into sour in-justice – all these emphasise the urgency of rationalising and streamlining court management with a view to saving court time for the most number of cases with the least sacrifice of quality and turn over. If, without much injury, a certain class of cases can be disposed of without oral hearing, there is no good reason for not making such an experiment. If, on a close perusal of the paper book the Judges find that there is no merit or statable case, there is no special virtue in sanctifying the dismissal by an oral ritual. The problem really is to find out which class of cases may, without risk of injustice, be disposed of without oral presentation. This is the final court of provisional infallibility, the summit court, which not merely disposes of cases beyond challenge, but is also the judicial institution entrusted with the constitutional responsibility of authoritatively declaring the law of the land. Therefore, if oral hearing will perfect the process it should not be dispensed with. Even so, where issues of national moment which the Supreme Court alone can adequately tackle are not involved, and if a considerable oral hearing and considered order have already been rendered, a review petition may not be so demanding upon the Judge’s ‘Bench’ attention, especially if, on the face of it, there is nothing new, nothing grave at stake. Even here, if there is some case calling for examination or suggestive of of an earlier error, the court may well post the case for an oral hearing. (Disposal by circulation is a calculated risk where no problem or peril is visible).

25. Oral argument has been restricted at several stages in the judicial process in many countries. In the United States the problem of a large number of frivolous petitions for rehearing (in our diction, review) filed by counsel provoked the court into framing restrictive rules of hearing. One of the rules prescribes:

A petition for rehearing, is not subject to oral argument, and will not be granted, unless a justice who concurred in the judgment or decision desires it, and a majority of the court so determines.[4]

In England, leave to appear to the House of Lords is a pattern of proceedings where obligatory oral hearing does not always exist. The recent practice direction may be useful referred to here:

As from October 1, 1976, Petitions for leave to appeal to the House of Lords will be referred to an Appeal Committee consisting of three Lords of Appeal, who will consider whether the petition appears to be competent to be received by the House and, if so, whether it should be referred for an oral hearing.

Where a petition is not considered fit for an oral hearing, the Clerk of the Parliaments will notify the parties that the petition is dismissed. (1979-1 WLR 497)

Justice John M. Harlan of the U. S. Supreme Court wrote, while explaining the need for controlling court work within manageable proportions[5],

…it would be short sighted and unwise not to recognse that preserving the certiorari system in good health, and in proper balance with the other work of the Court, are matters that will increasingly demand thoughtful and imaginative attention. As I have tired to show, the essence of the problem as things stand today is to guard against wasteful encroachments upon the Court’s time by preventing an increase in, if not reducing, the volume of improvident applications for certiorari. (emphasis added).

26. ‘It is significant that in the U. S. Supreme Court leave to appeal is decided in conference, not in court and even in regular hearing the maximum time for argument is often restricted in the highest court. Under R. 28 it is one hour for each side. The mechanics of controlling argument time is interesting and instructive.[6]

Counsel arguing should keep track of his own time – when he started and how much he has left. There is a large clock in front of him. A note on the counsel table admonished counsel not to ask the Chief Justice what time remains.

When counsel has only five minutes left, a white light on the lectern immediately in front of him goes on. When time has expired, a red light goes on. The Chief Justice is likely to stop counsel immediately, seldom allowing him to do more than to finish his sentence. The red light also marks the time to recess for lunch at two o’ clock, and the end of the day’s session at 4.30 p.m.

The rationale of reducing oral submissions without danger to efficacy or advocacy is explained by George Rossman, Associate Justice of the Supreme Court of Oregon[7]:

Crowded dockets have forced appellate courts to curtail the time allotted for oral argument, with the result that some members of the profession wonder whether courts-care for oral argument, ;….. The practice of today shows that advocacy can be effective even though the period of delivery is short. Some attorneys can be effective even though the period of delivery is short. Some attorneys can do wonders in thirty minutes when nothing more is available.

The English practice, of course, is different. Delmar Karlen has correctly set out the situation[8]:

In the United States, oral arguments are secondary in importance to the briefs, and are rigidly limited in duration. In the United States Supreme Court, one hour is allowed to each side, but in many appellate courts, less time allowed to each side, but if that is permitted, frequently no more than fifteen minutes or a half-hour for each side. Reading by counsel is frowned upon. The Judges do not wish to hear what they can read for themselves. They expect to get all the information they need about the Judgment below, the evidence, and the authorities relied upon from studying the briefs and record on appeal. They do not even encourage counsel to discuss in detail the precedents claimed to govern the decision, preferring to do that job by themselves in the relative privacy of their chambers, with or without the assistance of law clerks.

In England, where there are no written briefs, oral arguments are all important. They are never arbitrarily limited in duration. While some last for only a few minutes, others go on for many days, even weeks. The only control ordinarily exercised over the time of oral argument are informal, ad hoc suggestions from the Judges:

27. The methods of the marble palace in Washington D. C. have some relevance though certainly not compulsiveness for us John Frank writes[9]:

As the docket of the Court became more crowded necessarily the time allowed for argument had to shrink. Under today’s system the time is either a half-hour or an hour for each side, depending on the complexities of the case. This obviously precludes long introductions or eloquent perorations. Time is usually rigidly controlled; the legend is that Chief Justice Hughes once cut off an attorney in the middle of the word “if”. If there are not too many interruptions, the hour is sufficient; lawyers must learn to be brief.

We assume that judges will be up to the additional strain. We have stated enough to establish that judicial justice is not sabotaged by the eclipse of oral argument in a small sector of the forensic process. That is all that has been done by the amendment. A brief comparison between the earlier and the current position will bring this out.

28. In the earlier rule a certificate by the lawyer was a condition precedent for entertainment of the review proceeding. In the revised rule, no certificate by counsel but certification by the Bench that prima facie, an infirmity of the kind mentioned in the rule vitiates the judgment takes its place. Thereafter in both cases oral advocacy follows. Thus the only difference is not, as is sometimes assumed, that oral arguments are for the first time and finally cut out. Even now, oral hearing may be given and is given, not routinely but if ground is made out to the satisfaction of the judges who first heard the case (ignoring exceptional situations for the present). We have stated enough to repel the attack on the vires of the rule. Nothing arbitrary, nothing arcane, nothing obnoxious, given a sober appraisal.

29. The possible impression that we are debunking the value of oral advocacy in open court must be erased. Experience has shown that, at all levels, the bar, through the spoken word and the written brief has aided the process of judicial justice. Justicing is an art even as advocacy is an art. Happy interaction between the two makes for the functional fulfilment of the court system. No judicial ‘emergency’ can jettison the vital breath of spoken advocacy in an open forum. Indeed, there is no judicial cry for extinguishment of oral argument altogether. But the time has come for a proper evaluation of the role of oral argument at the appellate level in the decisional process Justice Harlan has insisted that oral argument should play a leading part. It is not “a traditionally tolerated part of the appellate process” but a decisively effective instrument of appellate advocacy. He rightly stresses that there are many judges “who are more receptive to the spoken than the written word”. He hits the nail on the head when he states:

For my part, there is no substitute, even within the time limits afforded by the busy calendars of modern appellate courts, for the Socratic method of procedure in getting at the real heart of an issue and in finding out where the truth lies[10].

We wholly endorse the conclusion of the experienced Judge of the United States Supreme Court when he concludes his thesis and oral arguments[11];

Oral argument is exciting and will return rich dividends if it is done well. And I think it will be a sorry day for the American bar if the place of the oral argument in our appellate courts is depreciated and oral advocacy becomes looked upon as a pro forma exercise which, because of tradition or because of the insistence of his client, a lawyer has to go through.

30. The importance of oral advocacy has been the subject of many article by learned writers. As Frederick Bernays Wiener writes in the Harvard Law Review[12]:

Appellate Judges, virtually without exception, say that a case should never be submitted without oral argument. A good many are on record in print to the same effect, and add that they feel a sense of genuine regret whenever the clerk announces that a case is being submitted on briefs alone. These expressions reflected the fact the task of judgment is infinitely harder when counsel is not present to be questioned regarding his exact position or the limits of a principle he has argued in the brief. We concur with the view expressed by American Judges on oral advocacy[13]:

In the Supreme Court, flexibility as especially essential, Chief Justice Hughes in 1928, characterised the argument before the Supreme Court as an “oral discussions”. The then Professor Frankfurter stated in 1933. “The atmosphere of the Court is uncongenial to oratory and the restrictions imposed on counsel tend to delete rhetoric. But true argument – the exploration of issues, particularly through sharp questioning from ‘the bench’ continues to be one of the liveliest traditions of the Court”.

Thus, among the methods of persuasion, the power of the spoken word cannot be sacrificed without paying too high a price in the quality of justice especially in the Supreme Court litigation. May be, that the brief is valuable; indeed, a well prepared brief gives the detailed story of the case; the oral argument gives the high spots. The supreme success of oral argument and the grave risk of jettisoning it from the repertoire of persuasive arts in the judicial process consists in George Rassman’s observations[14]:

The oral argument can portray the case as a human experience which engulfed the parties but which they could not solve. Thus, the oral argument can help to keep the law human and adapted to the needs of life. It typifies the Bar at its best.

31. We may sum up that the value of oral submissions need not be under-rated nor of written briefs over-rated. A blend of both is the best. It is apt to repeat the words of Judge Brian Mckenna.

The fault is that the rules of our procedure which by their discouragment of written argument make possible extensively protracted hearings in open court. Those responsible might think more of changing them. In civil cases a written argument supplemented by a short oral discussion, would sometimes save a great deal of time.

The judicial process is in crisis not because there is a flood of cases flowing into the courts. In a developing country with an awakened people and democratic rights, it is inevitable that the litigative Ganga may swell in its stream, but as Justice Warren Burger wrote;

In the final third of the century we are still trying to operate the courts with fundamentally the same basic methods the same procedures and the same machinery, Roscoe Pound said were not good enough in 1906. In the supermarket age we are trying to operate the courts with cracker-barrel corner grocer methods and equipment – vintage 1900. We have to introduce management techniques and sensitive skills in the administration of justice if its present pathological conditions are to receive therepeutic attention. The Rule regarding the disposal of review petitions by circulatory conference, supplemented by oral hearing in appropriate cases, is one small step in the right direction. Indeed, by modernising our procedure we are furthering social justice for whcih the litigant community is waiting.

32. We have set out the parameters of judicial procedure vis a vis original hearings and review hearings having due regard to the realities of forensic life. In the dynamics of hearing orality does play a role at the first round, but at the second round in the same court is partly expendable. After all, romance with oral hearing must terminate at some point. Nor can it be made a ‘sacred cow” of the judicial process. Comparative law lends confidence and from that angle we may refer to Halsbury (Vol. 10, p. 761) where disposal, without oral hearing, of petitions to leave to appeal to the House of Lords is mentioned.’ Likewise, American Jurisprudence (Vol. 5 para 979 especially footnote 13) endorses a similar procedure.

33. Sri Mridul pressed upon us that this judge-made legislation at the highest level was so plainly violative of Art. 14 an objection not spelt out in any writ petition before us that, without seeking refuge under the rule of practice that a point not raised in the writ petition may not be allowed to be urged, Judge must invalidate their own handi-work. Surely, justice and truth are never afraid of exposure nor bothered about prestige. Certainly, drafting legislation is not an easy art judges are not artist beyond their orbit. Even otherwise, Homer nods. Therefore, if we find our rules void we must declare so and we will. The omission of the ground of discrimination in the pleadings may often forbid the argument because the other side may be prejudiced or the necessary facts may not be on record. But here no such disability exists. A technical objection should not throw out a suitor from the plea for justice. After all, the courts belong to the people, as Jerome Frank once said. And litigants are legal patients suffering from injustices seeking healing for their wounds. Would you tell a sufferer in hospital that because he disclosed a certain symptom very late therefore he would be discharged without treatment for the sin of delayed disclosure? Humanism, which, at bottom sustains justice, cannot refuse relief unless, by entertaining the plea, another may sustain injury. We have permitted the contention and proceed to consider it.

34. The rule, on its face, affords a wider set of grounds for review for orders in civil proceedings, but limits the ground vis a vis criminal proceedings to ‘errors apparent on the face of the record’. If at all, the concern of the law to avoid judicial error should be heightened when life or liberty is in peril since civil penalties are often less traumatic. So, it is reasonable to assume that the framers of the rules could not have intended a restrictive review over criminal orders or judgments. It is likely to be the other way about. Supposing an accused is sentenced to death by the Supreme Court and the ‘deceased’ shows up in court and the court discovers the tragic treachery of the recorded testimony. Is the Court helpless to review and set aside the sentence of hanging ? We think not. The power to review is in Article 137 and it is equally wide in all proceedings. The rule merely canalises the flow from the reservoir of power. The stream cannot stifle the source. Moreover, the dynamics of interpretation depend on the demand of the context and the lexical limits of the text. ‘Here’ ‘record’ means any material which is already on record or may, with the permission of the court, be brought on record. If justice summons the judges to allow a vital material in, it becomes part of the record; and if apparent error is there, correction becomes necessitous.

35. The purpose is plain, the language is elastic and interpretation of a necessary power must naturally be expansive. The substantive power is derived from Article 137 and is as wide for criminal as for civil proceedings. Even the difference in phraseology in the rule (O.40, R.2) must, therefore, be read to encompass the same area and not to engraft an artificial divergence productive of anomaly. If the expression ‘record’ is read to mean, in its semantic sweep, any material even later brought on record, with the leave of the court, it will embrace subsequent events, new light and other grounds which we find in Order 47, Rule 1, C.P.C. We see no insuperable difficulty in equating the area in civil and criminal proceedings when review power is invoked from the same source.

36. True, the review power vis a vis criminal matters was raised only in the course of the debate at the Bar. But when the whole case is before us we must surely deal comprehensively with every aspect argued and not piecemeal with truncated parts. That will be avoidance of our obligation. We have therefore, cleared the ground as the question is of moment, of frequent occurrence and was mooted in the course of the hearing. This pronouncement on review jurisdiction in criminal proceedings sets at rest a possible controversy and is as much binding on this Court itself (unless overruled) as on litigants. That is the discipline of the law of precedents and the import of Article 141.

37. As we conclude, we wish to set the sights a right vis a vis oral hearings in judicial proceedings. To put superstituous faith in oral submissions or unlimited argumentation as the sole means of presentation and persuasion and to debunk the potency of well-drawn-up manuscript representations may be condemned as absurd. True, our judicial culture nourishes oral advocacy and public hearing since secret cerebrations and cabal deliberations are ordinarily anathema. Speaking generally, oral advocacy is a decisive art in promoting justice. The Bench cannot dispense with the Bar. In our system advocacy becomes functional when presented viva voce and is enfeebled if presented in muted print. We do not claim that orality can be given a permanent holiday. Such an attitude is an over-reaction to argumentum ad nauseum. But we must importantly underscore that while lawyer’s advocacy cannot be made to judicial measure especially if judges are impatient, there is a strong case processing argumentation by rationalisation, streamlining, abbreviation and in, special situations, elimination. Review proceedings in the Supreme Court belong to the last category. There is no rigidity about forensic strategies and the court must retain a flexible power in regard to limiting the time of oral arguments or, in exceptional cases, eliminating orality altogether, the paramount principle being fair justice. Therefore, it is quite on the cards that where no injury to justice will befall, orality may suffer partial eclipse in the shape of time-limitation or substitution by written submission even in categories other than review proceedings. All that we mean to indicate is that the mode of ‘hearing’, whether it should be oral or written or both, whether it should be full-length or rationed, must depend on myriad factors and future developments, ‘Judges of the Supreme Court must be trusted in this regard and the Bar will ordinarily be associated when decisions affecting processual justice are taken,’ We thus see no disparity given flexibility in deciding the meaning of meanings.

38. We see no force in the challenges and do hope that the Bar will make its contribution to making experiments in modernisation and humanisation of the Justice System and court culture.

39. Pathak, J—We are in general agreement with our brother V. R. Krishna Iyer on the points directly in controversy in this writ petition, but we consider it desirable to say a few words on certain aspects concerning the scope of Rule 3 of Order XL of the Supreme Court Rules, 1966.

40. At the outset, we may state that as we are considering the question of the need for an oral hearing in relation to a review application only, we refrain from expressing any opinion on the point whether an oral hearing is an imperative requirement in the disposal of other kinds of cases brought before the Court. That is a point to which, we think, we should address ourselves only when it directly arises.

41. In regard to a review application we are clear that an oral hearing is not an essential requirement if on a preliminary examination the review application is found to be devoid of substance. ‘A review application is an attempt to obtain a reconsideration of the judgment of the court disposing of the substantive proceeding. It attempts nothing more’. The merits of the controversy have already been examined by the Court and, in view of the ordinary scope of the power of review, the re-examination sought cannot proceed beyond the controversy already disposed of. It is substantially the same ground traversed again, either entirely or in part. However, the Rule takes care to provide for oral arguments should the Court consider that necessary. That necessity may arise in either of two cases. On the review application being placed before the judges, they will consider it together with any additional written arguments filed by the petitioner in supplementation of the review application. If the judges hold on that screening of the review application that there is no case whatever for review, they will reject the review application. On the contrary, they may find that a good prima facie case for review has been made out, and so they will direct notice to issue to the respondent, and upon that an oral hearing will take place in the presence of the parties. That is one occasion on which an oral hearing is necessary. If the judges are not convinced that a prima facie case has been made out by the review application, but are also not satisfied that there is no merit whatever in it, and are of opinion that in order to come to a definite opinion prima facie on the merits of the review application it is desirable to hear the applicant orally they will notify accordingly and afford an opportunity of oral hearing. On such oral hearing, the judges may dismiss the review application if finally satisfied that there is no prima facie case for review, but in the event of a prima facie case being made out they will issue notice to the respondent and an oral hearing will follow in the presence of the parties. It is apparent that the denial of oral argument is confined to the preliminary state only, when the review application is placed before the judges and, as it were, they scream it for the purpose of determining whether there is reason to proceed further in the matter or whether it merits outright rejection. It is not possible to hold on principle that at that preliminary stage also, the applicant for review is entitled to be heard orally. The merit of an oral hearing lies in this counsel addressing the court are able to discern what are the aspects of the controversy on which more light is needed. The Court likewise can utilise an oral hearing in order to express its doubts on a point and seek clarification thereon from counsel. But if there is no doubt whatever that the review application is totally without substance, an oral hearing becomes a superfluity and, at best, a mere formality.

42. A written submission is capable of careful drafting and explicit expression, and is amenable to such arrangement in its written content that it pointedly brings to the notice of the reader the true scope and merit of the submission. We do not believe that a written submission in a review application cannot do adequate justice in the matter of setting forth the case of the litigant. If there is need for an oral hearing it is for the reason mentioned earlier, that counsel come to know of the doubts in the mind of the Court and the court has an opportunity of having its doubts resolved. It is this feature of an oral hearing which gives to it its primary value and relevance. But that an oral hearing is mandatory in all classes of cases and at every stage of every case is a proposition to which we find ourselves unable to accede.

43. The writ petition is dismissed, but without any order as to costs.

[1]. The Spirit of Liberty by Learned Hand, p. xxiv

[2]. Sub. by GSR 387 dated 13-3-1978 and came into force on 18-3-1978.

[3]. Added by GSR 1024 dated 9-8-1978 and came into force on 19-8-1978.

[4]. Supreme Court Practice by Stern and Gressman 1950 Edn. p. 321.

[5]. Hart and Wechsler, the Federal Courts and the Federal System 2nd Edn. pp. 1605-1607.

[6]. Supreme Court’ Practice (supra) p. 303.

[7]. American Bar Association Journal Jan. 1959, Vol. 45, No. 1 p. 676.

[8]. 1962 Vol. 78 L. Q. R. 371 at 379-380.

[9]. John P. Frank, Marble Palace – The Supreme Court in American Life 1958 Edn. P. 92.

[10]. Cornell Law Qly. Vol. 41 1955-56, 7

[11]. Cornell Law Qly. Vol. 41 1955-56, 11

[12]. Vol. 62, 1948, p. 59

[13]. Supreme Court Practice (supra) p. 316

[14]. American Bar Association Journal (supra) p. 676

Rajeeb Gandhi Murder Case – Review Prayer by Accused dismissed

08-10-1999

Supreme Court-min

The conviction and sentence passed by the trial Court of the offences under Ss. 212 and 216 of the Indian Penal Code, S. 14 of the Foreigners Act, 1946, S. 25(1-B) of the Arms Act, S. 5 of the Explosive Substances Act, S. 12 of the Passport Act and S. 6(1-A) of the Wireless and Telegraphy Act, 1933, in respect of those accused who were found guilty of those offences, are confirmed.

AIR 1999 SC 3700 : (1999) 3 Suppl. SCR 540 : (1999) 9 SCC 323 : JT 1999 (8) SC 132 : (1999) 6 SCALE 381 : (1999) CriLJ SC 4587

(SUPREME COURT OF INDIA)

Suthenthiraraja alias Santhan and others Appellant
Versus
State through DSP/cbi, SIT, Chennai Respondent

WITH

State rep. by Superintendent of Police, C.B.I. Appellant
Versus
Shankar alias Kaneswaran and others Respondent

(Before : K. T. Thomas, D. P. Wadhwa And S. S. M. Quadri, JJ.)

Review Petns. Nos. 888-89 with 933-937 of 1999 in Death Reference Case No. 1 of 1998 and Cri. Appeals Nos. 321-325 of 1998, Decided on : 08-10-1999.

One Judge giving sentence of life imprisonment while refusing to affirm sentence of death—Unanimous opinion not necessary—Dissenting judgment is not a sufficient reason to modify the sentence—Sentence of death imposed on convict affirmed.

Counsel for the Parties:

Altaf Ahmed, Addl. Solicitor Genreal, V. Subramaniam, A. D. N. Rao, A. Mariarputham, Ms. Meenakshi Arora, P. Parmeswaran, T. Raja, K. Thennan, Advocates with him, for Appearing Parties.

Judgement

Thomas, J—I am in respectful agreement with the reasons by which my learned brother Wadhwa, J. has concluded that the review petitions are to be dismissed, though I have a dissent in regard to the sentence aspect concerning A-1 Nalini. On that score, apart from reiterating my reasons for awarding imprisonment for life as the sentence for the offence under S. 302 read with S. 120-B of Indian Penal Code to A-1 Nalini, I wish to express my separate stand regarding the review petition filed by her.

2. The Constitution Bench in Bachan Singh v. State of Punjab (1980) 2 SCC 684 has narrowed down the scope for awarding death sentence to the extremely restricted radius of “rarest of rare cases” in which the alternative lesser sentence of imprisonment for life is unquestionably foreclosed. In the main judgment in the present case one of the three-Judges found that sentence of imprisonment for life would be sufficient to meet the ends of justice as for A-1 Nalini.

3. In a case where a Bench of three-Judges delivered judgment in which the opinion of at least one judge is in favour of preferring imprisonment for life to death penalty as for any particular accused, I think it would be a proper premise for the Bench to review the order of sentence of death in respect of that accused. Such an approach is consistent with Art. 21 of the Constitution as it helps saving a human life from gallows and at the same time putting the guilty accused behind bars for life. In my opinion, it would be a sound proposition to make a precedent that when one of the three-Judges refrains from awarding death penalty to an accused on stated reasons in preference to the sentence of life imprisonment that fact can be regarded sufficient to treat the case as not falling within the narrowed ambit of “rarest of rare cases when the alternative option is unquestionably foreclosed.”

4. I may add as an explanatory note that the reasoning is not to be understood as a suggestion that a minority opinion in the judgment can supersede the majority view therein. In the realm of making a choice between life imprisonment and death penalty the above consideration is germane when the scope for awarding death penalty has now shrunk to the narrowest circle and that too only when the alternative option is “unquestionably foreclosed.” In a special situation where one of the three deciding judges held the view that sentence of life imprisonment is sufficient to meet the ends of justice it is a very relevant consideration for the Court to finally pronounce that the prisoner can be saved from death as the lesser option is not “unquestionably foreclosed” in respect of that prisoner.

5. So in my view the review petition filed in respect of A-1 Nalini should be allowed and her sentence should be altered to imprisonment for life. I, therefore, allow the review petition to the aforesaid limited extent.

6. D. P. Wadhwa, J—There are two sets of review petitions. They are against judgment of this Court dated May 11, 1999 in Death Reference Case No. 1 of 1998 and Criminal Appeals Nos. 321-325 of 1998. One set has been filed by the convicts Nalini (A-1), Murughan (A-3), Santhan (A-2) and Arivu (A-18). Death sentence awarded to them by the Designated Court has been confirmed by this Court. Petitioners in their review petitions are not challenging their conviction. The review is only on question of sentence. There were, however, 26 accused who faced trial and they were all sentenced to death under the provisions of the Terrorist and Disruptive Activities Act (TADA) and Indian Penal Code (IPC) and also sentenced to varying terms of imprisonment on various other charges. Sentence of death awarded to them by the Designated Court was submitted to this Court for confirmation. The convicts also filed appeals against their conviction and sentence. After hearing elaborate arguments and examining the record, this Court passed the following order:-

“The conviction and sentence passed by the trial Court of the offences of S. 3(3), Section 3(4) and S. 5 of the TADA Act are set aside in respect of all those appellants who were found guilty by the trial Court under the said counts.

The conviction and sentence passed by the trial Court of the offences under Ss. 212 and 216 of the Indian Penal Code, S. 14 of the Foreigners Act, 1946, S. 25(1-B) of the Arms Act, S. 5 of the Explosive Substances Act, S. 12 of the Passport Act and S. 6(1-A) of the Wireless and Telegraphy Act, 1933, in respect of those accused who were found guilty of those offences, are confirmed. If they have already undergone the period of sentence under those counts it is for the jail authorities to release such of those against whom no other conviction and sentence exceeding the said period have been passed.

The conviction for the offence under Section 120-B read with S. 302, Indian Penal Code as against A-1 (Nalini), A-2 (Santhan alias Raviraj), A-3 (Murugan alias Thas), A-9 (Robert Payas), A-10 (Jayakumar), A-16 (Ravichandran alias Ravi) and A-18 (Perarivalan alias Arivu) is confirmed.

We set aside the conviction and sentence of the offences u/S. 302 read with S. 120-B passed by the trial Court on the remaining accused.

The sentence of death passed by the trial Court on A-1 (Nalini), A-2 (Santhan), A-3 (Murugan) and A-18 (Arivu) is confirmed. The death sentence passed on A-9 (Robert), A-10 (Jayakumar) and A-16 (Ravichandran) is altered to imprisonment for life. The reference is answered accordingly.

In other words, except A-1 (Nalini), A-2 (Santhan), A-3 (Murugan), A-9 (Robert Payas), A-10 (Jayakumar), A-16 (Ravi-chandran) and A-18 (Arivu), all the remaining appellants shall be set at liberty forthwith.”

7. While the four petitioners are aggrieved by the award of sentence of death to them, State, through CBI in the second set of review petitions filed by it, is aggrieved with that part of the judgment where this Court held that the offence was not committed by the accused with intent to strike terror in people or any section of people and on that account no offence under S. 3(3) of TADA had been made out. State in its review petitions is not challenging findings of this Court that offence under S. 3(3) of TADA is not committed with intent to overawe the Government as by law established or that no offence under S. 4 of TADA which provides punishment for disruptive activities, has been committed.

8. Review petitions have been filed under Art. 137 of the Constitution read with Order 40 of the Supreme Court Rules, 1966 as amended. Under Art. 137 of the Constitution Supreme Court has power to review any judgment pronounced or order made by it subject to the provisions of any law made by the Parliament or any Rule made under Art. 145 of the Constitution. Supreme Court Rules have been framed in exercise of those powers. Rules 1 and 2 of Order 40 of the Supreme Court Rules are relevant and we may set out the same as under:-

“1. The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order 47, Rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.

2. An application for review shall be by a petition, and shall be filed within thirty days from the date of the judgment or order sought to be reviewed. It shall set out clearly the grounds for review.”

9. As to the scope of review in criminal proceedings under Rule 1 it has been considered by the Constitution Bench in P. N. Eswara Iyer v. Registrar, Supreme Court of India (1980) 4 SCC 680 . This is how this Court considered its power of review in criminal proceedings (at pp. 818-19 of AIR):

“The Rule 1 of Order 40, on its face, affords a wider set of grounds for review for orders in civil proceedings, but limits the ground vis-a-vis criminal proceedings to ‘errors apparent on the face of the record.’ If at all, the concern of the law to avoid judicial error should be heightened when life or liberty is in peril since civil penalties are often less traumatic. So, it is reasonable to assume that the framers of the rules could not have intended a restrictive review over criminal orders or judgments. It is likely to be the other way about. Supposing an accused is sentenced to death by the Supreme Court and the ‘deceased’ shows up in Court and the Court discovers the tragic treachery of the recorded testimony. Is the Court helpless to review and set aside the sentence of hanging? We think not. The power to review is in Art. 137 and it is equally wide in all proceedings. The rule merely canalises the flow from the reservoir of power. The stream cannot stifle the source. Moreover, the dynamics of interpretation depend on the demand of the context and the lexical limits of the test. Here ‘record’ means any material which is already on record or may, with the permission of the Court, be brought on record. If justice summons the judges to allow a vital material in, it becomes part of the record; and if apparent error is there, correction becomes necessitous.

The purpose is plain, the language is elastic and interpretation of a necessary power must naturally be expansive. The substantive power is derived from Art. 137 and is as wide for criminal as for civil proceedings. Even the difference in phraseology in the rule (Order 40, Rule 2) must, therefore, be read to encompass the same area and not to engraft an artificial divergence productive of anomaly, if the expression ‘record’ is read to mean, in its semantic sweep, any material even later brought on record, with the leave of the Court, it will embrace subsequent events, new light and other grounds which we find in Order 47, Rule 1, C.P.C. We see no insuperable difficulty in equating the area in civil and criminal proceedings when review power is invoked from the same source.”

10. It would be seen that scope of review in criminal proceedings has been considerably widened by pronouncement in the aforesaid judgment. In any case review is not rehearing of the appeal all over again and to maintain a review petition it has to be shown that there has been miscarriage of justice. Of course, the expression “miscarriage of justice” is all embracing. Ordinarily application for review shall be disposed of by circulation without any detailed arguments unless otherwise ordered by the Court (Rule 3). Considering that review petitioners had been awarded death sentence we had heard the arguments in considerable detail in the appeals and we confirmed the award of death sentence on the review petitioners even so we thought it prudent that we should hear the arguments in review petitions as well.

11. Mr. Natarajan, who appeared for the convict review petitioners, submitted that he was not challenging the finding of guilt of the petitioners and was confining the review petitions only on question of award of death sentence. He said that cases of these four review petitioners were no different from those of A-9 (Robert Payas), A-10 (Jayakumar) and A-16 (Ravi), who were also found guilty under S. 120-B read with S. 302, I.P.C. along with four review petitioners, but award of sentence of death to them had been altered to imprisonment for life. We may, however, note that in the case of A-1 (Nalini) the confirmation of award of death sentence was by majority and on three other review petitioners it was unanimous. In the case of A-1 (Nalini), one of us Thomas, J. was of the view that A-1 (Nailini) could be saved from the gallows and for that he gave reasons. This view was not shared by two of us (Wadhwa and Quadri, JJ.).

12. Mr. Natarajan again took us to the role of each of the review petitioners and the philosophy of award of death sentence as considered by the Constitution Bench of this Court in Bachan Singh v. State of Punjab (1980) 2 SCC 684. He said that the evidence which had been led to prove the charges under TADA could not be used while appreciating the evidence regarding commission of offences under IPC and on that consideration awarding death sentence for those offences. Mr. Natarajan also pointed out two or three errors in the judgment in recording of the name or otherwise of the accused which he said could have bearing on the award of sentence. Finally, he again contended that the planners and perpetrators of the crime were all dead and three of the seven accused also held guilty for offence under Ss. 120-B/302, IPC have been sentenced to life imprisonment and so far the case of four review petitioners is concerned they be also awarded sentence of life imprisonment. It is difficult to accept the arguments of Mr. Natarajan. All the three-Judges constituting the Bench gave separate judgments and each one of us considered the role of each one of the accused in great detail. The errors pointed out by Mr. Natarajan are not even contradictions and are inconsequential or insignificant not affecting the ultimate result. It is only after examining the role of each of the accused on the basis of the evidence on record that the role of four review petitioners was found different than the three others who have been sentenced to life imprisonment.

13. Mr. Altaf Ahmed, Additional Solicitor General for India, questioned the very maintainability of the review petitions. He said no error has been pointed out which could be said to have led to miscarriage of justice. He said that judges had examined the role of the accused from all angles and it was only after that death sentence was confirmed on the four review petitioners. Theory of sentencing was also fully considered in all the three judgments separately given and nothing new has been pointed.

14. Having considered the scope of review and the rival contentions we find no merit in the review petition by the four convicts sentenced to suffer the extreme penalty provided under the law.

15. In the review petitions filed by the State through CBI Mr. Soli J. Sorabjee, learned Attorney-General for India, said that relevant considerations have not been taken into account to hold that the accused did not commit the offence with intent to strike terror in people or in any section of the people. He said earlier decisions of this Court in Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijjaya (1990) 4 SCC 76, Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 and Girdhari Parmanand Vadhava v. State of Maharashtra, (1996) 11 SCC 179 , were not considered in proper perspective by this Court. He made following submissions:-

1. The well settled principle that a person is presumed to intend the natural and probable consequence of his act. The greater the probability of a consequence, the more likely it is that the consequence was foreseen and, if that consequence was foreseen, the more likely it is that that consequence was also intended.

2. A crucial part of the reasoning in Niranjan Singh’s case (supra) at page 88 para 10 as also in Girdhari’s case (supra) at page 194 , has not been adverted to at all and has been overlooked.

3. There is clear misappreciation of the ratio of this Hon’ble Court’s judgment in Hitendra Vishnu (1994) 4 SCC 602. The authority supports the case of the prosecution that the offence committed is a terrorist act with a view to strike terror.

4. The conclusion arrived at that the act in question was not committed with an intent to strike terror in the people or any section of the people is not in conformity with the admitted facts on record and findings recorded in the judgment.

16. Mr. Sorabjee also referred to English law on the question of proof of intention and quoted para 16 from Halsburry’s Law of England (Fourth Edition), Volume 11(1), which is as under:-

“16. Proof of intention and foresight. Whenever an offence is defined so as to require proof that a person intended or foresaw a particular result, the Court or jury is not bound in law to infer that such person intended or foresaw that result by reason only of its being a natural and probable consequence of his actions, but must decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as may be proper in the circumstances. Foresight of the consequences of an act does not necessarily imply the existence of intention but it may be a factor from which, when considered together with all the other evidence, the jury may infer that the accused had the alleged intention. The probability of the result is another factor, and an important one, for the jury to consider when deciding whether the result was intended. When directing juries about the mental element in any crime of specific intent, judges should avoid any elaboration or paraphrase as to what is meant by intent. Some further direction may, however, be necessary if the prosecution invites the jury to infer intent from the foresight of a consequence. As a matter of evidence, the greater the probability of a consequence, the more likely it is that the consequence was foreseen and, if that consequence was foreseen, the more likely it is that that the consequence was also intended.

In Niranjan Singh’s case (supra), which was quoted in the case of Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 this Court had said that intention of the accused was clearly to eliminate the rivals and gain supremacy in the under world so that they may be known as the bullies of the locality and would be dreaded as such. In that case the intention was not to strike terror in the people or any section of people. This Court added, “It would have been a different matter if to strike terror some innocent persons were killed. In that case the intention would be to strike terror and the killings would be to achieve that objective. In that case the intention was to liquidate Raju and Keshav and thereby achieve the objective of gaining supremacy in the underworld. The consequence of such violence is bound to cause panic and fear but the intention of committing the crime cannot be said to be strike terror in the people or any section of the people.”

17. In Girdhari Parmanand Vadhava v. State of Maharashtra (1996) 11 SCC 179 , this Court again referred to the aforesaid observations made by this Court in Niranjan Singh’s case (supra). It was thus the submission of Mr. Sorabjee that in the present case where so many innocent persons had been killed the intention could be gathered that the accused had committed the crime with intent to strike terror in the people or any section of people. Mr. Natarajan in his reply submitted that there was no quarrel with the statement of law as propounded by this Court, but he said that mens rea was vital in the criminal trial and this Court on evidence came to the conclusion that the accused did not commit the crime with an intention to strike terror in the people or any section of people.

18. We do not think Mr. Sorabjee is right in his submission. All the judgments of this Court were duly considered and so was the law on the subject and it was only then on the basis of the evidence that this Court concluded that the accused did not commit the crime with intent to strike terror in the people or any section of the people. This Court made no general statement. In recent judgment in State through CBI, Delhi v. Gian Singh JT 1999 (6) SC 575 , where the accused were sentenced to death under S. 3(3)(i) of TADA for offence of murder of Sant Harcharan Singh Longowal, this Court did conclude on the basis of evidence on record that the main intention of the accused was to administer a terror or shock wave to the people at large when Sant Harcharan Singh Longowal was not the only target of the shooters though perhaps he was one of the principal targets.

19. We find no error in the judgment sought to be reviewed on the ground that we were wrong in holding that the accused did not intent to strike terror in the people or any section of the people and on that account they did not commit any offence under S. 3 of TADA.

20. Accordingly, review petitions are dismissed.

21. S. S. M. Quadri, J—On reading the draft order prepared by my learned brother Wadhwa, J. I endorsed my agreement thereto as I felt that the order in a review petition should neither reiterate nor add to the reasons contained in the judgment under review. But thereafter I received the order of my learned brother Thomas, J. containing his dissenting note regarding the sentence passed on A-1 Nalini and suggesting us to review the order of sentence of death. The learned Judge observed:

“In a case where a Bench of three-Judges delivered judgment in which the opinion of at least one Judge is in favour of preferring imprisonmnet for life to death penalty as for any particular accused, I think it would be a proper premise for the Bench to review the order of sentence of death in respect of that accused.”

22. The ambit of Rule 40(1) of Supreme Court Rules which provides grounds for review, as interpreted by this Court in P. N. Eswara Iyer v. Registrar, Supreme Court of India (1980) 4 SCC 680 , vis-a-vis criminal proceedings, is not confined to “an error apparent on the face of the record.” Even so by process of interpretation it cannot be stretched to embrace the premise indicated by my learned brother as a ground for review. That apart there are two difficulties in the way. The first is that the acceptance of the said proposition would result in equating the opinion of the majority to a ground analogous to ‘an error apparent on the face of the record’ and secondly in a Bench of three-Judges or of greater strength if a learned Judge is not inclined to confirm the death sentence imposed on a convict, the majority will be precluded from confirming the death sentence as that per se would become open to review.

23. In this view of the matter, agreeing with brother Wadhwa, J. I dismiss the review petitions.

In view of the orders of the Court taking the majority view the review petitions are dismissed.

 

07-06-2012

Supreme Court-min

Nupur Talwar Vs. Central Bureau of Investigation & ANR.

[Review Petition (CRL.) No. 85 of 2012 in Criminal Appeal No. 68 of 2012]

O R D E R

1. The instant controversy emerges out of a double murder, committed on the night intervening 15-16.5.2008. On having found the body of Aarushi Talwar in her bedroom in house no. L-32, Jalvayu Vihar, Sector 25, Noida, her father Dr. Rajesh Talwar got a first information report registered at Police Station Sector 20, Noida, on 16.5.2008. In the first information report Dr. Rajesh Talwar pointed the needle of suspicion at Hemraj, a domestic help in the household of the Talwars. On 17.5.2008 the dead body of Hemraj was recovered from the terrace of 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 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 no trace of blood of Hemraj.

iv. The clothes that Dr. Nupur Talwar was wearing in the photograph taken by Aarushi in the night of the incident were seized by CBI but no blood was found during forensic examination.

v. Murder weapons were not recovered immediately after the offence. One of the murder weapon i.e. sharp edged instrument could not be recovered till date and expert could not find any blood stain or DNA of victims from golf stick to directly link it to the crime.

vi. There is no evidence to explain the finger prints on the scotch bottle (which were found along with blood stains of both the victims on the bottle). As per police diary, it was taken into possession on 16th morning itself. In spite of best efforts, the fingerprint(s) could not be identified.

vii. The guards of the colony are mobile during night and at the entrance they do not make any entry. Therefore, their statements regarding movement of persons may not be foolproof.

viii. Scientific tests on Dr. Rajesh Talwar and Dr. Nupur Talwar have not conclusively indicated their involvement in the crime.

ix. The exact sequence of events between (in the intervening night of 15-16/05/2008) 00.08 mid night to 6:00 AM in the morning is not clear. No evidence has emerged to show the clear role of Dr. Rajesh Talwar and Dr. Nupur Talwar, individually, in the commission of crime.

x. A board of experts constituted during earlier investigation team has given an opinion that the possibility of the neck being cut by khukri cannot be ruled out, although doctors who have 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) U/s 302/201 IPC 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 investigation (by Dr. Rajesh Talwar). Instead, having taken cognizance, the Magistrate summoned Dr. Rajesh Talwar (father of Aarushi Talwar) and his wife Dr. Nupur Talwar (mother of Aarushi Talwar)for committing the murders of Aarushi Talwar and Hemraj, as also, for tampering with the evidence.

7. The aforestated summoning order dated 9.2.2011, was assailed by Dr. Nupur Talwar by filing a revision petition before the High Court of judicature at Allahabad (Criminal Revision Petition no. 1127 of 2011). The afore said Criminal Revision Petition came to be dismissed by the High Court vide an order dated 18.3.2011. Dissatisfied with the order passed by the High Court dated 18.3.2011, Dr. Nupur Talwar approached this Court by filing Special Leave Petition (Criminal) no. 2982 of 2011 (renumbered as Criminal Appeal no. 16 of 2011).

The aforesaid Criminal Appeal was dismissed by this Court by an order dated 6.1.2012. Through the instant review petition, the petitioner Dr. Nupur Talwar has expressed the desire, that this Court reviews its order dated 6.1.2012 (dismissing Criminal Appeal no. 16 of 2011). The instant Review Petition was entertained, and notice was issued to the respondents. Lengthy arguments were advanced at the hands of the learned counsel representing the review petitioner. Learned counsel representing the CBI also went to great lengths, to repudiate the same. It emerged from the submissions advanced at the hands of the rival parties, that the focus of attack 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 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 vs. State of West Bengal, (2000) 1 SCC 722, this Court having examined sections 227, 239 and245 of the Code of Criminal Procedure, concluded, that the provisions of the Code mandate, that at the time of passing an order of discharge infavour 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 vs. M/s. Mohan Meakins Ltd. and others, (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 held as under:- “2. Though the trial court issued process against the accused at the first instance, they desired the trial court to discharge them without even making their first appearance in the court. When the attempt made for that purpose failed they moved for exemption from appearance in the court.

In the meanwhile the Sessions Judge, Lucknow (Shri Prahlad Narain) entertained a revision moved by the accused against the order issuing process to them and, quashed it on the erroneous ground that the magistrate did not pass “a speaking order” for issuing such summons. 3. The Chief Judicial Magistrate, (before whom the complaint was filed) thereafter passed a detailed order on 25.4.1984 and again issued process to the accused. That order was again challenged by the accused in revision before the Sessions Court and the same Sessions Judge (Shri Prahlad Narain) again quashed it by order dated 25.6.1984. 5. We may point out at the very outset that the Sessions Judge was in error for quashing the process at the first round merely on the ground that the Chief Judicial Magistrate had not passed a speaking order.

In fact it was contended before the Sessions judge, on behalf of the Board, that there is no legal requirement in Section 204 of the Code of Criminal Procedure (For short the ‘Code’) to record reasons for issuing process. But the said contention was spurned down in the following words: My attention has been drawn to Section 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 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 the Managers or Directors of the company can also be proceeded against, when the company is alleged to be guilty of the offence. Paragraph 12 of the complaint read thus: “That the accused persons from 2 to 11 are Directors/Managers/Partners of M/s. Mohan Meakins Distillery, Daliganj, Lucknow, as mentioned in this complaint are responsible for constructing the proper works and plant for the treatment of their highly polluting trade effluent so as to conform the standard laid down by the Board.

Aforesaid accused persons are deliberately avoiding to abide by the provisions of Sections 24 and 26 of the aforesaid Act which are punishable respectively under Sections 43 and 44 of the aforesaid Act, for which not only the company but its Directors, Managers, Secretary and all other responsible officers of the accused company, responsible for the conduct of its business are also liable in accordance with the provision of the Section 47 of the Act.” The appellant has further stated in paragraph 23 of the complaint that “the Chairman, Managing Directors and Directors of the company are the persons responsible for the act and therefore, they are liable to be proceeded against according to the law.” (emphasis is mine)Whether an order passed by a Magistrate issuing process required reasons to be recorded, came to be examined by this Court again, in Dy. Chief Controller of Imports and Exports vs. Roshanlal Agarwal & Ors., (2003) 4SCC 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. & 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.” (emphasis is mine)Recently, in Bhushan Kumar and another vs. State (NCT of Delhi) and another(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 clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued.

11. Time and again it has been stated by this Court that the summoning order Under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith.” (emphasis is mine)It is therefore apparent, that an order issuing process, cannot be vitiated merely because of absence of reasons.10. The matter can be examined from another perspective.

The Code of Criminal Procedure expressly delineates irregularities in procedure which would vitiate proceedings. Section 461 thereof, lists irregularities which would lead to annulment of proceedings. Section 461 aforesaid is being extracted hereunder:- “461. Irregularities which vitiate 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 passed under section 446, his proceedings shall be void.”In the list of 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 there by. 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 Magistrate could have accepted the report and dropped proceedings. The Magistrate, however, chose not to accept the CBI’s prayer for closure. Alternatively, the Magistrate could have disagreed with the report, by taking a view (as she has done in the present case) that there were sufficient grounds for proceeding further, and thereby, having taken cognizance, could have issued process (as has been done vide order dated 9.2.2011). A third alternative was also available to the Magistrate. The Magistrate could have directed the police to carry out further investigation. As noticed hereinabove, the Magistrate in spite of the submission of a closure report, indicating the absence of sufficient evidence, having taken cognizance, chose to issue process, and thereby, declined the third alternative as well.

Since the CBI wanted the matter to be closed, it was appropriate though not imperative for the Magistrate to record reasons, for differing with the prayer made in the closure report. After all, the CBI would have surely wished to know, how it went wrong. But then, there are two other important factors in this case, 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 dated25.1.2011, 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, would have been blamed of having taken the decision whimsically and/or arbitrarily. 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 209is 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 Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.”In this background, it was essential for the Magistrate to highlight, for the perusal of the Court of Session, reasons which had weighed with her, in not accepting the closure report submitted by the CBI, as also, for not acceding to the prayer made in the protest petition, for further investigation.

It was also necessary to narrate what prompted the Magistrate to summon the complainant as an accused. For, it is not necessary that the Court of Session would have viewed the matter from the same perspective as the Magistrate. Obviously, the Court of Session would in the first 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 reasons.

An order passed in the circumstances noted hereinabove, without outlining the basis there for, would have been injudicious. 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 another vs. KPS Gill and another, (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 though it was passed after hearing the objections of the complainant, it has got to be set aside and we do hereby set it aside. Consequent thereupon, two courses are left open to us; to direct the learned Magistrate to hear the parties afresh on the question of acceptance of the police report and pass a reasoned order or to decide for ourselves whether it is a fit case for taking cognizance under Section 190(1)(b) Cr.P.C. Keeping in view the fact that the case is pending for the last seven years only on the threshold question we do not wish to lake the former course as that would only delay the matter further. Instead thereof we have carefully looked into the police report and its accompaniments keeping in view the following observations of this Court in H.S. Bains. v. State, (1980) 4 SCC 631, with which we respectfully agree:

“The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. If a complainant states the relevant facts 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 cognizance of the offences under Sections 354 and 509 I.P.C. We, however, refrain from detailing or discussing those statements and the nature 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 Magistrate’s order, inbeing lengthy and detailed. In passing the order dated 9.2.2011 the Magistrate merely highlighted the circumstances emerging out of the investigation carried out in the matter, which constituted the basis of her decision to issue process. The Magistrate’s order being speaking, cannot be stated to have occasioned failure of justice. The order of the Magistrate, therefore, cannot be faulted on the ground that it was a reasoned order.

13. During the course of hearing, the primary ground for assailing the order of the Magistrate dated 9.2.2011 was focused on projecting, that the Magistrate had not only drawn incorrect conclusions, but had also overlooked certain vital factual aspects of the matter. Before examining the details on the basis whereof the order passed by the Magistrate (dated9.2.2011) can be assailed, it will be necessary to first summarize the basis whereon the Magistrate perceived, that there was sufficient material for proceeding against the accused in the present controversy.

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 Talwarand 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., where after, 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 a key to be opened from outside. And further, coupled with the fact, that the outer exit/entry door(s) to the flat of the Talwars, had not been broken into. It was assumed, that there was 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 house no. L-32,Jalvayu Vihar, Sector 25, Noida, on the night intervening 15-16.5.2008.

This also, according to the Magistrate, affirmed the main deduction, that no outsider was involved. Fifthly, based on the statements of Dr. Anita Durrani, Punish Rai Tandonand K.N. Johri, recorded during the course of investigation, it was sought to be inferred, that the other servants connected with the household of the Talwar family, namely, Raj Kumar, Vijay Mandal and Krishna Thadarai, were present elsewhere at the time of the commission of the twin murders, and also that, there was no material depicting their prima facie involvement or motive in the crime, specially because, no “precious things like jewellery or any other thing from the house of Talwars couple” was found missing and further that ” no rape on Aarushi Talwar had been confirmed”.

Accordingly, it was sought to be reasoned, that no outsider had entered the premises. Sixthly, from the statements 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 oraround the time of occurrence (determined in the post-mortem report).Seventhly, from the statements of Sunil Kumar Dorhe, Naresh Raj, Ajay Kumarand 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 found not to be originating from the body of the deceased. The aforesaid inference was sought to be further supported by assertions, that the vaginal opening of Aarushi Talwar, at the time of the post mortem examination, was unusuallywide. 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 order dated 9.2.2011, the Magistrate further expressed the view, that influence was allegedly being exerted on behalf of the accused, on the doctor who was conducting the post mortem examination.

Tenthly, based on the statements of Umesh Sharma, Kalpana Mondal, Vimla Sarkar and Punish Tandon, recorded during the course of investigation, itwas sought to be concluded, that the door leading to the terrace of houseno.L-32, Jalvayu Vihar, Sector 25, Noida, had always remained open prior to the date of occurrence. It was gathered there from, that the lock on the door leading to the terrace of the house in question on the date of occurrence, was affixed so that the investigating agency would not immediately recover the body of Hemraj, so as to hamper the investigation.

These facts allegedly spell out the negative role played by Dr. Rajesh Talwar in causing hindrances in the process of investigation. Eleventhly, based 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 stair case 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 inthe room of Hemraj, when the Santro car owned by the Talwars, was given for servicing.

The iron 5 club, which is alleged to be the weapon of crime (which resulted in a V shaped injury on the heads of both Aarushi Talwarand Hemraj), remained untraced during the course of active investigation. The same was recovered from the loft of the house of Dr. Rajesh Talwar, and handed over to the investigating 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 aforesaid conspicuous facts depicted in the order passed by the Magistrate, a large number of other similarly significant facts, have also been recorded, in the order dated 9.2.2011. The same are not being mentioned herein, as the expressive and weighty ones, essential to arrive at a determination on the issue in hand, have already been summarized above. Based inter alia on the inferences and the assumptions noticed above, the Magistrate issued process by summoning Dr. Rajesh Talwar and Dr. Nupur Talwar.

14. The facts noticed in the foregoing paragraph and the impressions drawn thereupon by the Magistrate, are based on statements recorded under Section 161 of Code of Criminal Procedure (and in a few cases, under Section 164 of the Code of Criminal Procedure), as also, on documents and other materials collected during the course of investigation. Neither the aforesaid statements, nor the documents 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 been done in the present case).

Having examined the material on the record, the Magistrate having taken cognizance issued process on 9.2.2011,and while doing so, recorded the following observations in the penultimate paragraphs of summoning order dated 9.2.2011: “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, 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 available in the case diary that appeared to have been caused with a gold 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 the house. On the basis of evidence available in the case diary footprints stained with blood were found in the room of Aarushi 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 Aarushi 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 in side 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 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 vs. State of Rajasthan reported in 2004 AIR 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 the primary ground raised for assailing the order of the Magistrate dated 9.2.2011, it was submitted, that the Magistrate would have arrived at a conclusion, different from the one drawn in the order dated 9.2.2011, if the matter had been examined in its correct perspective, by taking a holistic view of the statements and materials recorded during investigation. It is sought to be canvassed, that a perusal of the impugned order reveals, that too much emphasis was placed on certain incorrect facts, and further, certain vital and relevant facts and materials were overlooked. In sum and substance it was submitted, that if the factual infirmities were corrected, and the facts overlooked were given due weight age, the conclusions drawn by the Magistrate in the order dated9.2.2011, would be liable to be reversed.

To appreciate the instant contention advanced at the hands of 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 and mash door latched from the outside clearly evidenced, that after committing the crime the culprits had bolted the premises from outside. The absurdity in the inference drawn by the Magistrate, it was submitted, was obvious from the fact, that the actual perpetrator of the murders, while escaping from the scene of occurrence, had bolted 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 with in 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 of Hemraj was committed at a place different from the place from where his body was found, is to be accepted as correct. It is sought to be suggested, that the accused cannot, in any case, be associated with the murder of Hemraj. And since, both murders were presumably the handiwork of the same perpetrator(s), the accused could not be associated with the murder of Aarushi Talwar as well. Fifthly, substantial material was placed before the Court to suggest that the purple colored pillow cover belonging to Krishna Thadarai, was found smeared with the blood of Hemraj.

In order to substantiate the instant contention reference was made to the seizure memo pertaining to Krishna Thadarai’s pillow cover, and thereupon, the report of the CFSL dated23.6.2008, as also, the report of the CFSL (Bio Division) dated 30.6.2008depicting, 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 as imilar 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 dated9.2.2011, but also reveals, that the investigation made by the U.P. Police/CBI besides being slipshod and sloppy, can also be stated to have been carried on without due application of mind.

Sixthly, in continuation of the preceding issue canvassed on behalf of the petitioners, it was submitted, that the finding recorded by the CBI in its closure report, that DNA of none of the servants 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 perpetrator(s) to the murders of Aarushi Talwar and Hemraj. It is therefore sought to be canvassed, that the petitioner Dr. Nupur Talwar and her husband Dr. Rajesh Talwar, had unfairly been accused of the crime under reference, even though there was material available to determine the exact identity of the culprit(s) in the matter.

Eighthly, it was submitted, that footprints were found in the bedroom of Aarushi Talwar, i.e., from the room where her dead body was recovered. These footprints according to learned counsel, did not match the footwear impressions of shoes and slippers of Dr. Rajesh Talwar and Dr. Nupur Talwar. This according to the learned counsel for the petitioners also indicates, that neither Dr. Rajesh Talwar nor Dr. Nupur Talwar were involved in the murder of their daughter Aarushi 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 postmortem 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 was submitted, that the aforesaid position came to be substantially altered by the subsequent oral statements made by Dr. Sunil Kumar Dhore. It was submitted, that the different factual position narrated by Dr. Sunil Kumar Dhore, subsequent to the submission of the postmortem report, cannot be taken into consideration. Viewed from the instant perspective, it was also submitted, that the investigating 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 dated16.5.2008. Even though originally Dr. Sunil Kumar Dhore found, that there was no abnormality detected in the private parts of Aarushi Talwar, afterthe 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 there from, 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 a 5iron golf club. It was pointed out, that the 5 iron golf club recovered from the premises of the Talwars, did not have any traces of blood.

It was submitted, that the said golf club as a possible weapon of offence, was introduced by the second team of the CBI in September/October 2009. The Magistrate, according to learned counsel, had erroneously recorded in the impugned order dated 9.2.2011, that experts had opined that the injuries in question (on the heads of Aarushi Talwar and Hemraj) were possible with the golf club in question. It was sought to be highlighted, that no expert had given any such opinion during the entire investigative process, and as such, the finding recorded by the Magistrate was contrary to the record.

Eleventhly, it was asserted, that the Magistrate 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 petitioners (noticed in the foregoing paragraph), cannot be placed on the pedestal of reliable evidence. It is only when statements are recorded in defence, which are tested by way of cross examination, and only after documents and material relied upon (in defence), are proved in accordance with the law, the same would constitute evidence, which can constitute a basis, for determining the factual position in the controversy.

It 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 controversy, at a juncture well before evidence has been recorded by the trial court, would have adverse consequences against one or the other party.

Even though, while dealing with issues as in the instant case, High Courts and this Court have repeatedly observed in their orders, that the trial court would determine the controversy uninfluenced by observations made. Yet, inferences and conclusions drawn by superior courts, on matters which are pending adjudication before trial courts (or other subordinate courts) cannot be easily brushed aside. I shall, therefore, endeavor not to pre-maturely record any inferences which could/would prejudice one or the other side.

17. Having recorded the aforesaid observations, in respect of the submissions advanced at the hands of the 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 dated9.2.2011, 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 204aforementioned 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 warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate of (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

2. No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.

3. In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (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 vs. 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 supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry under Section 202 has been considered.

Amongst those decisions are : Parmanand Brahmachari v. Emperor, AIR 1930 Pat 20; Radha Kishun Sao v. S.K. Misra, AIR 1949 Pat 36; Ramkisto Sahu v. State of Bihar, AIR 1952 Pat 125; Emperor v. J.A. Finan, AIR 1931 Bom 524 and Baidya Nath Singh v. Muspratt, ILR 14 Cal 141. In all these cases, it has been held that the object of the provisions of Section 202 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from 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. vs. State of Karnataka and Anr., (1989) 2 SCC 132, wherein this Court held as under : “(16) 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. 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 given to the police would not alter the situation in any manner. Even if the appellant had preferred a compliant before the learned Magistrate and the Magistrate had ordered investigation under Section 156(3), the police would have had to submit a report under Section 173(2). It has been held in Tula Ram v. Kishore Singh, (1977) 4 SCC 459, that if the police, after making an investigation, send a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190(1)(b) and issue process or in the alternative he can take cognizance of the original complaint and examine 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 vs. 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 notwithstanding the opinion of the police, a Magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding 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. (Dy. Chief Controller of Imports & 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 164thereof), 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 sufficient to proceed against the accused.

Therefore, the order issuing process under Section 204 passed by the Magistrate on 9.2.2011 cannot be faulted on the ground, that it had been passed in violation of the provisions of Code of Criminal Procedure, or in violation of the declared position of law on the subject. Despite my aforesaid conclusion, I reiterate, that the material taken into consideration by the Magistrate will have to be substituted by cogent evidence recorded during the trial; before any inferences, assumptions, views and deductions drawn by the Magistrate, can be made the basis for implicating the accused. As the matter proceeds to the next stage, all the earlier conclusions will stand effaced, and will have to be redrawn, in accordance with law.

19. 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 over looked.

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 vs. 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 of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so.

It would not follow from this, therefore, 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, Cr. P.C. is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made.

Whether the complaint is frivolous or not has, at that stage, necessarily 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 Magistrate is vitiated. In this connection, the observations of this court in Vadilal Panchal v. Dattatraya Dulaji, (1961) 1 SCR 1 at p.9 : (AIR 1960 SC 1113 at p. 1116) may usefully be quoted : “The enquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take 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. vs. 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.

One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that 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 of this case, the High Court erred in holding that the Magistrate had not taken cognizance, and that being a condition precedent, issuance of process was illegal. 11. Counsel for the respondents submitted that cognizance even if taken was improperly taken because the Magistrate had not applied his mind to the facts of the case. According to him, there was no case made out for issuance of process. He submitted that the debtor was the Company itself and Respondent 2 had issued the cheques on behalf of the Company. He had subsequently stopped payment of those cheques.

He, therefore, submitted that the 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 factually unassailable, and the same are also not controvertible, it would, demolish the foundation of the case raised by the prosecution.

The Magistrate may examine such a defence even at the stage of taking cognizance and/or issuing process. But then, this is not the position in the present controversy. The defences raised by the learned counsel for the petitioner are factual in nature. As against the aforesaid defences, learned counsel or the CBI has made detailed submissions. In fact, it was the submission of the learned counsel for the CBI, that the defences raised by the petitioner were merely conjectural. Each of the defences was contested and controverter, on the basis of material on the file. In this case it cannot be said that the defences raised were unassailable and also not controvertable.

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, If in 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 thereupon, the same will be examined on merits, for the exculpation of the accused, if so made out.

20. The submissions dealt with hereinabove constituted the primary basis of challenge, on behalf of the petitioner. Yet, just before the conclusion of the hearing of the matter, learned counsel representing the petitioner stated, that the petitioner would be satisfied even if, keeping in mind the defences raised on behalf of the petitioner, further investigation could be ordered. This according to learned counsel will ensure, that vital aspects of the controversy which had remained unraveled, will be brought out with 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 afore stated 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 dated9.2.2011 before the High Court (vide Criminal Revision Petition no.1127 of2011). 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 Petition no.1127 of 2011). I, there fore, find no merit in the instant contention advanced by the learned counsel for the petitioner.

22. 22. I shall now embark upon the last aspect of the matter, namely, the propriety of the petitioner in filing the instant Review Petition. The parameters within which an order taking cognizance and/or an order issuing process needs to be passed, have already been dealt with above. It is apparent from my determination, that the matter of taking cognizance and/or issuance of notice, is based on the satisfaction of the Magistrate. In the conclusions 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 Appeal vide order dated 6.1.2012this Court in paragraph 11 observed as under : ” 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. ” (emphasis is mine)Thereafter, the matter was disposed of, by this Court, by recording the following observations :

“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 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 the witnesses examined by the police during the investigation and take cognizance of the offence complained of an order the issue of process to the accused. Section 190(1)(b) doest 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 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 the High Court, and more significantly, to the order passed by this Court (dated 6.1.2012)of which review has been sought. No error whatsoever was pointed out in the order passed by this Court on 6.1.2012.

Learned counsel for the CBI during the course of hearing, was therefore fully justified in repeatedly canvassing, that through the instant review petition, the petitioner was not finding fault with the order dated 6.1.2012 (of which review has been sought), but with the order passed by the Magistrate dated 9.2.2011. That, I may say, is correct. The order of this Court did not fall within the realm of the petitioner’s rational acceptability. This, in my view, most certainly amounts to misuse of jurisdiction 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 behalf of the petitioner, as have been noticed above, even though each one of them was sought to be repudiated on behalf of the CBI. I am of the considered view, that the very filing of the instant Review Petition was wholly uncalled for, specially when this Court emphatically pointed out its satisfaction in its earlier order dated 6.1.2012 (which is the subject matter of review) not only in paragraph 11 thereof, but also, for not accepting the prayers made on behalf of the petitioner in 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.

………………J. (Jagdish Singh Khehar)

New Delhi;

June 7, 2012.

Nupur Talwar Vs Central Bureau of Investigation & ANR.

[Review Petition (CRL.) No. 85 of 2012 in Criminal Appeal No.68 of 2012]

O R D E R

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 order, except stating the following few facts: The Magistrate by a detailed order dated 09.02.2011 rejected the closure report submitted by the CBI and took cognizance under Section 190 Cr.P.C. and issued process under Section 204, Cr.P.C. to the petitioner and her husband, Dr. Rajesh Talwar, for the offence of murder of their daughter Aarushi Talwar and their domestic servant Hemraj on 16.05.2008 under Section 302/34 IPC and for the offence of causing disappearance of evidence of offence under Section 201/34 IPC. The order dated 09.02.2011 of the Magistrate was challenged by the petitioner in Criminal Revision No.1127 of 2009 before the High Court of Judicature 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 of2011 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 dated06.01.2011, 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 Cr. P.C. and issuing process under Section 204 Cr.P.C. 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 Cr.P.C. under which the Magistrate issued the process against the petitioner is extracted herein below: “Section 204(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 warrant, or, if he thinks fit, a summons, for causing the accused to be brought 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, Cr.P.C. 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 204Cr.P.C. in a case exclusively triable by the Sessions Court has been laid down by this Court in Kewal Krishan v. Suraj Bhan & Anr. [1980 (Supp) SCC499] this Court thus: “At the stage of Sections 203 and 204, Criminal Procedure Code 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, Criminal Procedure Code, 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 ground for proceeding” against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges. This Court has held in Ramesh Singh case that even at the stage of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, is not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges.

A fortiori, at the stage of Sections 202/204, if there is prima 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 Cr.P.C. 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, Cr.P.C.

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 had the Magistrate considered all the relevant materials, she would have come to the conclusion that sufficient grounds did not exist for proceeding against the petitioner and her husband and would have directed further investigation as prayed by Dr. Rajesh Talwar, but unfortunately the order dated 09.02.2011 does not disclose that the Magistrate considered all relevant materials collected during investigation.

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 Cr.P.C., 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, Cr.P.C. 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 U.P. Pollution Control Board v. Mohan Meakins Ltd. & Ors. [(2000) 3 SCC 745] and Deputy Chief Controller of Improts & Exports v. Roshallal Agarwal & Ors. [(2003) 4 SCC 139] this Court has held that the Magistrate is not required to record reasons at the stage of issuing the process against the accused. In the absence of any legal requirement in Section 204 Cr.P.C. to issue process, it was not legally necessary for the Magistrate to have given detailed reasons in her order dated 09.02.2011 for issuing process to the petitioner and her husband Dr. Rajesh Talwar.

8. The fact, however, remains that the Magistrate has given detailed reasons in the order dated 09.02.2011 issuing process and the order dated 09.02.2011 itself does not disclose that the Magistrate has 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 & Ors. [(1976) 3 SCC 736] that whether the reasons given by the Magistrate issuing process under Section 202 or 204 Cr.P.C. 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 Cr.P.C when the order issuing process under Section 204 Cr.P.C. 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 Cr.P.C. In the present case, the High Court has not examined whether there were materials before the Magistrate to take a view that there was sufficient ground for proceeding against the petitioner and her husband, but while hearing the Review Petition, we have perused the relevant materials collected in the course of the investigation and we cannot hold that the opinion of the Magistrate that there was sufficient ground to proceed against the petitioner and her husband under Section 204 Cr.P.C 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 Cr.P.C. 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 & Ors. [(1977) 2 SCC 699] in which the High Court in exercise of its power under Section 482 Cr.P.C. 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 State of Karnataka v. L. Muniswamy & Ors. (supra) does not relate to a case at the stage of issue of process by the Magistrate under Section 204 Cr.P.C., and as the facts of that case indicate, that was a case where the High Court was of the view that the material on which the prosecution proposed to rely against the respondents in that case was wholly inadequate to sustain the charge against them in the case which was pending before the Sessions Court. As has been clarified by this Court in Kewal Krishan v. Suraj Bhan & Anr. (supra), at the stage of Section 204 Cr.P.C. the standard to be adopted by the Magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing of charges by the Sessions Court.

10. The result of the aforesaid discussion is that the order dated 09.02.2011 of the Magistrate taking cognizance under Section 190 Cr.P.C. and issuing process against the petitioner and her husband under Section 204 Cr.P.C. 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 Cr.P.C., he cannot order of his own further investigation in the case under Section 156(3) Cr.P.C. but if subsequently the Sessions Court passes an order discharging the accused persons, further investigation by the police on its own would be permissible, which may also result in submission of fresh charge-sheet.

11. For these reasons, I agree with my learned brother Khehar, J. that this Review Petition has no merit and should be dismissed.

                                                                                                         ………………………..J. (A. K.Patnaik)

New Delhi,

June 07, 2012

Recalling or Reviewing an Order by Criminal Court

Law Library

Capture-min

Magistrate and Sessions Court

 Bindesi-Iwari Prasad Singh vs Kali Singh[citations: 1977 AIR 2432, 1977 SCR (1) 125]

There is absolutely no provision in the Code of Criminal Procedure of 1908 (which applies to this case) empowering a Magistrate to. review or recall an order passed by him. Code of Criminal Procedure does contain a provision for inherent powers, namely, Section 561-A which, however, confers these powers on the High Court and the High Court alone. Unlike Section 151 of Civil Procedure Code, the subordinate criminal courts have no inherent powers. In these circumstances, there- fore, the learned Magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. The remedy of the respondent was to move the Sessions Judge or the High Court in revision. In fact after having passed the order dated 23-11-1968, the Sub-Divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever. In these circumstances, therefore, the order even if there be one, recalling order dismissing the complaint, was entirely without jurisdiction.

This being the position, all subsequent proceedings follow- ing upon recalling the said order,would fall to the ground including order dated 3-5-1972 summoning the accused which must also be treated to be a nullity and destitute of any legal effect.

Devider

High Court

Devider

Supreme Court

Devider