SC to look into scope of magistrate's order on cognizance of offence

New Delhi -  The Supreme Court Friday said that it would examine the nature and scope of a magistrate's order while taking cognizance of an offence, more so when the court is  confronted with the report of the investigating agency seeking the closure of the case.

Taking note of the long order passed by a magistrate rejecting the Central Bureau of Investigation's closure report and taking cognizance against Rajesh and Nupur Talwar in Aarushi  Tawlar-Hemraj double murder case, a bench of Justice A.K. Patnaik and Justice Jagdish Singh Khehar said: "We are looking at a larger question. Look at the consequences of a long order.

You will have to see the larger angle of prosecution and defence."

Justice Patnaik said: "If you start giving long and substantive reasons then it would create a problem as in this case."

The law is that if there is to be an order of prosecution, all that needed to be said is that there is enough evidence, the court said.

The court's observations came in the course of the hearing of a petition by Nupur Talwar seeking the review of the apex court Jan 6, 2012 verdict, by which it had asked the dentist couple to  face trial. The court cited the long order by the Ghaziabad magistrate rejecting CBI's closure report and taking cognizanceagainst the dentists' couple.

The CBI, in December 2010, filed a closure report in the double murder case before the magistrate's court in Ghaziabad.

The Talwars are facing charges of murder, conspiracy and destruction of evidence.

Responding to the observation by the bench, senior counsel Siddharth Luthra, appearing for CBI, told the court: "If reason (rejecting the closure report and taking cognizance) is not given,

there is no problem and if given, it will not cause any abrasion."

While rejecting the closure report, Luthra told the court that when magistrate looks at the material on the record and decides, then "it will find reflection in the order".

He said that even if there was something contentious in the magistrate's order, it would be taken care of by the sessions court which would examine the whole material independently after

hearing both the sides.

In the course of the hearing, Justice Khehar asked senior counsel Harish Salve, who appeared for Nupur Talwar, whether he would like the court to decide on the merits of the material

before the trial court as raised by him.

Asking Salve to take instruction from his client, Justice Khehar said: "Once you make a submission, then we have to deal with it. It can't be that we hear the arguments and don't address

them."

Luthra will continue his arguments May 16.

Aarushi,14, was found murdered in the Talwars' Noida residence on May 16, 2008. The body of their domestic help Hemraj was found the next day from the terrace of the house.