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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Special Leave Petition (Crl.) No.7966 of 2013

Dr. Rajesh Talwar & Anr.        … Petitioners           

Versus

C.B.I. & Anr.         …Respondents

O R D E R

S.A BOBDE, J.

1. This  special  leave  petition  has  been  preferred  against  the  

impugned judgment  dated 19.7.2013,  passed  by the High Court  of  

Judicature at Allahabad in Application under Section 482 No.20215 of  

2013  whereby  the  petitioners’  prayer  for  documents  pertaining  to  

scientific  tests  made  in  their  application  405/Kha  dated  11.6.2013  

filed  under  Section  233  of  the  Code  of  Criminal  Procedure,  1973  

(hereinafter referred to as ‘Cr.PC’) read with Section 91 was rejected.

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2. The petitioners are being tried for charges of committing the  

murder of their daughter Arushi and their domestic helper Hemraj in  

their house. At the initial stage, the investigation was conducted  by  

the U.P. Police, however, it was later transferred to the Central Bureau  

of  Investigation  (hereinafter  referred  to  as  the  ‘CBI’).   A  closure  

report was submitted before the Magistrate who disagreed with it and  

has issued the process to the petitioners for the charge of committing  

the double murder.

3. The  present  stage  of  the  trial  is  that  the  evidence  of  the  

prosecution  is  closed  and  the  statements  of  the  accused  are  being  

recorded under Section 313 Cr.PC.  The application in question under  

Section 311 for examining 7 other left over witnesses was moved at  

this  stage.   Alongwith  this  application,  another  application  under  

Section  233  Cr.PC  read  with  Section  91  has  been  moved  on  

11.6.2013, in respect  of the reports of certain tests conducted on 3  

persons  who at  one time were suspected  accused and had been in  

police custody, namely, Krishna, Raj Kumar and Vijay Mandal.  By  

this application, the petitioners’ sought the following reports:

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(i) Narco-analysis test reports and CD of Krishna conducted at FSL  

Bangalore;  

(ii) Narco-analysis test reports and CD of Rajkumar conducted at FSL  

Bangalore;  

(iii) Narco-analysis test reports and CD of Vijay Mandal conducted at  

FSL Bangalore;  

(iv) Brain mapping test of Rajkumar conducted at FSL Gandhinagar;  

(v) Brain mapping test of Krishna conducted at Bangalore;  

(vi) Brain mapping test of Vijay Mandal conducted at Bangalore;  

(vii) Lie detector, polygraph test reports of Krishna, Raj Kumar and  

Vijay Mandal conducted at CFSL New Delhi, FSL Bangalore, FSL  

Gandhinagar;  

(viii) Psychological analysis test reports of Krishna, Raj Kumar and  

Vijay  Mandal  conducted  at  AIIMS,  FSL  Bangalore,  FSL  

Gandhinagar.  

(ix) The Narco-analysis test, brain mapping test, polygraph test and  

the psychological tests done at AIIMS, CFSL New Delhi and at FSL  

Gandhinagar  of  the  accused  Dr.  Rajesh  Talwar  and  Mrs.  Nupur  

Talwar.  

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x) The written opinion /  report and its annexures and other related  

documents dated 31.7.2008 of the postmortem doctors i.e. Dr. Sunil  

Dohre and Dr. Naresh Raj regarding inspection and examination of  

the then murder weapon (Khukhri) sent to them by the CBI.

In  addition,  applicants  also  asked  for  call  records,  material  

forming the basis of report prepared by PW.6 and sound simulation  

test reports.

4. These applications were disposed of by the trial Court by order  

dated 18.6.2013 allowing them partly.

5. Before the High Court, it was contended by the petitioners that  

the said reports are essential for the defence since they pertain to those  

persons who were at one time suspected as being responsible for the  

offence and contain exculpatory statements favouring the petitioners.  

According to the petitioners, it is only upon examination of the reports  

by the Court that the petitioners will be able to put up their plea that  

the crime, in fact, may have been committed by Krishna, Raj Kumar  

and Vijay Mandal who were earlier suspected of the offence and had  

been interrogated.  The High Court inter-alia rejected the petitioners’  

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prayer on the ground that the application is vexatious and intended to  

only delay the proceedings as was also found by the trial Court.

6. Before  us,  Shri  U.U.  Lalit,  learned  Senior  counsel  for  the  

petitioners submitted that the production of the reports pertaining to  

the  abovenamed  3  persons  is  absolutely  essential  and  relying  on  

Section 91 Cr.PC, submitted that the production of these reports being  

relevant, the prayer ought to have been allowed by the High Court.  

According to Shri Lalit,  the reports,  if  produced, would not breach  

either Article 21 read with Article 20(3) which protects the accused  

from self-incrimination and/or would not be hit by Section 21 of the  

Evidence Act since the persons in respect of whom those reports have  

been prepared are not accused anymore.  In any case, according to the  

learned counsel, the reason given by the High Court that such reports  

having been prepared on the basis of statements and data collected in  

contravention of Article 20 are premature and this could only have  

been found after the reports were produced in courts.

7. Shri  Siddharth Luthra,  learned ASG vehemently opposed the  

prayer and submitted that the production of these reports is pointless  

in view of the law laid down by this Court in Selvi & Ors. v. State of  

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Karnataka (2010) 7 SCC 263, wherein such reports are held to be  

inadmissible in evidence.  The learned ASG further submitted that the  

timing of the application and the stage at which it was made clearly  

shows that the applications are vexatious and intended to delay the  

proceedings  which  are  at  a  concluding  stage.   In  support  of  his  

contention, Shri Luthra relied on sequence of events which according  

to him show that the petitioners have at every stage tried to delay the  

proceedings by making one application after the other.  The learned  

counsel further submitted that even the present special leave petition  

is  delayed  in  view  of  the  fact  that  it  is  preferred  on  the  file  on  

18.9.2013 against the judgment of the Allahabad High Court which  

was passed on 19.7.2013.  The order of the trial Court was, in fact,  

passed on 18.6.2013.

8. Shri Lalit, learned Senior counsel for the petitioners submitted  

that  the  petitioners  have  been  occupied  in  the  trial  and  could  not  

challenge the order of the High Court earlier.

9. After considering the rival submissions on this point, we find  

no merit in the contention on behalf of the petitioners that they could  

not have approached this Court earlier.  There is no reason why the  

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petitioners  ought  to  have  waited  from  19.7.2013  to  17.9.2013  to  

approach this Court and allowed the trial to proceed even further.  We  

make this  observation in  the background of  the observation of  the  

High Court  that  even the initial  applications  were made at  a  stage  

where the prosecution evidence had been concluded and the defence  

had entered and almost concluded its evidence.  In fact, the petitioners  

had,  without  raising  any  objection  that  the  reports  and  documents  

allegedly proved by the witnesses have not been supplied to them or  

made part of the Court record, participated in the examination and  

cross-examination  of  two witnesses.   We might  note  that  criminal  

courts are not obliged to accede to the request made by any party to  

entertain and allow application for additional evidence and in fact, are  

bound in terms of Section 233(3) Cr.PC. to refuse such request if it  

appears that they are made in order to vex the proceedings or delay  

the same. It is also pertinent to mention here that the learned Trial  

Judge who has been conducting the trial is likely to retire very soon.  

Relevant part of the Trial Court proceedings as well as Trial Court’s  

orders thereto are given as under:

a. Accused filed application dated 22.07.2013 in Trial Court for  

adjournment  to  produce  their  defence  witness.   They  moved  

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application  dated  06.8.2013 in  Trial  Court  for  direction  to  CBI  to  

produce document, Tabulated chart etc.  

b. Trial  Court  passed  order  dated  12.08.2013  rejecting  the  

application for supplying of tabular charts.  

c. Accused moved application dated 02.09.2013 in Trial Court to  

call PW-6 Dr.B.K.Mahapatra, CFSL, Bio Division, to file an affidavit.  

d. Trial Court passed order dated 03.09.2013 rejecting the prayer  

to call upon Dr.B.K.Mahapatra to file affidavit.  

e. Trial Court passed order dated 03.09.2013 directing the accused  

to produce the defence witnesses from foreign  country on the next  

date or through video conferencing.  

f. Accused moved application dated 07.09.2013 for adjournment  

to produce defence witness from foreign country.  

g. Accused moved application dated 12.09.2013 in Trial  Court for  

exhibiting documents.  

h. Accused moved application to recall Dr. B.K. Mahapatra for his  

further cross examination.  

i. Seventh DW examined.  

j. Accused filed another application for re-examination of DW-7  

(Dr.Andrei Semikhodskii).  

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k. Trial  Court  dismissed  the  aforesaid  application  for  re-

examination  of  Dr.B.K.Mahapatra  and  posted  the  case  for  final  

arguments i.e stage of 233 Cr.P.C. is crossed.  

It may be pertinent to note that petitioners took 04 months to  

produce  7  DWs after  the  closing  of  statement  u/s  313  Cr.PC.  On  

25.09.2013 case  was  fixed for  final  arguments  but  accused moved  

applications u/s 233 Cr.PC.  

l. Accused moved application U/s 233 Cr.P.C. dated 26.09.2013  

in  Trial  Court  to  send  physical  exhibit  Khukri  abroad  for  re-

examination.  

m. Trial  Court  passed  order  dated  28.09.2013  dismissing  the  

aforesaid application.  

n. Accused moved application U/s 233 Cr.P.C. dated 30.09.2013  

in Trial Court to file disclosure statements of Krishna, Vijay Mandal  

and  Rajkumar.  Case  adjourned  to  1.10.2013  for  objections  and  

arguments on the application. Petitioners moved another application  

U/s  233  Cr.P.C.  dated  30.09.2013  in  Trial  Court  for  summoning  

witnesses of lOs of CBI, UP Police and private persons as defence  

witnesses. Case adjourned to 1.10.2013 for objections and arguments  

on the application.  

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o. On 1.10.2013, petitioners did not argue the applications and one  

lawyer  informed  the  court  that  their  counsel  is  ill  and  obtained  

adjournment.

10. This  Court  in  Selvi  J.  Jayalalithaa  &  Ors.  v.  State  of  

Karnataka & Ors. (Writ Petition (Crl.) No.154 of 2013) decided on  

30.9.2013, after referring to its earlier judgments in Smt. Triveniben  

v. State of Gujarat, AIR 1989 SC 1335; Zahira Habibullah Sheikh  

(5) v. State of Gujarat, AIR 2006 SC 1367; Capt. Amarinder Singh  

v. Parkash Singh Badal & Ors., (2009) 6 SCC 260; Mohd. Hussain  

@ Julfikar Ali v. State (Govt. of NCT of Delhi), AIR 2012 SC 750;  

and Natasha Singh v. CBI, (2013) 5 SCC 741, dealt with the issue of  

fair trial observing:   

“Fair  trial  is  the  main  object  of  criminal  procedure and such fairness should not be hampered  or  threatened in  any manner.  Fair  trial  entails  the  interests  of  the  accused,  the  victim  and  of  the  society.  Thus,  fair trial  must be accorded to every  accused in the spirit  of  right  to life and personal  liberty and the accused must get a free and fair, just  and  reasonable  trial  on  the  charge  imputed  in  a  criminal  case.  Any  breach  or  violation  of  public  rights and duties adversely affects the community as  a  whole  and it  becomes harmful  to  the society in  general.  In all circumstances, the courts have a duty  to maintain public confidence in the administration  of justice and such duty is to vindicate and uphold  

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the ‘majesty of the law’ and the courts cannot turn a  blind  eye  to  vexatious  or  oppressive  conduct  that  occurs in relation to criminal proceedings.  

  Denial of a fair trial is as much injustice to the  accused  as  is  to  the  victim  and  the  society.  It  necessarily requires a trial before an impartial judge,  a fair prosecutor and an atmosphere of judicial calm.  Since the object of the trial is to mete out justice and  to  convict  the guilty and protect  the innocent,  the  trial should be a search for the truth and not a bout  over  technicalities  and  must  be  conducted  under  such rules as will protect the innocent and punish the  guilty. Justice  should not only be done but should  be seem to have been done. Therefore, free and fair  trial  is  a  sine  qua  non  of  Article  21  of  the  Constitution.  Right to get a fair trial is not only a  basic  fundamental  right  but  a  human  right  also.  Therefore,  any  hindrance  in  a  fair  trial  could  be  violative of Article 14 of the Constitution.

xx xx xx xx

Article  12  of  the  Universal  Declaration  of  Human Rights provides for the right to a fair trial  what is enshrined in Article 21 of our Constitution.  Therefore,  fair  trial  is  the  heart  of  criminal  jurisprudence and, in a way, an important facet of a  democratic polity and is governed by rule of  law.  Denial of fair trial is crucifixion of human rights.”    

11. Thus, from the afore-stated facts, it is evident that petitioners  

have been adopting dilatory tactics on every moment. The impugned  

order was passed on 19.7.2013. This petition was filed after about two  

months.  

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12. In view of the above, we are of the considered opinion that facts  

and circumstances of the case do not warrant any interference. The  

special leave petition is accordingly dismissed.  

.........................………………..J.                                             (DR. B.S. CHAUHAN)

.............………………………J.                          (S.A. BOBDE)

New Delhi, October 8, 2013  

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