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  1. 1. http://www.supremelaw.in/2012/02/tn-godavarman-thirumulpad-vs-union-of.html Oneindia hindi -----Noida double murder case From Wikipedia, the free encyclopedia Jump to: navigation, search Whether to make the |reason= mandatory for the {{cleanup}} template is being dis cussed. See the request for comment to help reach a consensus. This article may require cleanup to meet Wikipedia's quality standards. (Consider using more specific cleanup instructions.) Please help improve this ar ticle if you can. The talk page may contain suggestions. (March 2011) Unbalanced scales.svg The neutrality of this article is disputed. Please see the discussion on the talk page. Please do not remove this message until the dispute is resolved. (March 2011) Globe icon The examples and perspective in this article or section might have an ex tensive bias or disproportional coverage towards one or more specific regions. P lease improve this article or discuss the issue on the talk page. On May 16, 2008, Aarushi Talwar, a 14-year-old Class IX student of Delhi Public School in Noida and the daughter of a successful dentist couple, was found dead with her throat slit in her parents' home at Jalvayu Vihar in [Noida, Uttar Prad esh]. Suspicion initially fell on the family's live-in manservant Hemraj, who wa s missing. Noida police declared him the prime suspect. However the following da y, following a trail of blood, in the Talwar's home, police found the dead body Hemraj on the terrace. After a disorganized investigation, the police arrested D r. Rajesh Talwar, the father of the deceased girl on May 23, 2008, charging him with having committed the double murder. He confessed to killing Aarushi and Hem raj to the Police on the night of his arrest but later retracted his confession. His wife, Dr. Nupur Talwar(Arushi Talwar s mother, runs a dental clinic), accused the Noida police of framing him, and requested Uttar Pradesh chief minister May awati to transfer the case to the Central Bureau of Investigation (CBI).This was done at the behest of the media attention on the case. Furthermore there were r eports of the case being handed over to the CBI. The Central Bureau of Investigation took over the investigation into the murders of Aarushi and Hemraj on June 1, 2008, forming a 25-member team in an attempt t o crack the case. Soon after the CBI took over the case, Uttar Pradesh chief min ister Mayawati gave transfer orders to senior police officers who were part of t he Special Investigation Team (SIT) that had previously been in charge of the in vestigation, including the Noida Senior Superintendent of Police, Satish Ganesh, and Meerut Inspector General, Gurdarshan Singh. and family In addition, the dep utation of CBI officer Arun Kumar, formerly a member of the Uttar Pradesh Police , who was in charge of the investigation also ended in July, 2008.[1] Contents [hide] 1 2 3 4 5 6 Significance of the Case CBI: Getting there CBI Investigation Timeline of the Case References See also [edit] Significance of the Case The case received nationwide attention, and has become symptomatic of what most people believe are recent unsavoury tendencies in the Indian media, such as sens ationalism, the urge to "overkill" and to carry out a public trial-by-media.[2]
  2. 2. The Union Minister for Women and Child Development, Renuka Chowdhury, condemned the police for what she called the "character assassination" of a child victim a nd called for a commission of legal experts to investigate whether specific legi slation existed or needed to passed in order to allow filing of defamation suits against the Noida police, a government agency.[3] In addition, the focus by 24hour cable news on speculative aspects of the personal lives of the father and h is dead daughter, and the media frenzy that compromised the privacy of the famil ies involved in the case has caused comparisons to be made to the JonBenet Ramse y case in the United States.[4] The case has also attracted a lot of public atte ntion as a bizarre whodunit,[5] with the CBI reporting that the agency had been receiving a large number of telephone calls from members of the general public, giving investigators ideas and advice on how to solve the case. [6] I n addition, the story hit the blogosphere in a major way with many Indian bloggers avidly a nd enthusiastically blogging about the murder mystery[7] The remainder of this article (content appearing below) may require clea nup to meet Wikipedia's quality standards. Please improve this article if you ca n, and move or remove this notice if appropriate. (July 2010) [edit] CBI: Getting there This article contains too many or too-lengthy quotations for an encyclop edic entry. Please help improve the article by editing it to take facts from exc essively quoted material and rewrite them as sourced original prose. Consider tr ansferring direct quotations to Wikiquote. (July 2010) [edit] CBI Investigation CBI investigators charged the Noida police with a shoddy investigation, which, i t claimed, had resulted in the destruction of 90% of the evidence on the crime s cene. Aside from not capturing the finger prints on the whisky bottles in Hemraj's roo m, the police allowed the media to freely roam the crime scene rather than restr icting access to the flat. In addition, the police allowed doctors, not specifically trained in forensic pa thology, to conduct the autopsies of Hemraj and Aarushi. While it is established procedure to lift fingerprints (of both murderers and victims) from the skin of the victims.[8] the doctors entrusted with the autopsies neglected to call fore nsic scientists to lift fingerprints from the cadavers. On August 11, 2008, the CBI reported that it had evidence pointing to the presence of a fifth person in the house at the time of the murders, as finger prints not matching any of the s uspects or occupants of the house were found on the whisky bottles. Experts at the All India Institute of Medical Sciences (AIIMS), who are working closely with the CBI, have raised questions over one entry in Arushi s post mortem report. The report, dated May 16 and prepared by Sunil Dore for the Noida polic e, mentions whitish discharge from the vagina which AIIMS doctors say wasn t investi gated. They have raised this issue with the CBI. It is the duty of the doctors and the investigating officer to collect all biolog ical evidence. As per law, it is mandatory to write about it in the post mortem report which is legal evidence. But in this case no further investigation was do ne on the evidence that they got from natural orifices, Sudhir Gupta, associate p rofessor, forensic medicine, AIIMS, told The Indian Express. The post mortem report says that various organs including stomach with contents, samples from small intestine, gall bladder, spleen and one kidney were preserve d, sealed and sent for examination to rule out poisoning. However, the report doesn t mention whether a vaginal swab was sent for further inv estigation, said Gupta. The whitish discharge could be attributed to several cause s, from a fungal infection, common at this age, to even sexual assault. But in a
  3. 3. murder case, this was a serious biological finding which required deliberation. No such type of biological evidence was collected and sealed by the doctor who prepared the autopsy, he added. Sources in the agency emphasised that unlike in an "unoccured case" where a clos ure report is filed because the incident under investigation was not found to ha ve occurred, the report filed in the Aarushi case does not shut the possibility of renewed investigation if a new, strong evidence comes up. Pinaki Mishra, Dr T alwar's counsel, strongly reacted to the closure report, calling it a pack of in nuendos. "This is the most unfair verdict that could have been given. They (Talw ars) are being pronounced guilty until proved innocent. Without having filed a c hargesheet, the CBI is condemning them to live the life of a guilty. I have no d oubt that the entire investigation is derailed by taking the line of UP police just damn them without evidence," he said. The CBI does not debunk the defence of Talwars completely, with sources acknowle dging that the probe failed to establish the motive behind the murder. They also said the dummy run conducted by them to verify Talwars' claim that they could n ot have heard of what was happening in the next room because of noise from their AC, shows that they could have slept through the crime. It also says the narco tests run on the couple show only "minor deceptions". But the report lists "circ umstantial evidence" to say why they continue to treat Dr Rajesh Talwar as the p rime suspect in the case. Sources claim the "circumstantial evidence" is so stro ng that Dr Talwar could have been chargesheeted had he not been a parent. The cl osure report says the crime scene was "dressed up" before the police was called so mething that is not associated with a regular criminal. Sources said that Noida police's failure to secure the crime scene was another r eason why the agency was left only with circumstantial evidence. Blood stain on the whisky bottle found in Talwars' house did not match the samples of either Aa rushi or Hemraj. The report asserts that both Aarushi and Hemraj died of injurie s from a blunt weapon, and that the cuts on their neck were inflicted when they were already dead. [edit] Timeline of the Case May 16, 2008 Aarushi Talwar, daughter of a dentist couple, found dead with her throat sli t in the bedroom of her flat in Jalvayu Vihar. Based on the Talwars' claim, missing domestic help Hemraj (Nepalese national ) suspected of murder. May 17, 2008 Hemraj's body found on the terrace of Talwar's house. Noida Sector- 20 police Station Officer (S.O.) Dataram Nauneria shifted for l apses in investigations. Autopsy report rules out sexual assault. May 18, 2008 Delhi Police join murder probe; police say murder committed by a "doctor or a butcher". May 22, 2008 Family under suspicion; honor killing angle probed Police quiz Aarushi's close friend, whom she spoke to 688 times in the 45 da ys preceding her murder.
  4. 4. May 23, 2008 Aarushi's father Dr. Rajesh Talwar arrested for the two murders. June 13, 2008 The Nepalese compounder of Dr. Rajesh Talwar, Krishna (alias Kishan) arreste d by CBI. The arrest follows polygraph test and Narco Analysis test at Forensic Science Laboratory (FSL), Bangalore the day before. He was earlier subjected to polygraph test twice at Central Forensic Science Laboratory (CFSL), Delhi as wel l as psychological assessment test at AIIMS, New Delhi on June 9, 2008; based on the test results, CBI arrested Krishna. June 14, 2008 Krishna the compounder of Dr. Rajesh Talwar produced before the duty magistr ate, district courts, Ghaziabad. CBI requests for 14 days police custody of Kris hna for further investigation. The Magistrate grants 3 days police custody reman d. He is to be produced before the Special Magistrate for CBI cases at Ghaziabad on June 17, 2008. A CBI team had earlier conducted a search at Krishna's former premises at Jalvayu Vihar, Noida and seized some clothing and other materials f or forensic examination. Rajkumar, the Nepalese domestic help of the Duranis, wa s subjected to polygraph test at CFSL, Delhi. June 19, 2008 Judicial custody of Dr. Rajesh Talwar extended up to July 2, 2008. An applic ation is moved for a second lie detection test of Dr. Rajesh Talwar, as his firs t lie detection test remained inconclusive. A lie detector test is also conducte d on Vijay Mandal, the domestic help of a neighbor of the Talwars. June 17, 2008 Krishna produced before special magistrate, CBI court, Ghaziabad. CBI applie s for further 11 days police custody remand to continue the investigation. The m agistrate grants 6 days police custody. He is to be produced before the CBI magi strate, Ghaziabad on June 23, 2008. A team accompanied by a forensic expert search the room where Rajkumar used to live in Sector 53, Noida. Material seized from the room on June 13, 2008 is f orensically examined. June 20, 2008 Lie detection test of Dr. Rajesh Talwar conducted at CFSL, Delhi. June 23, 2008 Krishna produced before the special magistrate, CBI courts, Ghaziabad. CBI r equests further custody of Krishna for 4 days for further interrogation and reco very of weapon. The magistrate passes an order extending his police custody by 4 days. He is to be produced before the Court on June 27, 2008. June 25, 2008 Second lie detection test conducted on Dr. Nupur Talwar. Her first lie detec tion test was found inconclusive. June 26, 2008 The CBI declares the case to be a "blind case". Dr. Rajesh Talwar refused ba
  5. 5. il by the special magistrate, CBI courts, Ghaziabad. June 27, 2008 Krishna taken to Talwars' residence by the CBI and thereafter produced befor e the special magistrate, where his bail plea is rejected once again. The Talwar s' family friends Duranis' Nepalese domestic help Rajkumar arrested on the suspi cion of involvement in the murder. Washed T-shirts with faint human blood stains seized and sent for DNA matching. However, the Duranis (doctors themselves) mai ntain that the stains could be from the boils that Rajkumar had on his body. Raj kumar had already been subjected to polygraph test, psychological assessment, br ain mapping and narco analysis at FSL, Gandhinagar from June 23 to June 26, 2008 . June 28, 2008 Rajkumar produced before special magistrate, CBI court, Ghaziabad and is sen t to police custody for 14 days. June 30, 2008 Krishna's lawyer approaches a Ghaziabad court for bail. Bail is refused as t he court that was approached does not have sufficient powers in this case. CBI joint director in charge of the investigation, Arun Kumar, is recalled t o his original cadre in Uttar Pradesh. June 31, 2008 News channel AAJ TAK, airs reports that Vijay Mandal, a new face, is also in volved in the Noida double murder. July 2, 2008 Dr. Rajesh Talwar is produced before special magistrate, CBI court, Ghaziaba d again. His bail plea is rejected and his judicial custody extended till July 1 1, 2008. CBI says he is still among the suspects. July 3, 2008 The Supreme court of India rejects a public interest litigation (PIL) case c hallenging the administration of narco-analysis test on the accused. A bench hea ded by Justice Altamas Kabir refuses to hear the petion, as the petitioner, a la wyers' body, was an unregistered entity. July 6, 2008 An English daily [9] reveals that on the night the murders were committed, t he couple Dr. Rajesh and Dr. Nupur left their flat around midnight and came back around 5 AM. They were at a high society party for which 12 suites were booked in a posh South Delhi hotel. July 7, 2008 Dr. Nupur Talwar refuses the allegations regarding their absence on the nigh t of the murders. She also expresses her intention to take legal action against the media house. CBI releases an official statement on their site, stating, "A section of med ia has reported quoting CBI sources that Dr. Rajesh Talwar and Dr. Nupur Talwar were not present in their house on the night of 15th May, 2008 and more than a d ozen rooms were booked in a hotel in Delhi. It is clarified that the news item i
  6. 6. s speculative and not true. Investigation of the case is progressing diligently. " Some other TV channels debate the merits of her and CBI's affirmations in th e light of glaring gaps in the Talwars' story. July 9, 2008 Rajkumar, the domestic help of the Durranis, is subjected by CBI to a second narco-analysis test at FSL[disambiguation needed ] Bangalore. July 10, 2008 News reports on some TV channels suggest that the CBI has had a breakthrough on Rajkumar as the culprit and has confessed during the narco-analysis test. He is learned to have committed the murder along with Krishna, Sambhu and Hemraj. The reason for the first murder, as told by Rajkumar, was lust and Hemraj was ki lled for fear that he might have disclosed information. July 11, 2008 Vijay Mandal (alias Sambhu) the servant one of the neighbors of the Talwars is arrested by the CBI. In a press conference, Arun Kumar, Joint Director CBI, states that the CBI i s awaiting DNA matching of washed blood stains on Rajkumar's T-shirts. He confir ms that the CBI still considered this a blind case and expresses the hope that t he case will be solved soon. Dr. Rajesh Talwar and Krishna appear before a special CBI court, Ghaziabad t o seek bail. Their petitions are heard and Dr. Rajesh Talwar is released on bail , for lack of evidence. Eminent criminal lawyer R. K. Anand undertakes the defen ce of Krishna. CBI believes two or three domestic helps and Krishna to be the prime suspect s. However, the forensic evidence is not admissible as evidence in the court. The murder weapon and the two cellphones respectively of Aarushi and Hemraj are still missing. July 12, 2008 Dr. Rajesh Talwar is freed on bail from the Dasna Jail in Ghaziabad. The new s of his release brings back widespread media attention to the case. Vijay Mandal is sent to 3-days' CBI custody by the court of additional chief judicial magistrate Dinesh Kumar in Ghaziabad.[10] Vijay Mandal has been accuse d under 302, 201, 120(B) of the Indian Penal Code (IPC). July 15, 2008 Vijay Mandal's police custody extended for four more days.[11] The CBI expec ted to find the murder weapon and the cellphones of Aarushi and Hemraj with Mand al's help. July 16, 2008 An association of Nepalese citizens alleges that Krishna and Rajkumar are be ing pressurized to make confessional statements.[12] July 18, 2008 CBI has not seized any evidence and is yet to receive a crucial forensic rep ort on accused Rajkumar, according to media reports. It has weakened the case ag ainst the three prime suspects Krishna, Rajkumar and Vijay Mandal. The CBI claim s near closing of the case when preliminary reports from Hyderabad's Centre for
  7. 7. DNA Fingerprinting and Diagnostics, suggests that identifying the blood on the T -shirt "may or may not be possible", according to media reports.[13] Separating DNA from garments after a lapse of two months is not always possible, because of the disintegration of the red blood cells on the cloth. July 19, 2008 Vijay Mandal sent into police custody for four more days. July 21 Rastriya Jana Morcha (RJM) chairman Chitra Bahadur K.C. alleges that the two Nepalese nationals Krishna Thapa and Rajkumar were falsely accused by the CBI i n the case,[14] in order to save Dr. Rajesh Talwar. The party has decided to rai se the issue in the Nepalese parliament. The party will also approach the Nepale se government and the national human rights commission to save the two. July 22, 2008 A bench comprising Justice Altmas Kabir and Justice Markandey Katju of the s upreme court of India instructs the media to be careful[15] in the context of th e hearing of a public interest lawsuit that has raised questions on the media co verage of the high-profile murder case. In the probe, the character of the victi m's parents was hotly debated, especially that of Aarushi's father Rajesh Talwar who was arrested initially as the main accused. However, no adverse observation s were made about the compounder Krishna and the other two domestic helps Rajkum ar and Vijay Mandal. A distinction seems to have been made according to the accu sed persons' class and national identities. July 25, 2008 The Police custody of the accused Krishna, Rajkumar and Vijay Mandal is exte nded till August 8. The three accused are brought to the Ghaziabad court handcuf fed and linked by a rope. The judge objects to the inhuman treatment of the accu sed and the police officer tenders his apologies.[16] July 31, 2008 A illed e are many Hindi channel Aaj Tak airs a news report alleging that Vijay Mandal was dr with leading information, prior to the narco-analysis tests. Further, ther allegations that Mandal's confessions during the narco-analysis tests have gaps. August 8, 2008 The Police custody of the accused Krishna, Rajkumar and Vijay Mandal is exte nded for 14 more days, as they are now considered the prime accused. August 9, 2008 CBI director Ashwani Kumar says [17] the case is still unsolved, as many imp ortant corroborative pieces of evidence are yet to be found. However, he fully a ccepts that it is important that Dr. Rajesh Talwar be exonerated or the sanctity of our family structure will be been challenged. September 4, 2009 The Central Forensic Laboratory in Hyderabad releases a report that Aarushi's va ginal samples were substituted with those of an unknown woman. The correct sampl es could have helped to establish who killed the teenager, and whether she was s
  8. 8. exually assaulted before being stabbed. The clothes that Aarushi was found in we re soaked in blood. But the forensic lab received clean clothes. September 14, 2009 Delhi police recovers Aarushi's mobile phone in Bulandshahr. (ref) India TV news 16/7/09 [18] Jan 5, 2010. CBI Moves Court to conduct Narco test on Talwar Couple. May 16, 2010. A prayer meet is conducted by the Talwars in remembrance of their dead daugh ter Aarushi who was killed on May 16, 2008. July 21, 2010. Dr.Rajesh Talwar moves the court to have a restraint order passed against th e unethical and misleading information being published by some print media outle ts. CBI reportedly seeking help of foreign forensic labs to crack the two year o ld case. December 29, 2010 CBI files closure report in Aarushi murder case. The closure report filed in Ghaziabad court says Rajesh Talwar is the sole suspect, and that Krishna, Raj K umar and Mandal are completely cleared. January 3, 2011 Ghaziabad court examines the validity of the closure report by CBI citing in adequate evidence against the suspects in the double murder case.[19] As per CBI , the prime suspect is still Rajesh Talwar however the motive of this killing is still unknown. January 25, 2011 Arushi's father, Dr. Rajesh Talwar, is attacked outside court with a cleaver by a youth called Utsav Sharma in protest against CBI's decision to recall the case and that Utsav was upset that Talwar was not convicted. Utsav had also in p rotest attacked former police chief S.P.S. Rathore of the Ruchika Girhotra case in February 2010 .[20] January 30, 2011 People from all walks of life get together to protest at Jantar Mantar, Delh i to press for Justice in the case. February 9, 2011 The special CBI court on Wednesday made Rajesh Talwar and Nupur Talwar accus ed in the Aarushi murder case. The Court has also issued summons against Aarushi 's parents, accusing them of murder and criminal conspiracy under IPC 302 and 34 . The next date for hearing has been fixed as February 28. March 8, 2011
  9. 9. The mother of Dr. Talwar's attorney is found murdered in her home. March 18, 2011 Supreme Court stays High Court order against the Talwars. March 21, 2011 The Talwars surrender passports to the Ghaziabad District Court. March 25, 2011 Hemraj's widow files application in Ghaziabad Court claiming Talwars killed him and Aarushi. April 8, 2011 SC pulls up Talwars for not submitting their original plea. April 11, 2011 Talwars due in court April 15, 2011. April 15, 2011 Supreme Court seeks CBI's response in Aarushi Talwar case. April 22, 2011 CBI charges Rajesh Talwar with forgery and concealing facts. April 23, 2011 CBI says "Only parents could have killed Aarushi". April 27, 2011 Aarushi's hearing in CBI court on July 20. June 15, 2011 Mayawati suspends police officer citing the unsolved three-year-old Aarushi Talwar murder case. Jan 6, 2012 SC dismisses Talwars' plea, says trial will resume Jan 9, 2012 Rajesh Talwar to remain on bail, asked to appear before trial court on Feb 4 March 2, 2012 Supreme Court refuses to shift Aarushi murder trial to Delhi from a Ghaziaba d court[21]. ---------Arushi murder case: The untold story By Mihir Srivastava | India Today Mon 24 Jan, 2011
  10. 10. 25 Email Print Latest Slideshows Pictures of the week 12th - 18th March 14 photos - Thu 15 Mar, 2012 Jenson Button tastes victory at the Australian F1 19 photos - 7 hours ago An armless photographer at work 15 photos - 7 hours ago A disturbing sexual angle has emerged in the murder of Aarushi Talwar, 14. Cruci al facts left out from her post-mortem report suggest that her private parts wer e "extraordinarily dilated". But there were no signs of rape. These facts, estab lished by the CBI after they questioned the doctor who performed the post-mortem , give a new twist to the case."The vaginal orifice of the deceased was unduly l arge and mouth of cervix was visible," says the CBI's closure report. Her private parts were cleaned. This caused water stains on the bedsheet. There was no semen on the bedsheet. But the pyjamas Aarushi wore did not have water st ains on it. This shows that the crime scene was dressed up. The CBI believes Aar ushi may have been killed elsewhere and the body placed on her bed. parallel investigation by Headlines Today reveals that the chairperson of the N ational Commission on Women (NCW) Girija Vyas allegedly scuttled a probe into th e Aarushi's murder by a two-member NCW committee. Soon after the killing, this c ommittee visited the Talwar house in Jalvayu Vihar, Noida, to investigate. Forme r NCW member Nirmala Venkatesh alleges that as soon as they stepped into Hemraj' s room, she got five calls from Vyas, asking her to stop the probe. Vyas initial ly denied there was an inquiry and that a committee was formed. She later admitt ed that there was, but said the report was not made public because the CBI was a bout to investigate. These sensational revelations fly in the face of the CBI's closure report. Last month, the CBI sought the special court's permission to close the double murder case because it could not solve it. Though the CBI has been unable to nail the accused, its investigations have comp letely ruled out the possibility of outsiders having killed Aarushi and domestic help Hemraj Banjade. Circumstantial evidence points to the complicity of those inside. The crime scene was methodically "dressed up"or cleansed of all evidence which could implicate the Talwars. An expert from the forensic science laborato ry, Gandhinagar, who inspected the crime scene, says that the crime had been com mitted by someone "very close to Aarushi". Nobody except the killer or killers, of course, knows what exactly happened in t he Talwar residence during the six crucial hours between 12 midnight and 6 a.m. on May 16, 2008, when both Hemraj and Aarushi were brutally murdered within an h our. Aarushi was bludgeoned on her forehead and her throat slit with a small, sh arp object. So was Hemraj. A reconstruction of the crime, however, increasingly points to an inside hand. T he assailants had gained easy access to the flat because there were no signs of forced entry. They killed Aarushi and Hemraj, moved their bodies around the flat and even stayed behind for drinks. The parents of Aarushi, Nupur and Rajesh Tal war, seem to have slept through an incredible amount of activity in their small flat. They claimed their bedroom door was shut and the air-conditioner turned on .
  11. 11. The murderer dragged Hemraj's body to the terrace using a sheet. The body was cu rsorily covered with a cooler lid and a bedsheet on a clothesline. The murderers then locked the terrace door and re-entered the house. They even seemed to know where the Talwars' mini-bar was-behind a wooden panel near the dining table. Th ey drank from a bottle of whiskey and left it on the dining table. The bottle ha d bloodstains of both victims. At around 3.43 a.m., the Internet router in Aarushi's room was switched off. Tha t means that somebody entered her room nearly three hours after her murder. Whoe ver it was, failed to raise the alarm or even spot her body. At 6.01 a.m., housemaid Bharti arrived. She rang the doorbell four times. Normal ly, Hemraj, the domestic help, would open the door, but this time Nupur opened i t. Rajesh was also awake. This was unusual because the couple were late risers. The iron grill door at the entrance was locked from outside, so Nupur threw the keys from the balcony to Bharti. Three minutes later, when Bharti entered, she f ound the couple sobbing. "Dekho Hemraj ne kya kar diya (look what Hemraj has don e)". Aarushi was found on the bed in a pool of blood. Bharti rushed out to infor m the neighbours. Hemraj's room had an independent entry and opened into the fla t from inside. Another strange incident happened around this time. Nupur called Hemraj's cellph one from her landline at 6.01 a.m. The call was immediately disconnected. This m eans the dead servant's phone was attended by someone near the crime scene. Inex plicably, both Hemraj's and Aarushi's cellphones disappeared. Hemraj's phone was never found but Aarushi's Nokia N72 was found on a dirt track by a housemaid ne ar Noida's Sadarpur area a fortnight later. Its memory was wiped clean. The cell phone was a crucial piece of evidence. Aarushi would usually be up chatting with her friends until well past midnight. On the night of May 15, her cellphone was inactive after 9.10 p.m. At around mid night, her friend Anmol called on the Talwar landline because he could not get t hrough her cellphone. There was no response. Anmol then sent an SMS to her cellp hone at around 12.30. This SMS was not received by Aarushi's phone. What were the Talwars doing before the murders? According to the CBI closure rep ort, after reaching home at 9.30 p.m., they dined with Aarushi, then took a few pictures on a new digital camera they bought for Aarushi as a birthday gift and retired by around 11 p.m. Around this time, Nupur came to Aarushi's room to swit ch on the Internet router. Aarushi was reading a book. The parents controlled access to Aarushi's room by locking it; the keys to her r oom would usually lie by Nupur's bedside. Nupur told the police that she was not sure whether she locked Aarushi's door the last time she went to her room. Raje sh received a call from the US on his landline at this time. This indicated that his ringer was not silent. He surfed the Internet, sent some emails, surveyed s tock market sites and some dentistry sites. He sent his last email at 11.57 p.m. before presumably going to sleep. The following morning, the bunch of keys to the flat and terrace were found on t he bed in Hemraj's room by Nupur. Aarushi's bedroom keys were found in the livin g room. It was the only set of house keys, so it is still not clear how the Talw ars were locked from the outside. The police arrived an hour later, at 7.15 a.m. They were met by a crowd inside. There were 15 people in the living room and fi ve-six people in the Talwars' bedroom. Only Aarushi's room was empty. The crime scene was completely trampled upon. The "Hemraj killed Aarushi" theory was gospel for a full day. Rajesh repeatedly told the police officers to pursue Hemraj and not to waste time in his flat. He dissuaded them from opening the locked terrace door and even offered the policem
  12. 12. en Rs 25,000 to rush to Hemraj's village in Nepal. The CBI and police mention they saw the concerted efforts by the Talwars to put the blame on Hemraj as a diversionary tactic. Meanwhile, doctors visiting the Ta lwars saw bloodstains on the handle of the locked terrace door. They also saw wi ped bloody footmarks and blood stains on the upper staircase. Rajesh was asked f or the keys but he went inside his residence after seeing the blood-stained door handle. The police failed to open the door for a full day. Aarushi's body was taken for a post- mortem in Noida at about 9 a.m. and her last rites performed late in the evening. The Talwars' domestic staff showed undue h aste in thoroughly cleaning up floors and walls of Aarushi's room with soap and water. Aarushi's blood- stained mattress was dumped on the terrace belonging to n eighbour Puneet Tandon. Meanwhile, when the post-mortem report was being written between 3 p.m. and 6 p. m. on May 16, a telephonic loop was created between Rajesh's elder brother Dines h Talwar, family friend Dr Sushil Chaudhury, K.K. Gautam, a retired deputy super intendent of police, and an unidentified number. Dinesh would call Chaudhury who would call Gautam. The latter would dial an unidentified number. This sequence was then reversed. This loop was created six times that evening. The CBI claims that it was done to delete references to "rape" in Aarushi's post-mortem report. Some 28 fingerprint samples were lifted from the scene of crime and handed over to the CBI on May 20. This was 10 days before the case was formally handed over to the CBI. Most of the fingerprints, especially those on the whiskey bottle, we re smudged. Between 9 a.m. and 10 a.m. on May 17, this loop was repeated twice. Soon after t hese calls were made, Gautam arrived at the Talwar house and asked for the terra ce door to be opened after examining the site of crime. Before calling the local police to open the door, he called a top Uttar Pradesh police officer and then his journalist friends so that the door is opened in media glare. Gautam told th em that there was likely to be an interesting discovery. When the local police arrived at the Talwar residence, the media was already the re. The keys to the terrace were still missing, so the lock was broken to enter the terrace. Hemraj's body was discovered. However, vital clues were missing-the blood-soaked clothes of the perpetrators, the cloth used to clean the floor and the sheet on which Hemraj's body was dragged. Was there a definite ploy to hide Hemraj's body? And why leave it on the terrace ? CBI sleuths believe the body was hidden on the roof by the murderer for dispos al later. But the media glare made it virtually impossible to spirit away the bo dy, hence they changed the plan. It may prove as difficult for the CBI to walk a way from one of India's most sensational whodunits. ------Posted by advocatemmmohan · January 10, 2012 Aarushi murder case =The powers of Magistrate to take cognizance even the report of investigating officer found no offence as per his opinion= The position is, the refore, 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 -------Relief for Talwars, Rajesh s bail extended to April 11 Nupur Talwar skips hearing, directed to appear within 30 days; her bail plea to be disposed of expeditiously
  13. 13. Arpit Parashar Ghaziabad A file photo of Rajesh and Nupur Talwar at the special CBI court in Ghaziabad ALSO READ Court tells CBI to charge Talwars in Aarushi- Hemraj double murder case Perfect murder? Or a perfectly botched probe? THE HOUSE WE blew down The special Central Bureau of Investigation (CBI) court in Ghaziabad on Wednesda y 14 March extended the bail of Rajesh Talwar in connection with the Aarushi Tal war-Hemraj double murder case. The court also ordered his wife Nupur Talwar to a ppear before it within 30 days. Rajesh Talwar attended the hearing accompanied b y his brother Dinesh but Nupur was not present during the hearing. The CBI strongly opposed the plea by the couple for an anticipatory bail in the case and said that there were hidden motives behind the plea, and that it might hav e been filed since Section 438 of the Criminal Procedure Code (CrPC), that deals with procedures related to anticipatory bail, is not applicable in Uttar Pradesh (UP). The CBI counsel also said that since the bail granted to the couple by th e Supreme Court (SC) was conditional, Rajesh Talwar should face arrest and then apply for fresh bail in the court; the agency asked for judicial custody of Nupu r Talwar. However, the Special Judicial Magistrate Preeti Singh was not convince d and extended the bail granted to Rajesh by the SC till 11 April and also direc ted Nupur Talwar to appear before it within 30 days. The next hearing in the mat ter will be held on 11 April. Nupur Talwar had on Tuesday approached the Allahabad High Court through her coun sel VP Srivastava pleading that her bail be heard simultaneously when she appear s before the trial court. However, Justice BK Narayana, who heard the case, said that that the only relief that can be granted at this stage would be to ask the lower court to hear the bail plea expeditiously and had issued the same directi ons to the Ghaziabad court. The application had been filed under section 482 of the CrPC, which gives exclusive powers to the HC to make decisions on matters of justice. Nupur and Rajesh are both accused murder (under IPC section 302), crim inal conspiracy (IPC 120B) and destruction of evidence (IPC section 201). The couple had last month approached the SC demanding that the court proceedings be shifted to Delhi citing security risks in Ghaziabad. Rajesh Talwar had been attacked outside the Ghaziabad court on 25 January, 2011. The counsel for Talwar s had also said in the SC that the trial court judge had been hearing the matter in a pre-determined manner. But on 2 March, a Bench led by Justice BS Chauhan d ismissed the petitions filed by the Talwars and said that Talwars conduct showed i mpertinence magnified manifold for the rule of law. However, despite expressing security concerns in the SC, the Talwars had not app roached the Ghaziabad police for security since the attack on Rajesh last year. After the attack, the trial court judge had issued orders under Section 327 of t he CrPC and allowed only litigants and advocates related to the case inside the courtroom. However, as per the SC order directing the UP administration to provi de adequate security to the Talwars, Ghaziabad police deployed a unit of the Pro vincial Armed Constabulary (PAC) outside the court, said city police chief Raghu bir Lal. The media was not allowed into the court room and nearly 35 police offi cers, all armed, were deployed outside. The CBI court had summoned the dentist couple as accused in the case after the p robe agency filed its closure report and directed the CBI to file a case against them for murder, criminal conspiracy and destruction of evidence since there wa
  14. 14. s sufficient evidence in its closure report. The couple had moved the HC and later the SC to get the trial court orders quash ed, but had not got any relief. The SC Bench of Justices AK Ganguly and JS Kheha r had, on 6 January, ruled that the dentist couple would face trial for the murd ers and said that there was nothing wrong in the Ghaziabad trial court Judge s ord er taking cognisance and putting the couple on trial as he had passed the order after applying his mind . Aarushi (14), the only daughter of the Talwars, was found dead with her throat s lit at the family s L-32 Jalvayu Vihar residence in Noida on the morning of 16 May , 2008, and the body of Hemraj, their domestic help, was found on the terrace th e next day. ------HC orders early disposal of Dr Nupur's bail plea Allahabad | Tuesday, Mar 13 2012 IST Allahabad High Court today directed a CBI court to dispose the bail plea of Dr N upur Talwar, an accused in the Aarushi murder case, at the earliest. A division bench comprising Justice V K Narayan has passed this order, while hearing the pe tition of Dr Talwar filed under section 482 of the IPC. Dr Nupur Talwar, the mot her of Aarushi, is facing a case against her under section 302 and 301 of the IP C in special CBI court. Her husbnd Rajesh Talwar is also co-accused into the kil ling of their daughter. On May 17, 2008, Aarushi's body was recovered from her h ouse. Few days later, their domestic help Hemraj was also found murdered at the terrace. The CBI court had in a closure report on December 21, 2010 suspected th e involvement of the girl's parents into the killing. UNI XC-JAS SB VC1919 NNNN ------Head Master, Lawrence School Lovedale Vs. Jayanthi Raghu & Anr. IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Dalveer Bhandari and Dipak Misra, JJ. March 16, 2012 CIVIL APPEAL No. 2012 (Arising out of SLP (c) No. 21400 of 2008) Head Note:Rules of Lawrence School, Lovedale (Nilgiris) - Rule 4.9 - Regard being had to the tenor of the Rules, the words if confirmed , read in proper context, confer a status on the appointee which consequently entitles him to continue on the pos t till the age of 55 years, unless he is otherwise removed from service as per t he Rules. J U D G M E N T Dipak Misra, J Leave granted. 2. Questioning the legal acceptability of the Judgment and Order dated 26.03.200 8 passed by the High Court of Judicature at Madras in W.A. No. 4157 of 2004 wher eby the finding recorded by the learned Single Judge in W.P. No. 15963 of 1997 t o the effect that the order of termination in respect of the first respondent, a teacher, being stigmatic in nature and having been passed without an enquiry wa rranted quashment was dislodged by the Division Bench on the foundation that the order of termination did not cast any stigma, but concurred with the ultimate c onclusion on the base that she was a confirmed employee and hence, holding of di sciplinary enquiry before passing an order of termination was imperative, the pr esent appeal by special leave has been preferred under Article 136 of the Consti tution of India. 3. The factual matrix lies in a narrow compass. The first respondent herein was appointed on the post of a Mistress with effect from 01.09.1993. It was stipulat ed in the letter of appointment that she would be on probation for a period of t
  15. 15. wo years which may be extended for another one year, if necessary. In November 1 995, while she was working as a Mistress in the appellant s school, as alleged, sh e had received some amount from one Nathan. A meeting was convened on 09.09.1997 and in the proceeding, certain facts were recorded which need not be adverted t o inasmuch as the said allegations though treated stigmatic by the learned Singl e Judge, yet the Division Bench, on a studied scrutiny of the factual scenario, has opined in categorical terms that the same do not cast any stigma. The said conclusion has gone unassailed as no appeal has been preferred by the first res pondent. 4. To proceed with the narration, after the proceeding was recorded on 18.06.199 7, an order of termination was passed against the first respondent. As has been stated earlier, the order of termination was assailed before the Writ Court and the learned Single Judge axed the order on the ground that the same was stigmati c in nature. The order passed by the learned Single Judge was challenged in Writ Appeal under Clause 15 of the Letters Patent by the present appellant and at th at juncture, a contention was canvassed by the first respondent that by virtue o f the language employed in Rule 4.9 of the Rules of Lawrence School, Lovedale (N ilgiris) (for short, the Rules ), she had earned the status of a confirmed employee having satisfactorily completed the period of probation and, therefore, her ser vices could not have been dispensed with without holding an enquiry. In essence, the proponement was that she was deemed to have been a confirmed employee of th e school and hence, it was obligatory on the part of the employer to hold an enq uiry before putting an end to her services. 5. The Division Bench interpreted the Rule and placed reliance on a three-Judge Bench Decision of this Court in The High Court of Madhya Pradesh through Registr ar and Others v. Satya Narayan Jhaver, (2001) 7 SCC 161 : AIR 2001 SC 3234 and c ame to hold as follows:In terms of Rule 4.9 of the Rules, the maximum period of probation would be o nly three years and the rule does not provide any further extension of probation . If that be so, the Headmaster of the school would be entitled to pass orders a s to the confirmation before the expiry of the maximum period of three years i.e ., 1.9.1996. Factually no such order was passed in this case and the teacher was allowed to serve beyond the period of 1.9.1996 till the order of termination da ted 18.6.1997 was passed. In the absence of any provision for extension beyond a period of three years, in law, as stated by the Supreme Court, the services of the teacher would be treated as confirmed after 1.9.1996. Mr. K. R. Vijayakumar, learned counsel for the school has submitted that the said rule 4.9 contemplate s that only if confirmed the probation would come to an end. The said submission i s based on the rule that the appointee, if confirmed, shall continue to hold off ice till the age of 55 years. In our opinion, the said rule relates to the upper age limit for the entire service, i.e., in the event of a probationer is confir med, he would be entitled to continue till the age of 55 years. The said rule do es not in any way empowers the Headmaster or the Chairman, as the case may be, t o extend the period of probation beyond the maximum period of three years. 6. Assailing the legal substantiality of the order, Mr. K.V. Viswanathan, learne d senior counsel, has submitted that the Division Bench has grossly erred by com ing to the conclusion that after the expiry of the probation period, the first r espondent became a confirmed employee. It is his further submission that if the language employed in Rule 4.9 of the Rules, especially the words if confirmed , are appreciated in proper perspective, there can be no trace of doubt that an affir mative act was required to be done by the employer without which the employee co uld not be treated to be a confirmed one. The learned senior counsel would furth er contend that the High Court has clearly flawed in its interpretation of the R ule by connecting the factum of confirmation with the fixation of upper age limi t for superannuation. It is also urged by him that the Division Bench has clearl y faulted in its appreciation of the law laid down in Satya Narayan Jhaver (supr a) inasmuch as the case of the first respondent squarely falls in the category w here a specific act on the part of the employer is an imperative requisite.
  16. 16. 7. Combating the aforesaid submissions, Ms. Shweta Basti, learned counsel appear ing for the first respondent, submitted that the order passed by the High Court is absolutely impeccable since on a careful scanning of the Rule, it is discerni ble that it does not confer any power on the employer to extend the period of pr obation beyond the maximum period as stipulated in the Rule and, therefore, the principle of deemed confirmation gets attracted. It is proponed by her that the emphasis placed on the term if confirmed by the appellant is totally misconcieved and unwarranted because its placement in the Rule luminously projects that it ha s an insegregable nexus with the age of retirement and it has no postulate which would destroy the concept of deemed confirmation. It has been further put forth that the Rule neither lays down any postulate that the employee shall pass any test nor does it stipulate any condition precedent for the purpose of confirmati on. Lastly, it is contended that a liberal interpretation is necessary regard be ing had to the uncertainties that is met with by a probationer after the expiry of the probation period and unless the beneficent facet is taken note of, the ca price of the employer would prevail and the service career of an employee would be fossilized. 8. To appreciate the rivalised submissions raised at the Bar, we have carefully perused the letter of appointment and on a plain reading of the same, it is appa rent that the first respondent was appointed as a Mistress in the School on prob ation for a period of two years with a stipulation that it may be extended by an other year. There is nothing in the terms of the letter of appointment from whic h it can be construed that after the expiry of the period of probation, she woul d be treated as a deemed confirmed employee. In this factual backdrop, the inter pretation to be placed on Rule 4.9 of the Rules assumes immense signification. T he said Rule reads as follows:4.9 All appointments to the staff shall ordinarily be made on probation for a period of one year which may at the discretion of the Headmaster or the Chairma n in the case of members of the staff appointed by the Board be extended up to t wo years. The appointee, if confirmed, shall continue to hold office till the ag e of 55 years, except as otherwise provided in these Rules. Every appointment sh all be subject to the conditions that the appointee is certified as medically fi t for service by a Medical Officer nominated by the Board or by the Resident Med ical Officer of the School. 9. Keeping in abeyance the interpretation to be placed on the Rule for a while, it is obligatory to state that there is no dispute at the Bar that the first res pondent had completed the period of probation of three years. Thus, the fulcrum of the controversy is whether the appellant-school was justified under the Rules treating the respondent-teacher as a probationer and not treating her as a deem ed confirmed employee. We have reproduced the necessary paragraph from the decis ion of the High Court and highlighted how the Division Bench has analysed and in terpreted the Rule in question. The bedrock of the analysis, as is perceivable, is the sentence in Rule 4.9 the appointee, if confirmed, shall continue to hold o ffice till the age of 55 years fundamentally relates to the fixation of the upper age limit for the entire service. It has been held that it deals with the entit lement of an employee to continue till the age of 55 years. 10. Before we proceed to appreciate whether the interpretation placed on the Rul e is correct or not, it is apposite to refer to certain authorities in the field . In Sukhbans Singh v. State of Punjab, AIR 1962 SC 1711 the Constitution Bench has opined that a probationer cannot, after the expiry of the probationary perio d, automatically acquire the status of a permanent member of the service, unless of course, the rules under which he is appointed expressly provide for such a r esult. 11. In G.S. Ramaswamy and Ors. v. Inspector-General of Police, Mysore, AIR 1966 SC 175 another Constitution Bench, while dealing with the language employed und er Rule 486 of the Hyderabad District Police Manual, referred to the decision in Sukhbans Singh (supra) and opined as follows:
  17. 17. It has been held in that case that a probationer cannot after the expiry of t he probationary period automatically acquire the status of a permanent member of a service, unless of course the rules under which he is appointed expressly pro vide for such a result. Therefore even though a probationer may have continued t o act in the post to which he is on probation for more than the initial period o f probation, he cannot become a permanent servant merely because of efflux of ti me, unless the Rules of service which govern him specifically lay down that the probationer will; be automatically confirmed after the initial period of probati on is over. It is contended on behalf of the petitioners before us that the part of r. 486 (which we have set out above) expressly provides for automatic confir mation after the period of probation is over. We are of opinion that there is no force in this contention. It is true that the words used in the sentence set ou t above are not that promoted officers will be enable or qualified for promotion at the end of their probationary period which are the words to be often found i n the rules in such eases; even so, though this part of r. 486 says that "promot ed officers will be confirmed at the end of their probationary period", it is qu alified by the words "if they have given satisfaction". Clearly therefore the ru le does not contemplate automatic confirmation after the probationary period of two years, for a promoted officer can only be confirmed under this rule if he ha s given satisfaction. 12. In State of Uttar Pradesh v. Akbar Ali Khan, AIR 1966 SC 1842 another Consti tution Bench ruled that if the order of appointment itself states that at the en d of the period of probation, in the absence of any order to the contrary, the a ppointee will acquire a substantive right to the post even without an order of c onfirmation. In all other cases, in the absence of such an order or in the absen ce of such a service rule, an express order of confirmation is necessary to give him such a right. Where after the period of probation, an appointee is allowed to continue in the post without an order of confirmation, the only possible view to take is that by implication, the period of probation has been extended, and it is not a correct proposition to state that an appointee should be deemed to b e confirmed from the mere fact that he is allowed to continue after the end of t he period of probation. 13. In State of Punjab v. Dharam Singh, AIR 1968 SC 1210 the Constitution Bench, after scanning the anatomy of the Rules in question, addressed itself to the pr ecise effect of Rule 6 of the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961. The said Rule stipulated that the total period of probati on - including extensions, if any, shall not exceed three years. This Court refe rred to the earlier view which had consistently stated that when a first appoint ment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any spec ific order of confirmation, he should be deemed to continue in his post as a pro bationer only in the absence of any indication to the contrary in the original o rder of appointment or promotion or the service rules. Under these circumstances , an express order of confirmation is imperative to give the employee a substant ive right to the post and from the mere fact that he is allowed to continue in t he post after the expiry of the specified period of probation, it is difficult t o hold that he should be deemed to have been confirmed. When the service rules f ixed a certain period of time beyond which the probationary period cannot be ext ended and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation witho ut an express order of confirmation, he cannot be deemed to continue in that pos t as a probationer by implication. It is so as such an implication is specifical ly - negatived by the service rule forbidding extension of the probationary peri od beyond the maximum period fixed by it. 14. In Samsher Singh v. State of Punjab and another, (1974) 2 SCC 831 the sevenJudge Bench was dealing with the termination of services of the probationers und er Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and R ule 7(3) of the Punjab Civil Services (Judicial Branch) Rules, 1951. In the said case, the law laid down by the Constitution Bench in the case of Dharam Singh (
  18. 18. supra) was approved but it was distinguished because of the language of the rele vant rule, especially explanation to Rule 7(1), which provided that every subord inate Judge in the first instance be appointed on probation for two years and th e said period may be extended from time to time either expressly or impliedly so that the total period of probation including extension does not exceed three ye ars. The explanation to the said Rule stipulated that the period of probation sh all be deemed to have been extended if a subordinate Judge is not confirmed on t he expiry of the period of probation. Be it noted, reliance was placed on the de cision in Dharam Singh (supra). The larger Bench discussed the principle laid do wn in Dharam Singh s case and proceeded to state as follows:In Dharam Singh s case (supra) the relevant rule stated that the probation in t he first instance is for one year with the proviso that the total period of prob ation including extension shall not exceed three years. In Dharam Singh s case he was allowed to continue without an order of confirmation and therefore the only possible view in the absence of anything to the contrary in the Service Rules wa s that by necessary implication he must be regarded as having been confirmed. After so stating, the Bench referred to Rule 7(1) and came to hold as follows:..................the explanation to rule 7(1) shows that the period of proba tion shall be deemed to have been extended impliedly if a Subordinate Judge is n ot confirmed on the expiry of this period of probation. This implied extension w here a Subordinate Judge is not confirmed on the expiry of the period of probati on is not found in Dharam Singh's case (supra). This explanation in the present case does not mean that the implied extension of the probationary period is only between two and three years. The explanation on the contrary means that the pro vision regarding the maximum period of probation for three years is directory an d not mandatory unlike in Dharam Singh's case (supra) and that a probationer is not in fact confirmed till an order of confirmation is made. (Emphasis supplied) 15. In Om Prakash Maurya v. U.P. Co- operative Sugar Factories Federation, Luckno w and others, AIR 1986 SC 1844 a two-Judge Bench was dealing with the case of co nfirmation under the U.P. Cooperative Societies Employees Service Regulations, 1 975. After referring to Regulations 17 and 18, it was held that as the proviso t o Regulation 17 restricts the power of the appointing authority in extending the period of probation beyond the period of one year and Regulation 18 provides fo r confirmation of an employee on the satisfactory completion of the probationary period, it could safely be held that the necessary result of the continuation o f an employee beyond two years of probationary period is that he would be confir med by implication. 16. In Municipal Corporation, Raipur v. Ashok Kumar Misra, AIR 1991 SC 1402 whil e dealing with Rule 14 of the Madhya Pradesh Government Servants General Conditio ns of Service Rules, 1961, after referring to earlier pronouncements, it has bee n held that if the rules do not empower the appointing authority to extend the p robation beyond the prescribed period, or where the rules are absent about confi rmation or passing of the prescribed test for confirmation it is an indication o f the satisfactory completion of probation. 17. It is apt to note here that the learned counsel for both the sides have heav ily relied on the decision in High Court of Madhya Pradesh thru. Registrar and o thers v. Satya Narayan Jhavar, (2001) 7 SCC 161 : AIR 2001 SC 3234. In the said case, the three-Judge Bench was considering the effect and impact of Rule 24 of the Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Services) Rules, 1955. It may be mentioned that the decision rendered in Daya ram Dayal v. State of M.P., AIR 1997 SC 3269 which was also a case under Rule 24 of the said Rules, was referred to the larger Bench. In Dayaram Dayal (supra), it had been held that if no order for confirmation was passed within the maximum period of probation, the probationer judicial officer could be deemed to have b
  19. 19. een confirmed after expiry of four years period of probation. After referring to the decisions in Dharam Singh (supra), Sukhbans Singh (supra) and Shamsher Sing h (supra) and other authorities, the three Judge Bench expressed thus:11. The question of deemed confirmation in service Jurisprudence, which is de pendent upon language of the relevant service rules, has been subject matter of consideration before this Court times without number in various decisions and th ere are three lines of cases on this point. One line of cases is where in the se rvice rules or the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribin g any maximum period of probation and if the officer is continued beyond the pre scribed or extended period, he cannot be deemed to be confirmed. In such cases t here is no bar against termination at any point of time after expiry of the peri od of probation. Other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for suc h extension is also provided beyond which it is not permissible to extend probat ion. The inference in such cases is that officer concerned is deemed to have bee n confirmed upon expiry of the maximum period of probation in case before its ex piry order of termination has not been passed. The last line of cases is where t hough under the rules maximum period of probation is prescribed, but the same re quire a specific act on the part of the employer by issuing an order of confirma tion and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirm ation has been passed nor the person concerned has passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expi red. (underlining is ours) After so stating, it was further clarified as follows:38. Ordinarily a deemed confirmation of a probationer arises when the letter of appointment so stipulates or the Rules governing service condition so indicat e. In the absence of such term in the letter of appointment or in the relevant R ules, it can be inferred on the basis of the relevant Rules by implication, as w as the case in Dharam Singh (supra). But it cannot be said that merely because a maximum period of probation has been provided in Service Rules, continuance of the probationer thereafter would ipso facto must be held to be a deemed confirma tion which would certainly run contrary to Seven Judge Bench Judgment of this Co urt in the case of Shamsher Singh (supra) and Constitution Bench decisions in th e cases of Sukhbans Singh (supra), G.S. Ramaswamy (supra) and Akbar Ali Khan (su pra). 18. Regard being had to the aforesaid principles, the present Rule has to be sca nned and interpreted. The submission of Mr. Viswanathan, learned senior counsel for the appellant, is that the case at hand comes within the third category of c ases as enumerated in para-11 of Satya Narayan Jhaver (supra). That apart, it is urged, the concept of deemed confirmation, ipso facto, would not get attracted as there is neither any restriction nor any prohibition in extending the period of probation. On the contrary, the words if confirmed require further action to be taken by the employer in the matter of confirmation. 19. On a perusal of Rule 4.9 of the Rules, it is absolutely plain that there is no prohibition as was the rule position in Dharam Singh (supra). Similarly, in O m Prakash Maurya (supra), there was a restriction under the Regulations to exten d the period of probation. That apart, in the rules under consideration, the sai d cases did not stipulate that something else was required to be done by the emp loyer and, therefore, it was held that the concept of deemed confirmation got at tracted. 20. Having so observed, we are only required to analyse what the words if confirm ed in their contextual use would convey. The Division Bench of the High Court has
  20. 20. associated the said words with the entitlement of the age of superannuation. In our considered opinion, the interpretation placed by the High Court is unaccept able. The words have to be understood in the context they are used. Rule 4.9 has to be read as a whole to understand the purport and what the Rule conveys and m eans. In Reserve Bank of India v. Peerless General Finance and Investment Co. Lt d. and others, (1987) 1 SCC 424 it has been held as follows:Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what g ives the colour. Neither can be ignored. Both are important. The interpretation is best which makes the textual interpretation match the contextual. A statute i s best interpreted when we know why it was enacted. With this knowledge, the sta tute must be read, first as a whole and then section by section, clause by claus e, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such contex t, its scheme, the sections, clauses, phrases and words may take colour and appe ar different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed s o that every word has a place and everything is in its place. Keeping the said principle in view, we are required to appreciate what precisely the words if confirmed contextually convey. Regard being had to the tenor of the Rules, the words if confirmed , read in proper context, confer a status on the appo intee which consequently entitles him to continue on the post till the age of 55 years, unless he is otherwise removed from service as per the Rules. 21. It is worth noting that the use of the word if has its own significance. In th is regard, we may usefully refer to the decision in S.N. Sharma v. Bipen Kumar T iwari and others, (1970) 1 SCC 653. In the said case, a three-Judge Bench was in terpreting the words if he thinks fit as provided under Section 159 of the Code of Criminal Procedure, 1898. It related to the exercise of power by the Magistrate . In that context, the Bench observed thus:The use of this expression makes it clear that Section 159 is primarily meant to give to the Magistrate the power of directing an investigation in cases wher e the police decide not to investigate the case under the proviso to Section 157 (1), and it is in those cases that, if he thinks fit, he can choose the second a lternative. If the expression if he thinks fit had not been used, it might have be en argued that this section was intended to give in wide terms the power to the Magistrate to adopt any of the two courses of either directing an investigation, or of proceeding himself or deputing any Magistrate subordinate to him to proce ed to hold a preliminary enquiry as the circumstances of the case may require. W ithout the use of the expression if he thinks fit , the second alternative could ha ve been held to be independent of the first; but the use of this expression, in our opinion, makes it plain that the power conferred by the second clause of thi s section is only an alternative to the power given by the first clause and can, therefore, be exercised only in those cases in which the first clause is applic able. 22. In State of Tamil Nadu v. Kodaikanal Motor Union (P) Ltd., (1986) 3 SCC 91 t he Court, while interpreting the words if the offence had not been committed as us ed in Section 10-A(1) of the Central Sales Tax Act, 1956, expressed the view as follows:In our opinion the use of the expression if simpliciter, was meant to indicate a condition, the condition being that at the time of assessing the penalty, that situation should be visualised wherein there was no scope of committing any off ence. Such a situation could arise only if the tax liability fell under sub-sect
  21. 21. ion (2) of Section 8 of the Act. 23. Bearing in mind the aforesaid conceptual meaning, when the language employed under Rule 4.9 is scrutinised, it can safely be concluded that the entitlement to continue till the age of superannuation, i.e., 55 years, is not absolute. The power and right to remove is not obliterated. The status of confirmation has to be earned and conferred. Had the rule making authority intended that there woul d be automatic confirmation, Rule 4.9 would have been couched in a different lan guage. That being not so, the wider interpretation cannot be placed on the Rule to infer that the probationer gets the status of a deemed confirmed employee aft er expiry of three years of probationary period as that would defeat the basic p urpose and intent of the Rule which clearly postulates if confirmed . A confirmatio n, as is demonstrable from the language employed in the Rule, does not occur wit h efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confir mation is required to be passed. The Division Bench has clearly flawed by associ ating the words if confirmed with the entitlement of the age of superannuation wit hout appreciating that the use of the said words as a fundamental qualifier nega tives deemed confirmation. Thus, the irresistible conclusion is that the present case would squarely fall in the last line of cases as has been enumerated in pa ragraph 11 of Satya Narayan Jhaver (supra) and, therefore, the principle of deem ed confirmation is not attracted. 24. In the result, the appeal is allowed and the judgment and order passed by th e High Court are set aside to the extent that the first respondent had acquired the status of confirmed employee and, therefore, holding of enquiry is imperativ e. As far as the conclusion recorded by the Division Bench that no stigma was ca st on the respondent is concerned, the same having gone - unchallenged, the orde r in that regard is not disturbed. The parties shall bear their respective costs . ------Aarushi case: Court holds Talwars accused in the murders Dr Rajesh Talwar and his wife Nupur Talwar talk to media persons in Ghaziabad Dr Rajesh Talwar and his wife Nupur Talwar talk to media persons in Ghaziabad. The Aarushi Talwar-Hemraj Banjade double murder case - possibly India's most hig h-profile homicide investigation in recent history - took a new turn on Wednesda y when a court named the slain teenager's parents as the prime accused. The Central Bureau of Investigation (CBI) court at Ghaziabad rejected the agency 's closure report in the case and made Drs Rajesh and Nupur Talwar accused under Section 302 (murder) and Section 201 (causing disappearance of evidence of offe nce) read with Section 34 (acts done by several persons in furtherance of common intention) of the Indian Penal Code (IPC). Click here to Enlarge The media were not allowed to enter the court, but according to CBI counsel R.K. Saini, special judicial magistrate (CBI) Priti Singh said in her order: "The co urt has made Rajesh and Nupur Talwar accused and has issued summons to them aski ng them to appear before the court on February 28." The court also rejected the Talwars' 90-page protest application seeking re- investigation of the case. Nupur Talwar, who saw her name flashed on television as the murder accused, said she was "shattered". "Let the decisionmakers put themselves in my shoes and see what it means for a mother to lose her only child." Although Rajesh Talwar had been named as an accused earlier - for which he was briefly incarcerated and is now out on bail - this is the first time that the mother has been named. "We are fighting to prove our own innocence for more than two years now," Nupur Talwar told Mail Today, immediately following the decision. "We are fighting the wrong battle while the culprits are roaming free. The premier investigating age ncy has failed us at every step. But we will continue to fight and Arushi's love remains our driving force." The Talwars' counsel, Satish Tamta, said the defence is yet to receive the court 's order. "Nothing can be said at this stage," he said. "Any strategy would be d
  22. 22. ecided only after thoroughly reading the court's order." But senior lawyer Khalid Khan said the court was right in taking such a decision . "The court has taken cognisance on the basis of material furnished in the clos ure report," he said. "The court has acted well within its jurisdiction and its order is proper. There is no illegality." Former Uttar Pradesh Police chief Vikram Singh said the investigation by the Noi da police was "very professional and based on evidence". He said: "Our investiga tion was very professional and had no malice." Singh was the state's director ge neral of police when the double murder took place on the midnight of May 15, 200 8. Soon after the CBI took over the case, it had also named domestic helps Raj Kuma r Sharma, Vijay Mandal and Krishna as the accused. Their counsel Naresh Yadav sa id on Wednesday: "This is a victory for justice. There have always been attempts to implicate the poor servants who had nothing to do with the crime. The court has vindicated our stand." Rebecca John, the Talwars' family counsel, blamed the media for the order. "It h as all occurred because of media hype," she said, adding: "Everybody has been se nsationalising the issue. They have viewed the parents as the Arushi's murderers ." She said no one in the media or among the general public had any sympathy with t he parents who had lost their only child. "No one has understood their pain and trauma, and they have consistently hounded them," she said. Rebecca added that while they are yet to examine the order, "it is challengeable ". "There is such a thing as the rule of law," she said. "We would seek a revisi on in the superior court, which may be the sessions court or the Allahabad High Court." Rajesh Talwar's sister-in-law Vandana Talwar, too, lashed at the media. It is because of the media that this has happened," she said. "This is most unfo rtunate. Now we don't know where to go." Earlier, on Tuesday, the court heard th e arguments of both sides for more than three hours. Tamta had submitted that th e CBI closure report had many loose ends and many crucial points remained unexpl ained. "We had persistently asked the CBI to get the Low Count Number (LCN) DNA test co nducted in any reputed lab abroad but it never paid heed," Tamta said. "The test would have yielded substantial results but that had never been done to date." Rajesh Talwar, still recovering from a murderous attack on him in January outsid e the same CBI court, said: "It is the system that has let Aarushi down." He tol d Mail Today: "How long will this mockery of justice continue? Why doesn't anybo dy believe me? Why can't the country understand that we have lost Aarushi, our o nly child? I did everything to cooperate with the CBI, but I don't understand wh y they are doing this to me." Read more at: http://indiatoday.intoday.in/story/aarushi-case-cbi-court- says-raj esh-talwar-and-nupur-talwar-are-accused-in-the-murders/1/129218.html -----
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