- (1.) Dr. Rajesh Talwar has filed Transfer Petition (Crl.) no. 45 of 2012 and Dr. Mrs. Nupur Talwar has filed Transfer Petition (Crl.) no. 46 of 2012. These petitions have been filed under Section 406 of the Code of Criminal Procedure, 1973, praying for the transfer of Special Case No. 01/2011 pending before the Court of the Special Judicial Magistrate (CBI) Ghaziabad, U.P., to a Court of competent jurisdiction at Delhi/New Delhi. Both these petitions are being disposed of by a common order, because the prayers made are identical and are based on the same grounds, arising out of the same factual background.
(2.) Before dealing with the grounds raised by the petitioners, it is necessary to briefly record the sequence of events leading to the filing of the instant transfer petitions. The prosecution under reference pertains to the murder of Aarushi Talwar, daughter of the two petitioners, namely, Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar, on the night intervening 15.5.2008 and 16.5.2008. On 16.5.2008, Dr. Rajesh Talwar got a first information report registered at police station, Sector 20, Noida, alleging that their domestic help Hemraj had committed the murder of their daughter Aarushi Talwar. On the following day, i.e., on 17.5.2008, the body of Hemraj was also found on the roof of the petitioners residence. Hemraj had also been murdered. On 23.5.2008, Dr. Rajesh Talwar was arrested by the State Police. On 24.5.2008, Dr. Rajesh Talwar was produced before the Chief Judicial Magistrate, Gautam Buddh Nagar. On 27.5.2008, the Chief Judicial Magistrate, granted police custody of Dr. Rajesh Talwar till 30.5.2008. Even though the matter was originally investigated by the State Police, on 29.5.2008, investigation was transferred to the Central Bureau of Investigation (hereinafter referred to as "the CBI"). The CBI then recorded a separate first information report. On 30.5.2008, Dr. Rajesh Talwar was sent to judicial custody.
(3.) Having concluded the investigation, the CBI filed an application (purported to be an application under Section 169 of the Code of Criminal Procedure), asserting lack of incriminating evidence against Dr. Rajesh Talwar. In the application it was also asserted, that further judicial custody of Dr. Rajesh Talwar was unnecessary. Accordingly, on 11.7.2008, the Special Judicial Magistrate (CBI) Ghaziabad, ordered the release of Dr. Rajesh Talwar, on bail.;