Ravindra Singh - (1.) THIS application (under Section 482 Cr.P.C.) has been moved by the applicant Dr. Rajesh Talwar with a prayer to quash the order dated 18.2.2011 passed by the learned Judicial Magistrate (C.B.I.) Ghaziabad in Special Case No. 01 of 2001., (New No. 130 of 2011) C.B.I, v. Dr. Rajesh Talwar and another under Sections 302/34 and 201/341.P.C. P.S. SCB (C.B.I.) Delhi by which bailable warrant of Rs. 20,000/ - has been issued against the applicant.
(2.) THE facts in brief of this case are that the F.I.R. of this case has been lodged by the applicant on 16.5.2008 at 7.10 a.m. at P.S. Sector -20 district Gautam Budh Nagar vide case crime No. 8970969508 in respect of the incident allegedly occurred in the night of 15/16.5.2008 at unknown time inside the house of the applicant in which Km. Arushi, aged about 14 years, the daughter of the applicant was killed, the suspected accused was Hemraj, the servant of the applicant. The post -mortem examination of the deceased Km. Arushi was conducted on 16.5.2008 at 12 O' Clock Noon. According to the post -mortem examination report, she had sustained four ante -mortem injuries in which injury Nos. 1 and 3 were lacerated wounds and injury Nos. 2 and 4 were incised wounds, the cause of death was shock due to Hypovolemia. The viscera was preserved and sent for examination to R/O poisoning. Thereafter, on. 17.5.2008 the dead body of the suspected accused Hemraj, servant of the applicant, was also recovered, his post -mortem examination was conducted on 12.5.2008 at 9.00 p.m. According to the post -mortem examination report, he had sustained 7 ante -mortem injuries in which injury No. 1 was abrasion, injury Nos. 2,4,5 were abraded contusions, the injury No. 3 was incised wound, and injuries Nos. 6 and 7 were lacerated wounds, the cause of death was 'shock due to Hypovolemia caused by ante -mortem injuries'. The viscera was preserved. After lodging of the aforesaid F.I.R. investigation was entrusted to the local police, subsequently, vide notification No. 1973 -VI -G -3 - 2008 -15(48) P./2008 Lucknow dated 29.5.2008, the investigation was transferred to C.B.I.by the State Government of U.P., pursuant to that notification dated 19.5.2008, the matter was taken up by the C.B.I. and again F.I.R. was registered as case crime No. 695 of 2008 -R.C. -1(S)2008/S.C.R. -lll/C.B.I. New Delhi and has been investigated by the C.B.I. The applicant was arrested on 23.5.2008 by the local police, he was produced in the Court of learned magistrate concerned on 24.5.2008. On 25.5.2008, he was remanded to the police custody for 3 days, which was extended till 30.5.2008. Thereafter, the applicant was sent to judicial custody on 30.5.2008. The judicial remand was extended from time to time on the request of the investigating officer of the C.B.I. During the pendency of the judicial custody, applicant moved a bail application, the same was rejected by the Special Judicial Magistrate (CBI) on 10.6.2008 after considering the merits of the case. Thereafter, the I.O. of the C.B.I. filed an application dated 11.7.2008 under Sections 169 Cr.P.C. mentioning therein that the applicant was arrested on 23.5.2008 subsequently, following expiry of his police remand, he was remand to judicial custody up to 11.7.2008 vide order dated 2.7.2008. The investigation of this case is still pending and all the facts and circumstances are being investigated, the role of the applicant was thoroughly investigated regarding the aforesaid crime, during investigation poly report test, phychological analysis test of the applicant was conducted and no deception have been found in the test reports. Clothes shoes, and finger palm/ foot print of the applicant were forwarded/submitted to C.F.S.L. New Delhi for examination of expert opinion, the Scientific examination result could not connect the applicant Rajesh Talwar will the crime, in view of the above circumstances further judicial custody of accused Rajesh Talwar, is not required in the interest of justice, therefore, judicial custody remand of the accused Rajesh Talwar may not be extended. The application dated 11.7.2008 filed by the C.B.I. has been allowed by the Special Judicial Magistrate C.B.I. Ghaziabad on 11.7.2008 by releasing the applicant from the judicial custody on furnishing personal bond of Rs. 5 lacs and two sureties of the like amount. In compliance of the order dated 11.7.2008, the applicant was released from jail on furnishing a personal bond and two sureties as required. The investigation was carried on by the C.B.I. who after completing it, submitted the closure report dated 29.12.2010 before the Special Judicial Magistrate (CBI), Ghaziabad with a prayer that in view of the shortcoming in the evidence mentioned in the closure report, it was felt that sufficient evidence was not available to prove the offence under Section 302/2011.P.C. against the applicant Dr. Rajesh Talwar beyond reasonable doubt, therefore, it was prayed that the case may be allowed to be closed, due to insufficient evidence. Against the closure -report dated 29.12.2010 a detailed protest petition date 28.1.2011 was filed before the Special Magistrate C.B.I. by the applicant with a prayer to reject the closure report filed by the C.B.I. under Section 173(2) Cr.P.C. wherein the C.B.I has sought to close the case and the order of further investigation may be passed so that the culprits involved in this heinous crime may be apprehended and may be tried. Thereafter the learned Special Judicial magistrate (C.B.I.) Ghaziabad after hearing counsel for the parties rejected the closure report filed by the C.B.I. in exercise of powers conferred under Section 190(1)(b) of Cr.P.C. and summoned the applicant and co -accused Dr. Noopur Talwar for the offence punishable under Sections 302/34,201/34 IPC and the date of their appearance was fixed on 28.2.2011. On 28.2.2011 the application under Section 205 Cr.P.C. was filed on behalf of the applicant with a prayer to exempt him from the personal appearance. Application dated 28.2.2011 was rejected by learned Special Judicial Magistrate (CBI) Ghaziabad and issued bailable warrant of Rs. 20,000/ - fixing 22.3.2011 as the next date. The impugned order dated 28.2.2011 issuing the bailable warrant has been challenged by the applicant by way of filing the present application under Section 482 Cr.P.C.
(3.) HEARD Sri GS. Chaturvedi, Senior Advocate assisted by Sri Samit Gopal, counsel for the applicant, Sri N.I. Jafri and Sri Anurag Khanna appearing for the C.B.I. and Sri D.R. Chaudhary, learned Government Advocate appearing for the State of U.P. It is contended by learned counsel for the applicant that the applicant was attacked by one Utsav Sharma on 25.1.2011, he sustained grievous injuries, the applicant had undergone several surgeries, he remained in the intencive care unit of the IndraprasthaApolo Hospital from 25.1.2011 to 28.1.2011, thereafter he was shifted to private ward and discharged on 1.2.2011. He was not in a position to carry out his daily activities by himself but the same were carried out with the help of family members and others he was not in position toappear in the Court, in such circumstance, he moved an application under Section 205 Cr.P.C. praying therein to exempt his personal appearance by annexing entire medical and the order dated 11.7.2008 by which he was released from the jail on furnishing personal bond and sureties bonds. The applicant was released on bail and the order dated 11.7.2008 releasing the applicant passed by learned Special Judicial Magistrate (CBI) Ghaziabad can only be passed under Section 437 Cr.P.C. There was no other provision empowering the Magistrate to grant bail but the learned Special Judicial Magistrate (CBI) rejected the application under Section 205 Cr.P.C. and issued bailable warrant against the applicant on 28.2.2011 without any proper reason even without cancelling his bail, which is illegal. The application moved by the C.B.I. not seeking further judicial remand to the accused cannot be moved under Section 169 Cr. P.C. as the applicant was in judicial custody, he was not in custody of the police. The provisions of Section 169 Cr.P.C. are empowering to Officer In -charge of the police station not to forward the accused to a Magistrate if such person is in custody, release him on his executing a bond with or without sureties. The provisions of Section 169 Cr.P.C. are not empowering the Magistrate to release the accused on bail.;