The Supreme Court bench hearing Nupur Talwar’s bail plea has deferred its decision on whether bail should be granted or not, to 17 September. Dr Nupur Talwar is a co-accused, along with her husband Rajesh Talwar in the Aarushi-Hemraj murder case. Monday’s order by justice A.K. Patnaik and justice J.S. Khehar means that Nupur remains in Ghaziabad’s Dasna jail at least till the next hearing. She was arrested on 30 April. Her husband Rajesh, is out on bail through a different order of the Apex Court.
The legal battle in the murder case is being fought on several fronts. As the trial proceeds in a special CBI court in Ghaziabad, the issue of bail for the accused is being contested in the Allahabad High Court (Rajesh) and the Supreme Court (Nupur).
Nupur approached the Supreme Court after being denied bail by all lower courts. In January 2012, the Supreme Court said that her husband Rajesh would “remain on bail”, but the CBI has challenged the interpretation of this order by pleading that the Supreme Court never actually granted Rajesh bail. The lower courts rejected this plea and it is now pending with the Allahabad High Court.
Monday’s arguments lasted for about an hour. The defence’s star counsel Harish Salve was present, but played a ‘non-speaking’ role. His colleague K.V. Vishwanathan (misreported as ‘C.S. Vishwanathan’ on many newspaper websites), did the talking.
Broadly, the basis for the defence’s arguments were:
1) Parity: Rajesh was out on bail. Why deny Nupur?
2) Parameters: The prosecution has never said the Talwars planned the murders. Both the U.P. police and the CBI have said they took place because of “grave and sudden provocation”. This attracts the less severe (and therefore more bailable) section 304, rather than 302.
3) Duration: The trial could take years: more than 140 witnesses might have to be examined.
4) Gender: That the accused was a woman, a mother who had lost her child. She should, for the sake of equality, be treated the same way as her male co-accused.
Appearing for the prosecution, additional solicitor general Sidharth Luthra, made short work of the fourth, humanitarian, argument with one of his own: there was another victim here, he said, Hemraj. “Are we going to brush him aside because he was a servant?”
Luthra made the case that the CBI feared witnesses would be influenced if Nupur was “at large”. One of the charges against the Talwars—and a basis for the rest of the case—is that they tampered with evidence. They must not be allowed to do so again.
The court asked why these witnesses had not been examined already and who they were. Luhtra produced a list of 13 and hastened to add that the trial was being conducted speedily and that it should be over “by 31 December”.
On the list of 13, he assured the court after whispered consultations with the the CBI’s trial court counsel, that all of them would be examined in a month.
The judges conferred, and set 17 September for the next hearing: allowing the time Luthra claimed it would take to examine everyone on his list.
The order is short, but pregnant with implications:
Should the Allahabad High Court cancel Rajesh Talwar’s bail and send him to prison between now and 17 September, the grounds of parity no longer hold for the defence. If the honourbale High Court rejects the prosecution’s case, however, nothing much changes: the Supreme Court is hardly expected to be led by a lower court on the interpretation of something it authored (i.e. Rajesh should “remain on bail”.)
In the three months that the trial court has examined witnesses, process, power cuts, strikes, cross-examination and ‘condolence’ (please refer to earlier articles) have contributed to keep the count of witnesses examined to 6. The additional solicitor general has assured the Supreme Court that 13 will be examined in a month (with “three hearings a week” if need be).
“Wrapping up” the examination also means completing the cross-examination. But the length of time this takes, depends on the pleasure of the trial court and the defendant’s fundamental right to satisfactory cross-examination. If the defence eats up time cross-examining any/some of these witnesses and this results in all 13 not being examined by the time committed by the CBI, the agency can transfer the responsibility on to the defence.
The court has not guaranteed that bail will be granted if the CBI’s fears about the witnesses are allayed. On the other hand, it has specifically asked the petitioner to “cooperate in the cross-examination of the witnesses”.
Electronic boards, not unlike the ones you might have seen at the Olympics, are all over the otherwise traditional premises of the Supreme Court, listing matters. There is one in court number 13 as well. If anyone was keeping score on it on Monday, it would read: CBI v Talwars: 1-0. More on Aarushi trial: Complete Coverage - Aarushi Trial Special
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Currently a visiting fellow at INSEAD, France, Avirook Sen has been a journalist and writer for over 20 years. A former resident editor of Hindustan Times (Mumbai) and editor of Mid-Day, he has written with passion and insight on subjects as varied as sport and terrorism for top publications across the world. His first book, Looking for America, was published in 2010 to enthusiastic reviews. You can write to him at firstname.lastname@example.org