Why the Aarushi trial is like a game of chess

Last Updated: Mon, Aug 06, 2012 15:02 hrs

Court cases are like games of chess. But with a few vital differences: a legal battle isn't limited to just one board or playing area; and unlike in chess, not making a move in court is a strategic move in itself.

On Monday, the scene in the Aarushi-Hemraj murder case shifted to the imposing premises of the Supreme Court of India. The court was to decide on co-accused Nupur Talwar's bail, but will now only do so next week.

The CBI was expected to file its reply opposing bail for Nupur, but did not. It's counsel told the court that the reply is ready, just not filed yet. The matter could not proceed.

Different aspects of the Aarushi case are being fought at different levels of the judiciary, but the layers are linked -- what happens in one affects the others.

On Tuesday, the Allahabad High Court is due to hear a CBI plea for the cancellation of Aarushi's father Rajesh Talwar's bail. In Ghaziabad, on the other side of Uttar Pradesh, the special CBI court will continue recording the deposition of the prosecution witness B.K. Mohapatra, the DNA and forensics expert.

In the Supreme Court, the prosecution must file its reply on why Nupur Talwar should not get bail by Thursday, by which time the Allahabad ruling it is waiting for will have come.

Nupur's petition before the Supreme Court comes after all lower courts rejected her bail applications. The defence's main ground for seeking bail is the principle of parity.

In January, the Supreme Court had ruled that Aarushi's father Rajesh Talwar may continue on bail. As a co-accused, Nupur, therefore, should be shown the same consideration argues the defence. Of all the suspects in the case (her husband and the three servants) she has also done the most time -- she has been in custody since 30 April.

The CBI moved the Allahabad High Court when its plea to cancel Rajesh's bail was rejected by the special court in Ghaziabad.

Should the High Court take the unusual step of reversing a Supreme Court order and quash Rajesh's bail, the grounds for Nupur's petition become decidedly weaker. Life also gets complicated for Rajesh, with the possibility of prison time and the certainty of yet another court battle.

So far, the lower courts have consistently affirmed Rajesh's bail, and consistently rejected Nupur's.

A senior prosecution counsel put the delay in filing a reply down to bureaucracy, rather than strategy. He explained that the High Court's ruling was 'only part' of the picture, but admitted that the side that gets the decision in Allahabad comes to Delhi next week with an advantage.

Counsels for the defence said the delay was a blatant pressure tactic, but were confident that the Allahabad court would rule in their favour. After all, they argue, the only court that can reverse a Supreme Court order is the Supreme Court.

Monday's proceedings lasted barely a couple of minutes. Justices Khehar and Patnaik heard CBI counsel Sidharth Luthra explain that the prosecution needed time to file its reply challenging Nupur Talwar's petition.

Harish Salve, appearing for Nupur, voiced his concern over the timing of the matter in Allahabad. The court set 13 August as the next date for hearing. Salve bowed deeply, in signature style. And with that, the proceedings in 'case 302' (a number assigned by chance) at court number 13 came to an end.

On Tuesday, Nupur Talwar will appear in the Ghaziabad trial court as usual from Dasna jail. In Allahabad, the High Court will decide on whether Rajesh should go back there as well.

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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 avirook@gmail.com

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