In an affidavit filed before the apex court, CBI's superintendent Neelabh Kishore alleged that Rajesh, in his appeal against the trial court, had deliberately taken a false plea that he was released on bail in July 2008 which was totally contrary to facts.
A bench of justices B Sudershan Reddy and S S Nijjar which took on record the affidavit after it was mentioned by the CBI counsel said it would take up the issue on Monday when the matter would come up for hearing. The CBI clarified that Rajesh was released after the agency did not seek extension of his judicial custody as at that time the investigators did not find sufficient material against him.
Seeking dismissal of the plea by Rajesh and his dentist wife Nupur challenging the criminal proceedings initiated against them for the murders, the CBI alleged the bail application annexed along with the appeal was forged as no such document existed.
Contrary to the dentist's claim that he had moved a bail application under Section 437 of the Criminal Procedure Code, the CBI said that the trial court had ordered Rajesh's release after the agency filed an application under Section 169 of CrPc. The agency had then told the special court that it did not have sufficient evidence against him at that stage.
The CBI further pointed out that Rajesh's bail claim was not mentioned in Nupur's separate appeal, challenging the same criminal proceedings against the Talwars. The CBI while referring to the "discrepancy" said Nupur had stated clearly that her husband was set free after CBI did not seek his further remand.
According to the agency the trial court on March 3 issued bailable warrants that were executed against the couple on March 10, but the Talwars did not disclose this fact before the SC.
"It is a settled law that at the stage of taking cognisance, sufficiency of evidence for conviction is not to be considered at that stage. It is further submitted that it is settled law that even at the stage of framing of charge, which is subsequent to the summoning of accused, truth, veracity and effect of the material is not to be judged", the CBI said seeking dismissal of the appeal.
The agency said Rajesh was accorded an opportunity to present his case by filing a protest petition, though it wasn't required under the law.
On March, 19 the Supreme Court despite it being a public holiday held an urgent hearing at 7 pm and stayed the Allahabad High Court order that had refused to set aside a special Ghaziabad CBI court direction, summoning the dentist couple in the murder case.
The HC had dismissed their plea, seeking quashing of the proceedings initiated by the lower court which not only refused to accept the closure report of the CBI but also summoned the couple as accused in the case.
14-year-old Aarushi was found dead with her throat slit at her Noida residence on the outskirts of Delhi on May 16, 2008 and the body of their domestic help, Hemraj, was found on the terrace the next day.
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