(1.)The petitioners are the daughters of the deceased who was allegedly murdered by respondent No. 2 and some others. The Police, after completing the investigation, submitted charge-sheet only against respondent No. 2. The case was committed to the Court of Session where the present petitioners gave an application Ex. 5 asking the learned Sessions Judge to order further investigation, and the learned Sessions Judge was pleased to reject the said application, on the ground that under S.319 of the Code of Criminal Procedure, he had powers to implead a person not named as an accused, as an accused, if after going through the evidence he thought it fit, but as the evidence was not recorded, the learned Sessions Judge thought that the application deserved to be rejected and he accordingly rejected the same. Being aggrieved by the same, the petitioners have preferred the present revision application, and the only question which was posed before this Court was as to whether once the case has been committed to the Court of Session powers of further investigation given to the Magistrate under sub-clause (8) of S.173 of the Criminal Procedure Code can be exercised by the Sessions Judge. The answer to the question would clearly be in the affirmative. It was a mistaken impression on the part of the learned Sessions Judge to have thought that the application was given under S.319 whereas in fact it was an application asking him to further investigate the case. S.173, sub-clause (8) of the Code of Criminal Procedure reads as under :
"173. (8) Nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-Section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-Sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-Section (2)."
(2.)The Court solicited the assistance of senior Advocates, who were present in the Court, and sufficient time was granted to them for preparing and assisting the Court, and the learned Advocates M/s. H.K. Thakore, K.L. Abhichandani, B.C. Patel, Anil S. Kothari and Nitin Amin as well as the learned Government Pleader Mr. Mayur D. Pandya assisted the Court on all aspects.
(3.)The main thrust of the argument was that if under Sub-Section (8) of S.173 the Magistrate has powers to further investigate, or if he had powers to ask the police to further investigate the case, then it would not stand to reason that the Sessions Court, which is a superior Court, will not be possessing those powers to ask the police to investigate the case further. The learned Sessions Judge's view that under S.319 on evidence before him he could have impleaded somebody as an accused, who was not named as an accused, is correct, but his impression that the application was under S.319 was incorrect. The application was in fact under S.173 Sub-Section (8), as stated above. If the Magistrate had powers to investigate the case further, even after the charge-sheet is submitted, and if the police had powers to independently investigate the case further after the charge-sheet was submitted, then it would not stand to reason and would not sound logical that the Sessions Judge, who was seized of the matter on the matter being committed to him, would not have such powers. The learned Sessions Judge's view that the powers can be exercised only at the stage of inquiry and not at the stage of trial does not appear to be sound inasmuch as the matter was adjourned for recording of evidence and before any evidence could be recorded this application Ex. 5 was submitted. If the investigation of the police leaves something to be desired or if a wrong person has been impleaded as an accused, or a real culprit has been exonerated, then from the material before it, the Court may come to the conclusion that further investigation is necessary. Such investigation can always be ordered by any Court and every Court has powers to do certain things which are required to do justice between the parties. I, therefore, feel that the matter requires to be allowed. The order of the learned Sessions Judge requires to be set aside and he is required to decide the application Ex. 5 afresh. The decision of this Court need not in any way fetter his powers to decide the matter in accordance with the merits because this Court has not pronounced on the merits of the application. If the learned Sessions Judge is of the view that such an application should have been given before the learned Magistrate, after the charge-sheet was filed, or that the application is belatedly given, or that it is not given bona fide, or that it has been given with certain ulterior motive to harass certain persons, then necessarily the learned Sessions Judge will be justified in rejecting it. If on the contrary he comes to the conclusion that certain persons who should have been impleaded as accused persons have been wrongly exonerated, then he may decide it the other way round. The decision of this Court scrupulously avoids to make any pronouncement on the merit of the application. This Court also makes it clear that such applications, if given before the Sessions Court, shall always be decided on merits and such powers shall be sparingly exercised. But to propound a proposition that the Sessions Judge has no powers to order further investigation and only the Magistrate would have powers under S.173(8) would sound illogical. The petition is, therefore, accordingly allowed with the above observations. The matter is sent back to the learned Sessions Judge, who shall decide the same according to law and dispose of the same expeditiously. Rule is made absolute to the above extent.