S.173(8) CrPC | Power Of Further Investigation Available Upto "Pre-Trial Stage" & Not Beyond That: Gujarat High Court

"It is trite principle of law that with a view to fill up the lacunae in investigation, such powers of directing further investigation cannot be exercised…"

The Bench was hearing a revision application under Section 397 CrPC filed by the Applicant-accused assailing the order of the Sessions Judge which allowed the revision application filed by the State seeking permission for further investigation. The Magistrate court trying the offence had rejected the application.

The Applicant herein was accused of abusing and threatening the complainant over telephone and was booked for offences u/s 504 and 506(2) of the IPC. The Prosecution sought to undertake further investigation by collecting the voice sample of the accused at the "fag end" of trial.

The chief contention of the Applicant was that this power u/s 173(8) was only available at a pre-trial stage. Additionally, it was argued that the Prosecution could have collected his voice sample at the time of initial investigation and now, only with a view to fill up the lacunae in the investigation, such an application was preferred.

The Respondent submitted that the voice sample was necessary for a fair and impartial trial and therefore, the order of the Sessions Judge was proper. Reliance was placed on Ritesh Sinha v. State of Uttar Pradesh and Another, (2019) 8 SCC 1 to bolster this contention.

The High Court noted that the application to collect the voice sample was moved at the stage of trial when almost all witnesses had been examined and the trial was towards its end. Perusing Sec 173(8), it referred to Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, where it was held that the power of the police to further investigate the offence continues right till the stage the trial commences.

Reliance was placed on Athul Rao v. State of Karnataka and Another, (2018) 14 SCC 298 where the Supreme Court had held that further investigation was not proper when the case had been set down for trial.

The High Court also rejected the reference to Ritesh Sinha by the Respondent since it pertained to the powers of the Magistrate to collect the voice sample of the accused and not the aspect of directing further investigation u/s 173(8) at pre-trial or trial stages.

Thus, the revision application succeeded.

Case No.: R/CR.RA/164/2021

Case Title: POONAM MADHA PARMAR v/s STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 305