Thanks, dear Ashok for your comments.
The issue came up recently in a case which I had argued before the Sessions Judge at Delhi. The case was that one V died in the company of his two friends and they reported it to police as a case of hit and run accident on head on collision by a blue line bus. The Police filed the FIR u/s 279/304. In post mortem no external injuries on the dead body were found and his three ribs on bothside were found broken and lever punctured. The police filed a closure report of untraced hit and run accident case. The family doubted murder. On application u/s 200 CRPC, the Magistrate ordered the addition of Sec. 302 IPC in FIR. The police again filed the closure report labeling it a untraced accident case. We filed the protest petition and the MM allowed the same. The MM rejected the police report by giving a finding that police had not conducted the proper investigation. The MM passed a detailed order and took cognizance of offence and ordered committal of case to sessions.
Now before Sessions Judge, there was only the order of the committal order of MM and the rejected tainted report of police. AT this juncture, we had filed the application before Sessions Judge requesting for further investigation by the Crime Branch of Delhi police. Another application u/s 193 was filed praying the Sessions Judge that if he has no power to order further investigation, he should remand back the case to Magistrate for proper investigation.
The PP opposed the application. The Sessions Judge was also of the view that he neither had the power to order further investigation nor to remand back the case to magistrate. In my argument, I had cited the law laid down by apex court in Case of:
Vinay Tyagi vs Irshad Ali:
52. It appears, the trial court may have three options, firstly, it may accept the application of accused for discharge. Secondly, it may direct that the trial may proceed further in accordance with law and thirdly, if it is dissatisfied on any important aspect of investigation already conducted and in its considered opinion, it is just, proper and necessary in the interest of justice to direct `further investigation', it may do so.
Hasnabhai Vs State of Gujrat, as cited by you,
Virendra Prasad Singh vs Rajesh Bhardwaj:
16. It is also extremely surprising that the respondent No. 1/accused should have moved the High Court instead of moving the Sessions Judge before whom the matter was pending after all cognizance was taken by the Magistrate on the basis of the charge sheet. Thereafter he also on 16 August, 2010 proceeded to commit the matter for trial by the Sessions Judge and the matter was pending
before the Sessions Judge. Under such circumstance, we completely fail to understand the propriety of the accused moving the High Court, firstly through his mother and secondly himself, more particularly, under Section 482, Cr.P.C. instead of going before Sessions Judge where the prosecution was pending and claiming further investigation under Section 173(8) Cr.P.C.
I had also cited the above quoted judgment of the Gujrat High Court directly on the issue. Yet the Sessions Judge is not satisfied of his power and is insisting on more direct law. I discussed the issue with a few Sessions Judges In Delhi but no one seems to sure of his powers. In this context I seek the opinion of all experts.