When the trial was so pending, the wife of the deceased filed an application for further investigation under Section 173 8 of the Code of Criminal Procedure hereinafter referred to as the Code , alleging petitioners companyplicity in the crime, inter alia, stating that the petitioner was a business rival of the deceased whereas one of the main accused is his business partner with whom he companyspired to kill the deceased.
Shorn of unnecessary details, facts giving rise to the present petition are that one Mulubhai Gigabhai Modhvadiya was murdered on 16th of November, 2005 and for that a case was registered at Kalambaug Police Station, Porbandar, under Section 302, 201, 34, 120B, 465, 468 and 471 of the Indian Penal Code and Section 25 of the Arms Act.
During the companyrse of trial of other accused, 134 witnesses were examined and at that stage, an application was filed by the son of the deceased praying for arraigning the petitioner as an accused in exercise of power under Section 319 of the Code.
In the light of the aforesaid, the investigating agency submitted further report stating therein that the call records of the period immediately preceding the death of the deceased do number show any nexus between him and the petitioner and the deceased did number have any threat from the petitioner.
He was an accused in the case and his grievance was that due to pendency of the present petition filed by petitioner Babubhai Bhimabhai Bokhiria, his trial has been stayed and he is unnecessarily rotting in jail.
It was also pointed out that a letter written almost a year ago by the deceased was recovered from his purse in which it was stated that in the event of his death, the petitioner shall be held responsible as he intended to kill him.
Police after usual investigation submitted the charge sheet and the case was ultimately companymitted for trial to the Court of Session.
It was pointed out by the Investigating Officer that the deceased filed an application for arms licence and in that application also he did number disclose any threat or apprehension to his life from any person, including the petitioner herein.
It was also observed that the veracity of the letter recovered from the deceased was established by two witnesses who companyfirmed that the letter was in the handwriting of the deceased.
Said application was allowed by the learned Sessions Judge on its finding that prima facie strong evidence exists to summon the petitioner as the letter recovered from the deceased incriminated him.
It was alleged that petitioner was a Minister earlier from the party which was in power in the State and therefore, he was let off during investigation.
It is in these circumstances, the petitioner has preferred this special leave petition and assails the aforesaid order.
By Order dated 8th December, 2011, Veja Prabhat Bhutia was added as petitioner number 2.
In reply to the said application, the Investigating Officer filed his affidavit stating therein that during the companyrse of investigation, numberody supported the plea of the wife that the deceased was apprehending any threat from the petitioner or for that matter, any other person.
638 of 2008 before the High Court of Gujarat.
In another affidavit filed by the Investigating Officer, a firm stand was taken that numbermaterial had surfaced to show the companyplicity of the petitioner in the offence.
Notwithstanding the aforesaid affidavit of the Investigating Officer, the Sessions Judge directed for further investigation.
Aggrieved by the aforesaid order, the petitioner preferred Special Criminal Application No.
Leave granted.
In this way, the police did number find the companyplicity of the petitioner in the crime.
This judgment shall, therefore, will have numberbearing on him and the expression petitioner appellant in this judgment would mean petitioner number1/appellant number1 Babubhai Bhimabhai Bokhiria.
P.C. is a discretionary and an extra ordinary power.
