[1] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 2633 OF 2006 HITESH MEGHJI SHAH ...PETITIONER VERSUS. 1. THE STATE OF MAHARASHTRA ...RESPONDENT. AND ANR. MR. NAVIN CHOMAL FOR THE PETITIONER. MRS. U.V.KEJRIWAL APP FOR THE STATE. MR. R. SATYANARAYAN I/B. SHRIKANT BHAT ADVOCATE FOR THE INTERVENOR. CORAM CORAM CORAM : : : SRI R.M.S.KHANDEPARKAR AND SRI R.M.S.KHANDEPARKAR AND SRI R.M.S.KHANDEPARKAR AND SRI SRI SRI A.A. A.A. A.A. SAYED, JJ. SAYED, JJ. SAYED, JJ. DATE DATE DATE : January 14, 2008. : January 14, 2008. : January 14, 2008. P.C. :- 1. Heard. [2] 2. By the present petition, the petitioner is challenging the order, dated 8th September, 2006, passed by the Sessions Court, Mumbai in Misc. Application No. 402 of 2006, filed in Sessions Case No. 1144 of 1998. The petitioner has also prayed for a direction against the respondents to restrain them from taking coercive action against the petitioner or subjecting him to Narco Analysis Test without the permission of this Court. 3. Brief facts of the matter are that on 30th April, 1996, one lady, namely, Pawandevi Ravindra Jain was found dead in the bedroom of flat No.1 Govind Kunj Building, Jawharlal Nehru Road, Mulund (W), Mumbai and the medical examination disclosed ligature marks on the neck of the deceased lady apart from various other things which were revealed creating doubt about the cause of the death of the lady. In the course of investigation, statement of the petitioner came to be recorded as witness and as the investigation progressed, Narco Analysis Test was conducted on the accused person wherein reference came to be made to the petitioner as being suspect in the alleged murder. Further, according to the investigating agency, there was variance in the two statements of the petitioner recorded at different point of time. An application came to be filed by the original complainant being application No. 341 of 2006 in the case pending before [3] the Sessions Court for further investigation in the matter, which came to be dismissed on 12.3.2006. Thereafter, the present application No. 402 of 2006 came to be filed and the same was allowed under the impugned order. 4. The impugned order is sought to be challenged on three grounds. Firstly that once the identical application came to be rejected earlier and there being no change in the circumstances disclosed, the trial Court could not have granted the second application on the same ground on which earlier application was rejected. Secondly, it is the contention on behalf of the petitioner that there is no material for issuance of direction for investigation under Section 173(8) of the Code of Criminal Procedure by the Sessions Court. Thirdly that the application is purely afterthought. 5. As regards the first ground of challenge is concerned, perusal of copy of the Misc. Application No. 341 of 2006, a copy of which is placed on record by the learned advocate for the petitioner, discloses that by the said application the complainant had prayed as under :- "(a) This Hon’ble Court be pleased to direct the present Investigating Agency i.e. DCB CID, Chembur Unit, Near Chembur Police Station, to [4] take Hitesh Meghjui Shah, residing at Flat No.3, 1st Floor, Govind Kunja, Nehru Road, Mulund West, Mumbai and to further take him to Bangalore for lie-detection test, Brain mapping test and Narco Analysis and further record his statement in light of these scientific tests and to do such further investigation as may be necessary in light of the scientific tests on the accused already carried out and in light of the findings that may emerge after tests on Hitesh Meghji Shah. (b) The Hon’ble Court be pleased to direct the Commissioner of Police, Mumbai to appoint a Senior level Officer to carefully study the Narco Report of Nirmal Govind Khona and to initiate action under the law against the accused Nirmal Govind Khona in respect of the murders of Laxman Ahuja (case registered with Chembur Police Station C.R.No. 796/1992 u/s.302,34 IPC), and of Kalpana Nirmal Khona, (case registered as suicide with Mulund Police Station in 1995) 6. Apparently the said application was essentially for a direction to conduct lie-detection test, brain mapping test and narco analysis test of the petitioner herein and further to record his statement and to do [5] further investigation as may be necessary in the light of scientific tests as may be carried out upon the petitioner. 7. The present application, which has been filed and allowed under the impugned Order is for the following reliefs :- "(a) In light of the report of Narco Analysis, lie detector test and brain mapping test of Accused Nirmal Khona, the Hon’ble Court be pleased to order Joint Commissioner of Police ( Crime) Mumbai to investigate the role of Hitesh Meghji Shah in the murder of Pawandevi Rajendra Jain. (b) The Hon’ble Court be pleased to ask the Police to subject hitesh Meghji to such interrogation and such tests like brain mapping, lie detected and Narco Analysis if required as will disclosed his true and complete role in the murder of Pawandevi Rajendra Jain. (c) The Hon’ble Court be pleased to issue notice to Hitesh Meghji of the present Application and pas such orders as the Hon’ble Court may deem fit and proper." [6] 8. Apparently, the present application is essentially for the reliefs in the nature of further investigation to find out the role of the petitioner in the alleged murder of Pawandevi Rajendra Jain and for the purpose of directions to the police to conduct necessary investigation and tests, including Narco Analysis Test. 9. As regards the earlier application, it is not in dispute that the same was rejected on technical ground for non-joinder of necessary parties and not on merits. Being so, merely because the earlier application was rejected on technical ground that cannot come in the way of the Court to consider the second application on merits and question of considering whether there is any change in the circumstances or not cannot arise. The first ground of challenge therefore is of no substance. 10. As regards the second ground of challenge, Section 173(8) of the Code of Criminal Procedure provides that nothing in the said 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 whereupon such investigation, the officer incharge of the police station obtains further evidence, oral or documentary, [7] he shall forward to the Magistrate 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). 11. It is not in dispute that the impugned order has been passed by the Sessions Court during the pendency of the Sessions Case No. 1144 of 1998. It is the contention of the petitioner that though the power of the Court to issue direction for investigation cannot be disputed, the police have already exercised such power and the evidence collected by the police nowhere discloses the involvement of the petitioner and that is apparent from the fact that the petitioner was summoned as witness in the matter. In this regard the contention on behalf of the respondent is that the Narco Analysis Test conducted upon the accused person is sufficient to create doubt about the conduct of the petitioner and his involvement in the crime and further that the two statements of the petitioner, which were recorded by the police disclose variance on material aspects of the matter and, therefore, it is necessary to conduct further investigation. Once the investigation agency finds variance in the two statements of the petitioner and further Narco Analysis Examination of the accused person creates suspicion [8] about involvement of the petitioner in the alleged murder, merely because on earlier occasion the investigating agency had cited the petitioner as witness in the case, that would not preclude the investigating agency from seeking permission for further investigation to ascertain whether the petitioner was also involved in the alleged murder. The provision of law comprised under Section 173(8) cannot be so construed to mean that once the investigating agency finds a person to be not involved in the matter, thereafter it is totally restrained from conducting further investigation to ascertain involvement of such person or persons, even when the materials which come to the notice of the investigating agency subsequent to the earlier investigation reveal possibility of the involvement of such person or persons in the allege offence. Considering the same, therefore, merely because the petitioner was earlier cited as the witness in the matter, the investigation agency cannot be prevented from conducting further investigation to ascertain whether the petitioner was also involved in the alleged offence. 12. As regards the third ground, undoubtedly the application for Narco Analysis Test of the petitioner filed by the police authorities before the Sessions Court refers to the earlier application No. 402 of 2006, filed by the complainant. That by itself will [9] not bar the investigating agency from conducting further investigation. The materials before it prima facie disclose some sort of involvement of the petitioner in the matter. Such material is sufficient to raise reasonable suspicion about his involvement. Considering the same, it will be too early for this court to interfere in the matter and to stall further investigation in the matter. It has to be borne in mind that the matter relates to an offence of murder and it cannot be disputed that the real culprit must be found out and should be punished for the alleged offence. In case there is any involvement of the petitioner in the alleged murder, certainly the investigating agency should be allowed to conduct proper investigation in that regard. Once it is clear that the investigation to ascertain the petitioner’s involvement, if any, in the matter is required to be conducted, it would include all types of investigation and scientific tests. 13. Apart from contending that the petitioner is being harassed at the instance of the complainant, no substantial ground as such has been revealed to object to the Narco Analysis Test and other scientific tests. In any case, whether such application would be allowed or not is an issue to be urged before the Sessions Court and nothing prevents the petitioner from placing his objections in that regard before the Sessions [10] Court. 14. For the reasons stated above, therefore, there is no case for interference in the impugned order. Consequently, the petition is dismissed. ..... [R.M.S.Khandeparkar,J.] [R.M.S.Khandeparkar,J.] [R.M.S.Khandeparkar,J.] [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.] [11] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 316 OF 2007 IN WRIT PETITION NO. 2633 OF 2006 HITESH MEGHJI SHAH ... APPLICANT. VS. THE STATE OF MAHARASHTRA ... RESPONDENTS. AND RAJENDRA PRASAD JAIN ... INTERVENOR. MR. NAVIN CHOMAL FOR THE PETITIONER. MRS. U.V.KEJRIWAL APP FOR THE STATE. MR. R. SATYANARAYAN I/B. SHRIKANT BHAT ADVOCATE FOR THE INTERVENOR. CORAM CORAM CORAM : SRI R.M.S.KHANDEPARKAR AND : SRI R.M.S.KHANDEPARKAR AND : SRI R.M.S.KHANDEPARKAR AND SRI SRI SRI A.A. SAYED, JJ. A.A. SAYED, JJ. A.A. SAYED, JJ. DATE DATE DATE : January 14, 2008. : January 14, 2008. : January 14, 2008. P.C. 1. In view of the disposal of the petition, the miscellaneous application No. 316 of 2007 does not survive and it is disposed of accordingly. ..... [R.M.S.Khandeparkar,J.] [R.M.S.Khandeparkar,J.] [R.M.S.Khandeparkar,J.] [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]