JUDGMENT :

1. Rule.

2. This revision application under Sections 397 and 401 read with Section 482 of the Criminal Procedure Code, 1973 (CrPC) is filed by the applicant - original accused assailing the order dated 01.02.2021 passed in Criminal Revision Application No. 1/2021 by the learned 6th Additional Sessions Judge, Khambhat, whereby, the said application, filed at the instance of the respondent herein - State, came to be allowed. By the said order, the learned Sessions Judge set aside the order dated 23.12.2020, passed below Exh. 99 in Criminal Case No. 129/2017, by the learned Judicial Magistrate First Class, Tarapur by which, the learned Magistrate had rejected the application filed by the respondent - State for further investigation under Section 173(8) CrPC by taking voice sample of the applicant - original accused and get the same analyzed.

3. Shearing off the unnecessary details, the facts are that an FIR being II-C.R. No. 3001 of 2014, registered with Tarapur Police Station, District: Anand for the offences punishable under Sections 504 and 506(2) of the Indian Penal Code, 1860 (IPC) is filed against the present applicant, for which, Criminal Case No. 129 of 2017 is registered in the Court of learned Judicial Magistrate First Class, Tarapur. In the said proceedings, the respondent - complainant filed an application, Exh. 99 under Section 173(8) CrPC seeking further investigation, to be precise, to take voice sample of the applicant - accused for voice spectrography. The said application came to be allowed by the learned Magistrate by an order dated 23.12.2020. The said order was the subject matter of revision before the learned Sessions Judge and the learned Sessions Judge, vide order dated 01.02.2021 allowed the said revision application, setting aside the order of learned Magistrate. Accordingly, the grieved applicant - accused is before this Court by this revision application.

4. Heard, learned advocate Mr. Virat Popat for the applicant - accused and learned Public Prosecutor Mr. Mitesh Amin with learned Additional Public Prosecutor for the respondent - State.

4.1 The crux of the submissions of the learned advocate for the applicant is that the learned Sessions Judge ought not to have allowed the revision in view of the fact that the trial is on its fag end and almost all the witnesses have been examined and only the investigating officer has remained to be examined. It is submitted that the powers to grant further investigation under Section 173(8) are available upto the pre-trial stage only and once the trial commences, such powers cease to be exercised. The learned advocate for the applicant further submitted that even otherwise, if the facts of the case are referred to, it is the case of the prosecution that the applicant - accused had abused and threatened the original complainant on phone and they are also having the recording. Accordingly, the prosecution could very well collect such voice sample of the applicant at the time of investigation at first instance and send the same for voice spectrophy, however, it is not done so and now, at the fag end of trial, only with a view to fill up the lacunae in the investigation, such an application is preferred, which is against the settled principle of law and is not permissible. However, the learned Sessions Judge has failed to take into consideration such an important aspect of the matter and thereby, has erred in setting aside the order of the learned Magistrate. It is submitted that whether further investigation is to be ordered or not, rests upon the discretion of the learned Magistrate and the discretionary order could not have been disturbed by the learned Sessions Judge in revision and thereby, the learned Sessions Judge has exceeded jurisdiction by interfering in such an order passed by the learned Magistrate. Accordingly, it is urged that this application may be allowed and the order impugned herein may be set aside.

4.2 In support, the learned advocate for the