SATISHKUMAR NYALCHAND SHAH versus STATE OF GUJARAT & ORS. on 2 March 2020

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 24.12.2018 passed by the High Court of Gujarat atAhmedabad in Criminal Miscellaneous Application No. 1 of 2018 inDSpecial Criminal Application No. 8704 of 2018, by which the High Courthas dismissed the said application preferred by the appellant hereinpermitting him to be joined as respondent No. 4 in the said SpecialCriminal Application No. 8704 of 2018, which was filed by the privaterespondent herein seeking further investigation against other persons(other than the appellant who is one of the accused and is already charge-Esheeted), the appellant has preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:

That in an earthquake on 26.01.2001, number of buildings collapsed,including the building named Shikhar Apartment situated at VillageFVejalpur, Ahmedabad. That due to the collapse of the said Shikharapartment, 98 persons died. That the private respondent herein-the victimlodged the FIR, being CR No. I-58 of 2001 with the Satellite PoliceStation against the appellant and others for the offences punishable underSections 304, 418, 420 and 114 of IPC and Section 3(2)(c)&(d), Section7(1)(i)(ii)2 and Section 42 of the Gujarat Ownership of Flats and forGcontravention of GDCR, Building Bye-laws. That the Police Inspector,Satellite Police Station filed the charge-sheet against the appellant andothers on 02.05.2001 for the aforesaid offences. It appears that after anumber of rounds of litigations, the appellant and some of the otheraccused came to be charge-sheeted. However, three accused persons,Hnamely, Yagnesh Vyas, Sanjay Shah and Ronak Shah were not charge- sheeted. The matter was carried up to this Court by way of CriminalAppeal No. 1426 of 2017. It appears that during the hearing of theaforesaid appeal by this Court, there was progress in the investigationand the charge-sheet was filed against the accused Yagnesh Vyas andSanjay Shah who were also arrested. Therefore, while disposing of theaforesaid Criminal Appeal No. 1426 of 2017 vide order dated 16.07.2018,this Court observed that if the private respondent herein-the Victim hasany objection against dropping of one another accused, he may fileobjection and can file a protest petition in the Trial Court. This Court alsoobserved that the private respondent herein-the Victim can also carryout proceedings in an appropriate Court against one Shri M. N. Bhaumikfor not prosecuting him. That, thereafter the private respondent herein-the Victim filed an application before the learned Chief Judicial Magistrate,Ahmedabad (Rural) under Sections 173(8) and 156(3) CrPC for furtherinvestigation against Shri Bhaumik. That by order dated 29.08.2018,learned Chief Judicial Magistrate, Ahmedabad (Rural) dismissed the saidapplication on merits as well as on the ground that after the charge-sheet is filed, the Magistrate has no jurisdiction to order for furtherinvestigation under Section 173(8) CrPC.

2.1 Feeling aggrieved and dissatisfied with the order passed bythe learned Chief Judicial Magistrate dated 29.08.2018 passed in anapplication below Ex.275(C) in Criminal Case No. 853 of 2001, the privaterespondent herein has preferred the Special Criminal Application No.8704 of 2018 before the High Court of Gujarat. In the said Special CriminalApplication, the appellant herein, one of the accused who is alreadycharge-sheeted, submitted an application permitting him to be joined asparty respondent No. 4 in the said Special Criminal Application. By theimpugned Judgment and Order, Judge of the High Court has dismissedthe said application. Hence, the present appeal.

3. Shri Maninder Singh, learned Senior Advocate has appearedon behalf of the appellant; the private respondent herein has appearedas a party-in-person and Mr. Aniruddha P. Mayee, learned Advocatehas appeared on behalf of the respondent-State of Gujarat.

3.1 Shri Maninder Singh, learned Senior Advocate appearing onbehalf of the appellant has vehemently submitted that in the facts andcircumstances of the case the High Court has committed grave error inrefusing to implead the appellant-co-accused as a party in the writ petitionfiled by the victim.

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A3.2 It is further submitted by Shri Maninder Singh, learned SeniorAdvocate appearing on behalf of the appellant that the High Court hasnot properly appreciated and considered the fact that, as held by thisCourt in the case of Athul Rao v. State of Karnataka (2018) 14 SCC298 at the behest of a person who is not complainant seeking directionof further investigation is not maintainable.B

3.3 It is further submitted by the learned Senior Advocate appearingon behalf of the appellant that even as already held by this Court in thecase of Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel(2017) 4 SCC 177, the complainant does not have any right to file anapplication under Section 173(8) CrPC once the charge-sheet is framed.CIt is submitted that in the present case the charge-sheet is already filedand the evidence of the complainant has been recorded and thereforethe learned Chief Judicial Magistrate was justified in rejecting theapplication for further investigation under Section 173(8) CrPC preferredby the private respondent herein. It is submitted that if the opportunityDwould have been given to the appellant by permitting the appellant to beimpleaded as a party respondent in the Special Criminal Application, theappellant could have pointed out the aforesaid aspects and submit thecase on merits.

3.4 It is submitted that, even otherwise, looking to the allegationsEin the writ petition before the High Court, as the private respondentherein has made allegations against the investigating agency that theinvestigation is not carried out by the investigating officer properly, theappellant being accused is a necessary and proper party and in hisabsence, effective adjudication of the subject-matter of the dispute maynot take place.F

3.5 Number of other submissions have been made by the learnedSenior Advocate appearing on behalf of the appellant on merits of theapplication submitted by the private respondent herein for furtherinvestigation under Section 173(8) CrPC. However, for the reasons statedhereinbelow, and as the main Special Criminal Application against theGorder passed by the learned Chief Judicial Magistrate rejecting anapplication submitted by the private respondent herein for furtherinvestigation under Section 173(8) CrPC is pending consideration by theHigh Court, we do not propose to go into the merits of the applicationsubmitted by the private respondent herein for further investigation underHSection 173(8) CrPC.

3.6 Shri Maninder Singh, learned Senior Advocate appearing onbehalf of the appellant has also heavily relied upon Rule 51 of the GujaratHigh Court Rules, 1993 in support of his submissions that as per Rule 51all parties to the proceedings from which the appeal or application arisesshall be made the parties to the appeal or application. It is submitted thattherefore also and as the appellant herein was a party to the CriminalCase No. 853 of 2001 in fact the private respondent herein ought tohave impleaded the appellant in the special criminal application.

4. The present appeal is vehemently opposed by the privaterespondent herein as well Shri Mayee, learned Advocate appearing forthe State of Gujarat.

4.1 It is vehemently submitted that in an application under Section173(8) CrPC for further investigation with respect to one another accusednamely Shri Bhaumik, the appellant has no locus as the appellant assuch is already charge-sheeted and the trial against him is going on. It issubmitted that in the Special Criminal Application the private respondentherein has challenged the order passed by the learned Chief JudicialMagistrate rejecting the application under Section 173(8) CrPC whichwas basically made with respect to one another accused Shri Bhaumikas he was not charge-sheeted, the appellant herein cannot be said to bea necessary and/or proper party, It is submitted that even the appellantalso cannot be said to be a affected party even if the Special CriminalApplication is allowed and the application for further investigation underSection 173(8) CrPC against Shri Bhaumik is allowed.

4.2 It is further submitted that being a proposed accused evenShri Bhaumik has no locus and/or say at this stage for further investigationunder Section 173(8) CrPC.

In support of the above, reliance is placed upon the decision ofthis Court in Dinubhai Baghabhai Solanki v. State of Gujarat (2014)4 SCC 626; Narender G. Goel v. State of Maharashtra (2009) 6 SCC65 and Union of India v. W. N. Chadha 1993 Supp (4) SCC 260. It issubmitted that therefore when the proposed accused has no locus and/or say at this stage, the appellant, who as such is already charge-sheeted,and the trial against him is proceeded further, and against him no relief issought while submitting the application under Section 173(8) CrPC shallnot have any locus or say. It is submitted that therefore the High Courthas rightly refused to implead the appellant as a party respondent in thepetition filed by the private respondent herein.

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A5. Shri Mayee, learned Advocate appearing on behalf of the Stateof Gujarat has also opposed the present appeal as well as the applicationsubmitted by the appellant herein before the High Court and vehementlysubmitted that the appellant being one of the co-accused who is alreadycharge-sheeted and against whom the trial has proceeded further hasno locus and/or say in the petition filed by the private respondent hereinBas, even otherwise, the appellant cannot be said to even the affectedparty as while submitting the application under Section 173(8) CrPC norelief is sought against the appellant and the relief is sought for oneanother co-accused namely Shri Bhaumik, who is yet not charge-sheeted.

6. Heard learned counsel appearing for the respective parties atClength.

6. Heard learned counsel appearing for the respective parties atClength.

6.1 At the outset, it is required to be noted that the presentproceedings arise out of the application submitted by the privaterespondent herein seeking further investigation under Section 173(8) CrPCagainst one Mr. Bhaumik who is yet not charge-sheeted. Learned ChiefDJudicial Magistrate dismissed the said application against which the privaterespondent herein has approached the High Court by way SpecialCriminal Application. In the said petition, the appellant herein- one of theco-accused who is already charge-sheeted and against whom the trial isin progress and though in an application under Section 173(8) CrPC noErelief is sought against him, submitted an application to implead him asrespondent in the said Special Criminal Application and the said applicationhas been dismissed by the High Court by the impugned Judgment andOrder. Therefore, the short question which is posed for consideration ofthis Court is whether in the facts and circumstances of the case, theappellant-one of the co-accused against whom the charge-sheet is alreadyFfiled and against whom the trial is in progress, is required to be heardand/or has any locus in the proceedings under Section 173(8) CrPC –further investigation qua one another accused namely Shri Bhaumikagainst whom no charge-sheet has been filed till date?

7. Having heard learned counsel appearing on behalf of theGrespective parties and the private respondent herein, we are of the opinionthat as such no error has been committed by the High Court dismissingthe application submitted by the appellant herein to implead him in theSpecial Criminal Application filed by the private respondent hereinchallenging the order passed by the learned Chief Judicial MagistrateHrejecting his application for further investigation under Section 173(8)

CrPC with respect to one another accused namely Shri Bhaumik againstwhom no charge-sheet has been filed till date. Therefore, it is not at allappreciable how the appellant against whom no relief is sought for furtherinvestigation has any locus and/or any say in the application for furtherinvestigation under Section 173(8) CrPC. How he can be said to be anecessary and a proper party. It is required to be noted that, as such,even the proposed accused Shri Bhaumik shall not have any say at thisstage in an application under Section 173(8) CrPC for further investigation,as observed by this Court in the case of W.N. Chadha (supra); NarenderG. Goel (supra) and Dinubhai Baghabhai Solanki (supra). In the caseof Dinubhai Baghabhai Solanki (supra) after considering one anotherdecision of this Court in the case of Sri Bhagwan Samardha v. Stateof A.P. (1999) 5 SCC 740, it is observed and held that there is nothing inSection 173(8) CrPC to suggest that the court is obliged to hear theaccused before any direction for further investigation is made. In SriBhagwan Samardha (supra), this Court in paragraph 11 held as under:

“11. In such a situation the power of the court to direct thepolice to conduct further investigation cannot have any inhibition.There is nothing in Section 173(8) to suggest that the court isobliged to hear the accused before any such direction is made.Casting of any such obligation on the court would only result inencumbering the court with the burden of searching for all thepotential accused to be afforded with the opportunity of beingheard. As the law does not require it, we would not burden theMagistrate with such an obligation.”

Therefore, when the proposed accused against whom the furtherinvestigation is sought, namely Shri Bhaumik is not required to be heardat this stage, there is no question of hearing the appellant-one of theco-accused against whom the charge-sheet is already filed and the trialagainst whom is in progress and no relief of further investigation is soughtagainst him. Therefore, the High Court is absolutely justified in rejectingthe application submitted by the appellant to implead him as a partyrespondent in the Special Criminal Application.

8. Now, so far as the reliance placed upon Rule 51 of the GujaratHigh Court Rules by the learned Senior Advocate appearing on behalfof the appellant is concerned, we are of the opinion that in the facts andcircumstances of the case, Rule 51 shall not have any application forfurther investigation under Section 173(8) CrPC. Proceedings arising A

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Aout of an application under Section 173(8) CrPC cannot be equated withthe appeal or application against the order passed in criminal case asstated in Rule 51. Therefore Rule 51 of the Gujarat High Court Ruleshas no application at all.

9. In view of the above and for the reasons stated hereinabove,Bthere is no substance in the present appeal and the same deserves to bedismissed and is accordingly dismissed.

Devika Gujral

Appeal dismissed.

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