Saturday, 7 March 2020

Supreme Court: It is not necessary to hear accused before directing further investigation by police

 It is required to be noted that, as such, even the proposed accused Shri Bhaumik shall not have any say at this stage in an application under Section 173(8) CrPC for further investigation, as observed by this Court in the case of W.N. Chadha
(supra); Narender G. Goel (supra) and Dinubhai Baghabhai Solanki (supra). In the case of Dinubhai Baghabhai Solanki (supra) after considering one another decision of this Court in the case of Sri Bhagwan Samardha v. State of A.P.

(1999) 5 SCC 740, it is observed and held that there is nothing in Section 173(8)
CrPC to suggest that the court is obliged to hear the accused before any direction
for further investigation is made. In Sri Bhagwan Samardha (supra), this Court in
paragraph 11 held as under:
“11. In such a situation the power of the court to direct
the police to conduct further investigation cannot have any
inhibition. There is nothing in Section 173(8) to suggest that the
court is obliged to hear the accused before any such direction is
made. Casting of any such obligation on the court would only
result in encumbering the court with the burden of searching for
all the potential accused to be afforded with the opportunity of
being heard. As the law does not require it, we would not
burden the Magistrate with such an obligation.”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 353 OF 2020

Satishkumar Nyalchand Shah  Vs  State of Gujarat 


M.R. Shah, J.
Dated:March 2, 2020.
Citation: (2020) 4 SCC 22

Feeling aggrieved and dissatisfied with the impugned judgment and order
dated 24.12.2018 passed by the High Court of Gujarat at Ahmedabad in Criminal
Miscellaneous Application No. 1 of 2018 in Special Criminal Application No. 8704
of 2018, by which the High Court has dismissed the said application preferred by
the appellant herein permitting him to be joined as respondent No. 4 in the said
Special Criminal Application No. 8704 of 2018, which was filed by the private
respondent herein seeking further investigation against other persons (other than
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the appellant who is one of the accused and is already charge-sheeted), 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 Village Vejalpur,
Ahmedabad. That due to the collapse of the said Shikhar apartment, 98 persons
died. That the private respondent herein-the victim lodged the FIR, being CR No.
I-58 of 2001 with the Satellite Police Station against the appellant and others for
the offences punishable under Sections 304, 418, 420 and 114 of IPC and Section
3(2)(c)&(d), Section 7(1)(i)(ii)2 and Section 42 of the Gujarat Ownership of Flats
and for contravention of GDCR, Building Bye-laws. That the Police Inspector,
Satellite Police Station filed the charge-sheet against the appellant and others on
02.05.2001 for the aforesaid offences. It appears that after a number of rounds of
litigations, the appellant and some of the other accused came to be charge-sheeted.
However, three accused persons, namely, Yagnesh Vyas, Sanjay Shah and Ronak
Shah were not charge-sheeted. The matter was carried up to this Court by way of
Criminal Appeal No. 1426 of 2017. It appears that during the hearing of the
aforesaid appeal by this Court, there was progress in the investigation and the
charge-sheet was filed against the accused Yagnesh Vyas and Sanjay Shah who
were also arrested. Therefore, while disposing of the aforesaid Criminal Appeal
3
No. 1426 of 2017 vide order dated 16.07.2018, this Court observed that if the
private respondent herein-the Victim has any objection against dropping of one
another accused, he may file objection and can file a protest petition in the Trial
Court. This Court also observed that the private respondent herein-the Victim can
also carry out proceedings in an appropriate Court against one Shri M. N. Bhaumik
for 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 further investigation against
Shri Bhaumik. That by order dated 29.08.2018, learned Chief Judicial Magistrate,
Ahmedabad (Rural) dismissed the said application on merits as well as on the
ground that after the charge-sheet is filed, the Magistrate has no jurisdiction to
order for further investigation under Section 173(8) CrPC.
2.1 Feeling aggrieved and dissatisfied with the order passed by the learned Chief
Judicial Magistrate dated 29.08.2018 passed in an application below Ex.275(C) in
Criminal Case No. 853 of 2001, the private respondent herein has preferred the
Special Criminal Application No. 8704 of 2018 before the High Court of Gujarat.
In the said Special Criminal Application, the appellant herein, one of the accused
who is already charge-sheeted, submitted an application permitting him to be
joined as party respondent No. 4 in the said Special Criminal Application. By the
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impugned Judgment and Order, Judge of the High Court has dismissed the said
application. Hence, the present appeal.
3. Shri Maninder Singh, learned Senior Advocate has appeared on behalf of the
appellant; the private respondent herein has appeared as a party-in-person and Mr.
Aniruddha P. Mayee, learned Advocate has appeared on behalf of the respondent-
State of Gujarat.
3.1 Shri Maninder Singh, learned Senior Advocate appearing on behalf of the
appellant has vehemently submitted that in the facts and circumstances of the case
the High Court has committed grave error in refusing to implead the appellant-coaccused
as a party in the writ petition filed by the victim.
3.2 It is further submitted by Shri Maninder Singh, learned Senior Advocate
appearing on behalf of the appellant that the High Court has not properly
appreciated and considered the fact that, as held by this Court in the case of Athul
Rao v. State of Karnataka (2018) 14 SCC 298 at the behest of a person who is not
complainant seeking direction of further investigation is not maintainable.
3.3 It is further submitted by the learned Senior Advocate appearing on behalf of
the appellant that even as already held by this Court in the case of Amrutbhai
Shambhubhai Patel v. Sumanbhai Kantibhai Patel (2017) 4 SCC 177, the
complainant does not have any right to file an application under Section 173(8)
CrPC once the charge-sheet is framed. It is submitted that in the present case the
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charge-sheet is already filed and the evidence of the complainant has been recorded
and therefore the learned Chief Judicial Magistrate was justified in rejecting the
application for further investigation under Section 173(8) CrPC preferred by the
private respondent herein. It is submitted that if the opportunity would have been
given to the appellant by permitting the appellant to be impleaded as a party
respondent in the Special Criminal Application, the appellant could have pointed
out the aforesaid aspects and submit the case on merits.
3.4 It is submitted that, even otherwise, looking to the allegations in the writ
petition before the High Court, as the private respondent herein has made
allegations against the investigating agency that the investigation is not carried out
by the investigating officer properly, the appellant being accused is a necessary and
proper party and in his absence, effective adjudication of the subject-matter of the
dispute may not take place.
3.5 Number of other submissions have been made by the learned Senior
Advocate appearing on behalf of the appellant on merits of the application
submitted by the private respondent herein for further investigation under Section
173(8) CrPC. However, for the reasons stated hereinbelow, and as the main
Special Criminal Application against the order passed by the learned Chief Judicial
Magistrate rejecting an application submitted by the private respondent herein for
further investigation under Section 173(8) CrPC is pending consideration by the
6
High Court, we do not propose to go into the merits of the application submitted by
the private respondent herein for further investigation under Section 173(8) CrPC.
3.6 Shri Maninder Singh, learned Senior Advocate appearing on behalf of the
appellant has also heavily relied upon Rule 51 of the Gujarat High Court Rules,
1993 in support of his submissions that as per Rule 51 all parties to the proceedings
from which the appeal or application arises shall be made the parties to the appeal
or application. It is submitted that therefore also and as the appellant herein was a
party to the Criminal Case No. 853 of 2001 in fact the private respondent herein
ought to have impleaded the appellant in the special criminal application.
4. The present appeal is vehemently opposed by the private respondent herein
as well Shri Mayee, learned Advocate appearing for the State of Gujarat.
4.1 It is vehemently submitted that in an application under Section 173(8) CrPC
for further investigation with respect to one another accused namely Shri Bhaumik,
the appellant has no locus as the appellant as such is already charge-sheeted and
the trial against him is going on. It is submitted that in the Special Criminal
Application the private respondent herein has challenged the order passed by the
learned Chief Judicial Magistrate rejecting the application under Section 173(8)
CrPC which was basically made with respect to one another accused Shri Bhaumik
as he was not charge-sheeted, the appellant herein cannot be said to be a necessary
and/or proper party, It is submitted that even the appellant also cannot be said to
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be a affected party even if the Special Criminal Application is allowed and the
application for further investigation under Section 173(8) CrPC against Shri
Bhaumik is allowed.
4.2 It is further submitted that being a proposed accused even Shri Bhaumik has
no locus and/or say at this stage for further investigation under Section 173(8)
CrPC.
In support of the above, reliance is placed upon the decision of this Court in
Dinubhai Baghabhai Solanki v. State of Gujarat (2014) 4 SCC 626; Narender
G. Goel v. State of Maharashtra (2009) 6 SCC 65 and Union of India v. W. N.
Chadha 1993 Supp (4) SCC 260. It is submitted 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 is sought while submitting the application under Section 173(8) CrPC shall
not have any locus or say. It is submitted that therefore the High Court has rightly
refused to implead the appellant as a party respondent in the petition filed by the
private respondent herein.
5. Shri Mayee, learned Advocate appearing on behalf of the State of Gujarat
has also opposed the present appeal as well as the application submitted by the
appellant herein before the High Court and vehemently submitted that the appellant
being one of the co-accused who is already charge-sheeted and against whom the
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trial has proceeded further has no locus and/or say in the petition filed by the
private respondent herein as, even otherwise, the appellant cannot be said to even
the affected party as while submitting the application under Section 173(8) CrPC
no relief is sought against the appellant and the relief is sought for one another coaccused
namely Shri Bhaumik, who is yet not charge-sheeted.
6. Heard learned counsel appearing for the respective parties at length.
6.1 At the outset, it is required to be noted that the present proceedings arise out
of the application submitted by the private respondent herein seeking further
investigation under Section 173(8) CrPC against one Mr. Bhaumik who is yet not
charge-sheeted. Learned Chief Judicial Magistrate dismissed the said application
against which the private respondent herein has approached the High Court by way
Special Criminal Application. In the said petition, the appellant herein- one of the
co-accused who is already charge-sheeted and against whom the trial is in progress
and though in an application under Section 173(8) CrPC no relief is sought against
him, submitted an application to implead him as respondent in the said Special
Criminal Application and the said application has been dismissed by the High
Court by the impugned Judgment and Order. Therefore, the short question which
is posed for consideration of this Court is whether in the facts and circumstances of
the case, the appellant-one of the co-accused against whom the charge-sheet is
already filed and against whom the trial is in progress, is required to be heard

and/or has any locus in the proceedings under Section 173(8) CrPC – further
investigation qua one another accused namely Shri Bhaumik against whom no
charge-sheet has been filed till date?
7. Having heard learned counsel appearing on behalf of the respective parties
and the private respondent herein, we are of the opinion that as such no error has
been committed by the High Court dismissing the application submitted by the
appellant herein to implead him in the Special Criminal Application filed by the
private respondent herein challenging the order passed by the learned Chief
Judicial Magistrate rejecting his application for further investigation under Section
173(8) CrPC with respect to one another accused namely Shri Bhaumik against
whom no charge-sheet has been filed till date. Therefore, it is not at all appreciable
how the appellant against whom no relief is sought for further investigation has
any locus and/or any say in the application for further investigation under Section
173(8) CrPC. How he can be said to be a necessary 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 this stage in an application under Section 173(8) CrPC for
further investigation, as observed by this Court in the case of W.N. Chadha
(supra); Narender G. Goel (supra) and Dinubhai Baghabhai Solanki (supra). In
the case of Dinubhai Baghabhai Solanki (supra) after considering one another
decision of this Court in the case of Sri Bhagwan Samardha v. State of A.P.

(1999) 5 SCC 740, it is observed and held that there is nothing in Section 173(8)
CrPC to suggest that the court is obliged to hear the accused before any direction
for further investigation is made. In Sri Bhagwan Samardha (supra), this Court in
paragraph 11 held as under:
“11. In such a situation the power of the court to direct
the police to conduct further investigation cannot have any
inhibition. There is nothing in Section 173(8) to suggest that the
court is obliged to hear the accused before any such direction is
made. Casting of any such obligation on the court would only
result in encumbering the court with the burden of searching for
all the potential accused to be afforded with the opportunity of
being heard. As the law does not require it, we would not
burden the Magistrate with such an obligation.”
Therefore, when the proposed accused against whom the further investigation is
sought, namely Shri Bhaumik is not required to be heard at this stage, there is no
question of hearing the appellant-one of the co-accused against whom the chargesheet
is already filed and the trial against whom is in progress and no relief of
further investigation is sought against him. Therefore, the High Court is absolutely
justified in rejecting the application submitted by the appellant to implead him as a
party respondent in the Special Criminal Application.
8. Now, so far as the reliance placed upon Rule 51 of the Gujarat High Court
Rules by the learned Senior Advocate appearing on behalf of the appellant is
concerned, we are of the opinion that in the facts and circumstances of the case,
Rule 51 shall not have any application for further investigation under Section

173(8) CrPC. Proceedings arising out of an application under Section 173(8)
CrPC cannot be equated with the appeal or application against the order passed in
criminal case as stated in Rule 51. Therefore Rule 51 of the Gujarat High Court
Rules has no application at all.
8. In view of the above and for the reasons stated hereinabove, there is no
substance in the present appeal and the same deserves to be dismissed and is
accordingly dismissed.
……..…………………..J.
(ASHOK BHUSHAN)
…………………………..J.
(M. R. SHAH)
New Delhi;
March 2, 2020.
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