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 and how he can be said to be a necessary and a proper party.
CASE BRIEF: Satishkumar Nyalchand shah V/s State of Gujarat & Ors.
CASE NAME- Satishkumar Nyalchand shah V/s State of Gujarat & Ors.
CASE NO. - CRIMINAL APPEAL NO. 353 OF 2020
COURT - The Supreme Court of India
BENCH - Ashok Bhushan (J) , M. R. Shah (J)
CITATION -1993 Supp (4) SCC 260 , (1999) 5 SCC 740
RELEVANT STATUTES - CrPc , IPC
DECIDED ON - March 2, 2020
➢ BRIEF FACT AND PROCEDURAL HISTORY
1. In an earthquake on 26.01.2001, number of buildings collapsed, including the building named Shikhar Apartment situated at Village Vejalpur, Ahmedabad. Due to the collapse of the said Shikhar apartment, 98 persons died. The private respondent herein-the victim lodged the FIR, 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.
2. 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.
3. The 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 wasprogress in the investigation and the charge-sheet was filed against the accused Yagnesh Vyas and Sanjay Shah who were also arrested.
4. 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.
5. Feeling aggrieved and dissatisfied with the order passed by the learned Chief Judicial Magistrate the private respondent herein has preferred the Special Criminal Application No. 8704 of 2018 before the High Court of Gujarat. By the impugned Judgment and Order, Judge of the High Court has dismissed the said application.
6. Hence, the present appeal.
➢ ISSUE BEFORE THE COURT-
1. 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)?
RATIO OF THE COURT -
1. The Senior Advocate appearing on behalf of the appellant relied on Amrutbhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel, (2017) 4 SCC 177 the court held that the complainant does not have any right to file an application under Section 173(8)CrPC once the charge-sheet is framed. It was submitted that in the present case the 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.
2. The court relied on 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 to hold the proposed accused Shri Bhaumik shall not have any say at this stage in an application under Section 173(8) CrPC for further investigation.
3. The court also relied on Sri Bhagwan Samardha v. State of A.P.10 (1999) 5 SCC 740, where it is observed 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.
4. The court observed that 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 and how he can be said to be a necessary and a proper party.
5. 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 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 co-accused.
➢ DECISION HELD -
1. The court held that 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.