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There is nothing in Section 173(8) Cr.P.C to suggest that the court is obliged to hear the accused b

Satishkumar Nyalchand Shah Vs State of Gujarat & Ors, CRIMINAL APPEAL NO. 353 OF 2020.

“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 Section173(8) Cr.P.C. 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) Cr.P.C for further investigation.”

The judgment was pronounced by justice ASHOK BHUSHAN and M. R. SHAH on March 2, 2020.

Facts

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. Being aggrieved by the order of HC appellant has preferred the present appeal.

Contention

It is submitted by appellant 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. 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. 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 vehemently submitted by respondent 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.

The court held, 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 againstwhom 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.

There is no question of hearing the appellant-one of the co-accused against whom the charge- sheet 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.

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. we are of the opinion that in the facts and circumstances of the case, Rule 51 of the Gujarat High Court Rules shall not have any application for further investigation under Section 173(8) CrPC.

No error has been committed by the High Court dismissing the application submitted by theappellant herein to implead him in the Special Criminal Application filed by theprivate respondent herein challenging the order passed by the learned ChiefJudicial Magistrate rejecting his application for further investigation under Section173(8) CrPC with respect to one another accused namely Shri Bhaumik againstwhom no charge-sheet has been filed till date

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.

– Aarthy K

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