There is nothing in section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made.: SC

The Supreme Court observed that a contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void

In the case of SATISHKUMAR NYALCHAND SHAH VS. STATE OF GUJARAT,[1]the Supreme Court through the bench of justice  Ashok Bhushan and justice M. R. Shah held that a court is not obliged to hear the accused before any direction for further investigation is made under Section 173(8) of the Code of Criminal Procedure[2].

Brief facts:

In an earthquake on 26.01.2001, number of buildings collapsed, including the building named Shikhar Apartment situated at Village Vejalpur, Ahmedabad in which 98 persons died. The private respondent herein-the victim lodged the FIR, 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. The charge-sheet was filed against the appellant and others on 02.05.2001.

After some rounds of litigation, some of the offenders charge-sheeted and some were not, namely, Yagnesh Vyas, Sanjay Shah and Ronak Shah. The matter reached to the Supreme Court by way of criminal appeal. During the hearing, investigation process was in progress and charge- sheet was filed against the accused Yagnesh Vyas and Sanjay Shah who were also arrested. In order dated 16.07.2018, this Court observed that if the Victim, who is private respondent has any objection against dropping of one another accused, he may file objection and can file a protest petition in the Trial Court. The victim can carry out proceeding in appropriate court against Shri M. N. Bhaumik for not prosecuting him.

Accordingly application was made before the learned Chief Judicial Magistrate, Ahmedabad (Rural) under Sections 173(8) and 156(3) CrPC for further investigation against Shri Bhaumik, which was dismissedon 29.08.2018, on the ground that charge sheet was filed and the Magistrate has no jurisdiction to order for further investigation under Section 173(8) CrPC. The private respondent has preferred the Special Criminal Application before the High Court of Gujarat, where he submitted an application permitting him to be joined as party respondent No. 4 in the said Special Criminal Application. Judge of the High Court has dismissed the said application.

Argument advanced:

Arguments on behalf of appellant:

  • It was submitted by the appellant that the High Court has committed grave error in refusing the appellant co-accused as a party in the writ petition filed by the victim. The High Court has not properly appreciated and considered the fact, as it was held by the Supreme Court in the case of Athul Rao v. State of Karnataka[3] at the behest of a person who is not complainant seeking direction of further investigation is not maintainable. Further reference was made to the case of Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel[4], the complainant does not have any right to file an application under Section 173(8) CrPC once the charge-sheet is framed. Thus in the present case the charge-sheet is already filed and the evidence of the complainant has been recorded and therefore learned chief judicial magistrate was justified in rejecting the application for further investigation under section 173 (8) of CrPC.
  • It is alleged that allegations against the investigating agency that the investigation is not carried out by the investigating officer properly and the appellant being an accused, is necessary party and in his absence, effective adjudication of the subject matter of dispute may not take place.
  • The appellant 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. Thus the private respondent herein ought to have impleaded the appellant in the special criminal application.

Arguments by respondent:

  • It was argued by the respondent that the appellant has no locus as the appellant is already charge-sheeted and the trial against him is going on. It is submitted that in the Special Criminal Application the private respondent has challenged the order passed of the Chief Judicial Magistrate rejecting the application under Section 173(8) CrPC which was made with respect to Shri Bhaumik as he was not charge-sheeted, the appellant cannot be said to be a necessary and/or proper party. Thus further investigation under Section 173(8) CrPC against Shri Bhaumik is allowed.
  • 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. To support above argument, the reliance was placed upon Dinubhai Baghabhai Solanki v. State of Gujarat[5]; Narender G. Goel v. State of Maharashtra[6] and Union of India v. W. N. Chadha[7]. 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. Thus high court is right in refusing to implead the appellant as a party respondent in the petitioner.

Decision of the court:

The Apex Court, through Justice Bhushan and Justice Shah, opined that no error has been committed by the High Court in dismissing the application submitted by the appellant to implead accused in the Special Criminal Application filed by the private respondent 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.

In case of Dinubhai Baghabhai Solanki, after considering one another decision of this Court in of Sri BhagwanSamardha v. State of A.P[8], it is 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. The court held that when the proposed accused against whom investigation is sought, namely Shri Bhaumik is not required to be heard at this stage. 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.

For Rule 51 of the Gujarat High Court Rules, the court held that 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 has no application and the Supreme Court dismissed the petition.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[1]https://www.livelaw.in/pdf_upload/pdf_upload-370828.pdf

[2]https://www.livelaw.in/top-stories/need-not-hear-accused-for-further-investigation-plea-153387

[3] (2018) 14 SCC 298

[4](2017) 4 SCC 177

[5] (2014) 4 SCC 626

[6] (2009) 6 SCC 65

[7] 1993 Supp (4) SCC 260

[8](1999) 5 SCC 740

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