SATISHKUMAR NYALCHAND SHAHversusSTATE OF GUJARAT & ORS.

1106                      [2020]REPORTS
                SUPREME COURT   3 S.C.R. 1106                [2020] 3 S.C.R.


 A                   SATISHKUMAR NYALCHAND SHAH
                                         v.
                          STATE OF GUJARAT & ORS.
                         (Criminal Appeal No. 353 of 2020)
 B                               MARCH 02, 2020
                [ASHOK BHUSHAN AND M. R. SHAH, JJ.]
              Code of Criminal Procedure, 1973: s.173(8) – Further
       investigation – Application submitted by private respondent seeking
       further investigation under s.173(8) against a person who is yet
 C
       not charge-sheeted – Magistrate dismissed the said application –
       Private respondent approached the High Court by way Special
       Criminal Application – Appellant one of the co-accused who was
       already charge-sheeted and against whom the trial was in progress
       and though in an application under s.173(8) no relief was sought
 D     against him, submitted an application to implead him as respondent
       in the said Special Criminal Application – Application dismissed by
       the High Court – On appeal, held: No error was committed by
       High Court in dismissing the application submitted by the appellant
       to implead him in the Special Criminal Application filed by the private
       respondent challenging the order passed by the Magistrate rejecting
 E
       his application for further investigation under s.173(8) with respect
       to one another accused against whom no charge-sheet was filed till
       date – Therefore, when the proposed accused against whom the
       further investigation was sought was not required to be heard at
       this stage, there was no question of hearing the appellant-one of
 F     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 was sought against him – Proceedings arising out of
       application under s.173(8) cannot be equated with the appeal or
       application against the order passed in criminal case as stated in
       r.51 of the Gujarat High Court Rules – Therefore, r.51 has no
 G
       application at all.
             Dismissing the appeal, the Court
           HELD : It is not at all appreciable how the appellant against
       whom no relief is sought for further investigation has any locus
 H
                                        1106
            SATISHKUMAR NYALCHAND SHAH v.                             1107
                 STATE OF GUJARAT & ORS.

and/or any say in the application for further investigation under     A
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. Therefore, when the proposed accused against
                                                                      B
whom the further investigation is sought 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 charge-sheet is already
filed and the trial against whom is in progress and no relief of
further investigation is sought against him. The High Court was
absolutely justified in rejecting the application submitted by the    C
appellant to implead him as a party respondent in the Special
Criminal Application. 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.
Proceedings arising out of an application under Section 173(8)
                                                                      D
CrPC cannot be equated with the appeal or application against
the order passed in criminal case as stated in Rule 51.
[Paras 7, 8][1113-A-B, F-H; 1114-A]
      Union of India v. W. N. Chadha (1993) 4 Supp SCC 260 :
      [1992] 3 Suppl. SCR 594 ; Dinubhai Baghabhai Solanki v.
      State of Gujarat (2014) 4 SCC 626 : [2014] 3 SCR 932;           E
      Narender G. Goel v. State of Maharashtra (2009) 6 SCC 65 :
      [2009] 8 SCR 1004 ; Sri Bhagwan Samardha v. State of A.P.
      (1999) 5 SCC 740 : [1999] 3 SCR 870 – relied on.
      Athul Rao v. State of Karnataka (2018) 14 SCC 298 ;
      Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel        F
      (2017) 4 SCC 177 : [2017] 4 SCR 105 – referred to
                      Case Law Reference
(2018) 14 SCC 298              referred to            Para 3.2
[2017] 4 SCR 105               referred to            Para 3.3        G
[1992] 3 Suppl. SCR 594        relied on              Para 4.2
[2014] 3 SCR 932               relied on              Para 7
[2009] 8 SCR 1004              relied on              Para 7
[1999] 3 SCR 870               relied on              Para 7          H
1108            SUPREME COURT REPORTS                          [2020] 3 S.C.R.


 A           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
       No. 353 of 2020.
             From the Judgment and Order dated 24.12.2018 of the High Court
       of Gujarat at Ahmedabad in Criminal Misc. Application No. 1 of 2018 in
       Special Criminal Application No. 8704 of 2018.
 B            Maninder Singh, Sr. Adv., D. N. Ray, Parthiv Shah, Lokesh Kumar
       Choudhary, Dillip Kumar Nayak, Ms. Disha Ray, Mrs. Sumita Ray, Advs.
       for the Appellant.
             Aniruddha P. Mayee, A. Rajarajan, Advs. for the Respondents.

 C           The Judgment of the Court was delivered by
             M. R. SHAH, J.
              1. 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
 D     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 the appellant who is one of the accused and is already charge-
 E
       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
 F     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
 G     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,
 H     namely, Yagnesh Vyas, Sanjay Shah and Ronak Shah were not charge-
            SATISHKUMAR NYALCHAND SHAH v.                                       1109
          STATE OF GUJARAT & ORS. [M. R. SHAH, J.]

sheeted. The matter was carried up to this Court by way of Criminal             A
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 No. 1426 of 2017 vide order dated 16.07.2018,
                                                                                B
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-        C
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-
                                                                                D
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.            E
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
impugned Judgment and Order, Judge of the High Court has dismissed              F
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.                      G
       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-co-accused as a party in the writ petition
filed by the victim.                                                            H
1110             SUPREME COURT REPORTS                           [2020] 3 S.C.R.


 A            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.
 B
               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.
 C     It is 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. It is submitted that if the opportunity
 D     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
 E     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.
 F
              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
 G     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
       High Court, we do not propose to go into the merits of the application
       submitted by the private respondent herein for further investigation under
 H     Section 173(8) CrPC.
            SATISHKUMAR NYALCHAND SHAH v.                                      1111
          STATE OF GUJARAT & ORS. [M. R. SHAH, J.]

       3.6 Shri Maninder Singh, learned Senior Advocate appearing on           A
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
                                                                               B
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.
                                                                               C
       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           D
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 be a affected party even if the Special Criminal        E
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.                                                     F
       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/           G
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.                               H
1112             SUPREME COURT REPORTS                           [2020] 3 S.C.R.


 A            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 trial has proceeded further has
       no locus and/or say in the petition filed by the private respondent herein
 B
       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 namely Shri Bhaumik, who is yet not charge-sheeted.
              6. Heard learned counsel appearing for the respective parties at
 C     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
 D     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
 E     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
 F     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
 G     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
 H     rejecting his application for further investigation under Section 173(8)
            SATISHKUMAR NYALCHAND SHAH v.                                      1113
          STATE OF GUJARAT & ORS. [M. R. SHAH, J.]

CrPC with respect to one another accused namely Shri Bhaumik against           A
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,
                                                                               B
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            C
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     D
      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           E
      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        F
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.                                G
       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           H
1114              SUPREME COURT REPORTS                      [2020] 3 S.C.R.


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


       Devika Gujral                                           Appeal dismissed.


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