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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 353 OF 2020

Satishkumar Nyalchand Shah .. Appellant

Versus

State of Gujarat & Ors. .. Respondents

J U D G M E N T

M.R. Shah, J.

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

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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-co-

accused 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

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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 co-

accused 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

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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.

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(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 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.

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

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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.