Abhinav Mishra|Kirit P. Mehta School of Law| 6th June 2020
Satishkumar Nyalchand Shah v. State of Gujarat & Ors
Introduction
The Court deals with the issue of locus standi of the co-accused in the proceedings under section 173(8) of the CrPC against another accused against whom no charge-sheet is filed. The bench Comprises of Ashok Bhushan, M.R. Shah.
Facts
- There was an earthquake on 26/01/2001 in which several buildings collapsed including a building Sikhar apartment, 98 persons died due to the collapse.
- The private respondent herein-the victim(PRV) lodged an FIR against the appellant and others.
- The police Inspector filed a charge sheet against the appellant and others on 2/05/2001 However, three accused persons, and namely, Yagnesh Vyas, Sanjay Shah, and Ronak Shah were not charge-sheeted. The matter was brought in front of this court by way of criminal appeal No. 1426 of 2017. During the court hearing, it appears that there was progress in the investigation and Charger-sheet was filed against Yagnesh Vyas and Sanjay Shah who then arrested.
- In the criminal appeal, No 1426 of 2017 the court observed that if the PRV has any objection against dropping one another accused he can carry out proceedings in an appropriate court against one Shri M.N Bhaumik for not prosecuting him.
- The PRV filed an application before the Chief Judicial magistrate, under Sections 173(8) and 156(3) of the CrPC for further investigation against Shri Bhaumki. However, the magistrate dismissed the application claiming he has no jurisdiction to order further investigation u/s 173(8) CrPC.
- Aggrieved and dissatisfied the PRV filed a special criminal application No. 8704 of 2018 before Gujrat HC. The appellant here one of the accused who has already been charge-sheeted, submitted to be joined as party respondent No.4 in the said special criminal application. The HC has dismissed the said application. The appellant appealed to SC.
Rules and Laws applied
Sections 304, 418, 420 and 114 of IPC
Section 3(2)(c)&(d), Section 7(1)(i)(ii)2 and Section 42 of the Gujarat Ownership of Flats 1973.
Section 173(8) and 156(3) of CrPC, 1973.
Holding
The bench dismissed the appeal upholding the view taken by the HC. The observed that there is nothing in Section 173(8) of the CrPC that says that the court is obliged to hear the accused before any such direction is made.
Brief Analysis
The main issue raised here was that whether the appellant, one of the accused, against whom a charge sheet has been filed and proceedings are in order has any right to be heard or has any standing in the proceedings under section 173(8) CrPC further investigation. The Bench, in particular, referred to following observations made in Sri Bhagwan Sawardha Sreepada Venkata Vishwandadha Maharaj Vs State of Andhra Pradesh & Ors “There is nothing in Section 173 (8) to suggest that the Court is obliged to hear the accused before any such direction is made. The 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.”
Conclusion
The SC reiterated in this case that the Magistrate is not obliged to hear the accused before any direction of further investigation is made under 173(8) of the CrPC. The court further opined that even Shri Bhaumik shall not have any say at this stage in an application under Section 173(8) for further Investigation.
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