Rule 51 shall not have any application for further investigation under section 173(8) of CrPC

Lisa Coutinho | Pravin Gandhi College of Law | 30th March 2020

Satishkumar Nyalchand Shah v. State of Gujarat & Ors. Criminal Appeal No. 353 of 2020

Facts of the case:

A building collapsed due to an earthquake, causing 98 deaths. The private respondent (victim) in the case lodged an FIR against the appellants for offences under Section 304, 418, 420, 114 of IPC and Sections 3(2)(c) &(d), 7(1)(i)(ii)2 and 42 of Gujarat Ownership of flats and for contravention of GDCR, Building Bye-laws. After a number of litigations all accused except three were charge-sheeted. Further the respondent filed an application before the learned Chief Judicial Magistrate under sections 173(8) and 156(3) Crpc for further investigation against one accused who was not charge-sheeted. This application was dismissed on the grounds that after the charge-sheet is filed, the Magistrate has no jurisdiction to order for further investigation. Aggrieved, the respondent approached the Gujarat High Court. The High Court dismissed the application permitting the appellant to be joined as respondent 4 in the application filed by the private respondent seeking further investigation. Dissatisfied, the appellant approached the Honourable Supreme Court.

Issue raised:

Whether the appellant, one of the co-accused who is already charge-sheeted have any locus standi and/or say in the petition filed by the private respondent under section 173(8) of crpc against respondent against whom no charge sheet has been filed.

Appellants contention:

The learned Senior Advocate on behalf of the Appellant submitted that the High Court has committed an error in refusing to implead the appellant co-accused as a party in the writ petition. Relying on previous case laws it has been submitted that the complainant does not have the right to file an application under section 173(8) crpc once the charge-sheet is framed.

Respondents contention:

Relying on Rule 51 of the Gujarat High Court Rules, the learned Senior Advocate for the respondent submitted that the private respondent herein ought to have impleaded the appellant in the special criminal application. It was further submitted that being a proposed accused, there is no locus standi at this stage or further investigation under section 173(8) crpc. Therefore, the High Court has rightly refused to implead the applicant as a part respondent in the petition filed by the private respondent.

Judgement:

The Supreme Court took the view that the High Court has not committed any error by rejecting the appellant’s application to implead him in the application for further investigation under section 173(8) crpc filed by the private respondent. It stated that when the proposed accused against whom the further investigation is sought is not required to be heard, 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.

It held that Rule 51 of the Gujarat High Court Rules shall not have any application for further investigation under section 173(8) of 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.

Finding no substance in the appeal, the Apex Court dismissed it.