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

Aditi Reddy | Symbiosis Law School, Hyderabad | 19th May 2020

Satishkumar Nyalchand Shah vs State of Gujarat & Ors CRIMINAL APPEAL NO. 353 OF 2020

Facts of the case:

• In an earthquake dated 26.01.2001, number of buildings collapsed which includes a building named Shikhar Apartment in Ahmedabad and due to 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 Police Inspector, Satellite Police Station filed the charge-sheet against the appellant and others on 02.05.2001 for the aforesaid offences and the appellant and the other accused came to be charge sheeted and three accused were not charge sheeted. 
• Later on the other two accused who were not charge sheeted were also arrested. So the private respondent herein the victim has disposed off the petition regarding the accused not charge sheeted. 
• This Court also observed that the private respondent herein-the Victim can carry out proceedings in an appropriate Court against one Shri M. N. Bhaumik for not prosecuting him under sections 173(8) and 156(3).
• The Chief Judicial Magistrate 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.
• The private respondent was dissatisfied with the judgement by the Chief judicial magistrate and has preferred to appeal a special criminal application in 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. Hence the High Court has dismissed this petition. 

Held:

• The Supreme Court has opined that there was no such 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.
• In case of Dinubhai Baghabhai Solanki, after considering one another decision of this Court in of Sri BhagwanSamardha v. State of A.P 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.
• The court has also made it clear that the Rule 51 of the Gujarat High Court Rules, that it shall not have any application for further investigation under Section 173(8) CrPC and the 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.