TMI Blog2020 (3) TMI 1377X X X X Extracts X X X X X X X X Extracts X X X X ..... osed Accused Shri Bhaumik shall not have any say at this stage in an application Under Section 173(8) Code of Criminal Procedure for further investigation. 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. Proceedings arising out of an application Under Section 173(8) Code of Criminal Procedure cannot be equated with the appeal or application against the order passed in criminal case as stated in Rule 51 - Rule 51 of the Gujarat High Court Rules has no application at all. There is no substance in the present appeal and the same deserves to be dismissed - Appeal dismissed. - Criminal Appeal No. 353 of 2020 - - - Dated:- 2-3-2020 - Ashok Bhushan And M.R. Shah, JJ. JUDGMENT M.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) Code of Criminal Procedure 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) Code of Criminal Procedure. 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 permitti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) Code of Criminal Procedure. 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) Code of Criminal Procedure 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 Section 173(8) Code of Criminal Procedure. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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) Code of Criminal Procedure 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) Code of Criminal Procedure against one Mr. Bhaumik who is yet not charge-sheeted. Learned Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanki (supra) after considering one another decision of this Court in the case of Sri Bhagwan Samardha v. State of A.P. (1999) 5 SCC 740, it is observed and held that there is nothing in Section 173(8) Code of Criminal Procedure 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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