M.R.SHAH,J. - (1.) 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 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 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 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 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 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. ;