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CR.MA/9864/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9864 of 2010
In
SPECIAL
CRIMINAL APPLICATION No. 1539 of 2010
=========================================================
BABUBHAI
JAMNADAS PATEL - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
JB PARDIWALA with MR PARTHIV B SHAH
for
Applicant(s) : 1,
MR HL JANI Ld. APP for Respondent(s) : 1,
MR
YN OZA & MR BB NAIK SENIOR COUNSELS with MS ROMA I FIDELIS for
Respondents:
2-3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 27/09/2010
ORAL
ORDER
1. The
applicant, who is booked in a Criminal Case, has filed this
application to join him as a party respondent in Special Criminal
Application No. 1539/2010 filed by the original complainant, which is
pending for final hearing.
2. It
is the say of the applicant that the applicant is arraigned as one of
the accused in the present FIR and hence, the outcome of the said
petition i.e. Special Criminal Application No. 1539/2010 would have
direct bearing on the result of criminal proceedings filed against
the applicant. Hence, the present applicant is required to be joined
as party respondent in the said petition. It is further
the say of the applicant that against the interim orders dated
5.12.2008 and 23.1.2009 passed by this court in Special Criminal
Application No. 1855/2008, SLPs were filed being Criminal Appeal No.
1678 and 1679 of 2009. After the orders were passed in SLPs, the
Supreme Court in another proceedings viz. Special Leave to Appeal No.
6927-6932 of 2009 was pleased to direct the High Court to hear and
decide all the Special Criminal Applications pending before this
Court, including Special Criminal Application Nos. 2176 of 2009, 1811
of 2009, 1855 of 2009, 2259 of 2008 and in pursuance of the said
order, this Court was pleased to hear the matters and decided all the
above referred Special Criminal Applications by order dated 13.4.2010
and was pleased to transfer the investigation as the investigation
was not carried out on certain aspects. It is further the say of the
applicant that by passing the said order, all the Special Criminal
Application were disposed of. It is the say of the applicant that
once the final order is passed, all the interim orders passed by this
Court merges in the final order dated 13.4.2010. Therefore, it is not
fair on the part of the opponents no. 2 and 3 to place unnecessary
reliance and weightage on the interim orders passed in Special
Criminal Application No. 1855/2008. It is further the say of the
applicant that one Criminal Misc. Application No. 822/2010 was filed
for joining as party in Special Criminal Application No. 2259 of 2008
by one of the accused and one another Criminal Misc. Application No.
1240/2010 was also filed for joining party in Special Criminal
Application No. 1811 of 2009,
wherein, it was ordered that aforesaid Criminal Misc. Applications be
heard with above referred Special Criminal Applications. In view of
the above facts and circumstances, the applicant is also required to
be heard and permitted to be joined as party respondent no. 2 in the
said Special Criminal Application NO. 1539/2010.
3. Heard
Mr JB Pardiwala learned Counsel for Mr Parthiv B Shah learned
advocate for the applicant. Mr. Pardiwala has vehemently argued that
the said Special Criminal Application is not tenable in eye of law.
Mr Pardiwala has further contended that in this matter, investigation
was carried out by the investigating agency and C-Summary report is
filed before the learned Magistrate. He has read the judgment of this
Court dated 13.4.2010 passed in Special Criminal Application No. 1855
of 2008 with Special Criminal Application Nos. 2259/2008, 1911/2009,
2176/2009 and 2239/2009 and contended that the observation made by
the learned Single Judge of this Court in the said judgment is
required to be considered in the context of the original prayer made
by the respondents. He has also contended that judicial review is not
for C-Summary report. He has vehemently argued that after completion
of investigation, when C-Summary report is filed, then, no cause has
arisen for the complainant to file the said petition. He has also
contended that the said order is already challenged by the original
accused before the Hon’ble Supreme Court and SLP is pending. He has
also read C-Summary report filed by the Investigating
Agency and argued that the police has considered the case of
respondent original complainant as a case of civil nature.
Therefore, the remedy is available to the original complainant to
appear before the lower Court and to oppose the report of C-Summary.
Mr. Pardiwala has relied upon the decisions in the case of (1)
Divine Retreat Centre vs. State of Kerala and Ors., reported in
2008(2) SCC Cri. Page 9,
(2) D.
Venkatasubramaniam & Ors. vs. M.K. Mohan Krishnamachari &
Anr., reported in (2009) 10 SCC 488,
and argued that prayer for investigation through CBI cannot be
considered. Mr. Pardiwala has also raised a question that how
amendment can be granted for CBI investigation. Mr. Pardiwala has
also contended that when the learned Single Judge has already refused
to handover the investigation to CBI, then, the said application
cannot be entertained. Mr. Pardiwala has also read the reply and
argued that the presence of the applicant is required in Special
Criminal Application No. 1539/2010 and, therefore, this application
requires to be allowed and the applicant may be joined as party
respondent in Special Criminal Application No. 1539/2010. Learned
advocate Mr JB Pardiwala has also relied upon the decision in the
case of Union of India &
Ors. vs. Sushil Kumar Modi & Ors., reported in (1998)8 SCC p. 661
and argued about the powers of the Hight Court and submitted that
the present application requires to be allowed. Mr Pardiwala has also
contended that in Criminal Misc. Application No. 7394/2010, this
Court has also considered that issue and has raised the question that
so far as jurisdiction regarding C-Summary report is concerned, the
same is only with the learned Magistrate and first of all the
respondent has to go before the learned Magistrate and after so
approaching and on passing of the order by learned Magistrate, if
respondent is aggrieved, then respondent ori. Complainant can
challenge the same. Therefore, first of all, he has to obtain some
orders in connection with C-Summary report filed by the Investigating
Agency and, thereafter the issue of transfer of investigation can
arise.
4. As
against this, Mr YN Oza learned Senior Counsel for Ms. Roma I.
Fidelis appearing for respondents nos. 2 and 3, has contended that
this application cannot be considered because this is a question
between the Court and the original complainant and present applicant
has no locus standi to make any request to join him as party
respondent in the said Special Criminal Application. Mr Oza has
further contended that the decisions relied upon by the applicant are
not applicable to the facts of the present case. Mr Oza has read the
order of learned Single Judge of this court and also relied upon the
unreported decision of this Court rendered in Criminal Misc.
Application No. 8210 of 2005 and argued that in the said order, the
learned Single Judge has observed in connection with the question
with regard to the issue of C-Summary and the accused has no right to
say anything. Mr Oza has also drawn my attention to the decision of
this Court in the case of
Panatar Arvindbhai
Ratilal vs. State of Gujarat & Ors., reported in 1991(1) GLR p.
451 and argued that
the prayer of the applicant is required to be rejected. Mr. Oza has
also contended that so far as the issue of locus standi is concerned,
he has relied upon the decision in the case of Central
Bureau of Investigation and Anr., vs. Rajesh Gandhi & Anr.,
reported in (1996) 11 SCC 253 and
in the case of
Union of India and anr. vs. WN Chadha, reported in 1993 Supp (4) SCC
260 and submitted that
the present applicant has no locus standi and, therefore, this
application filed by the applicant requires to be dismissed.
5. I
have considered the submissions made by learned counsel appearing for
the parties and perused the papers. It is true that in this matter,
C-Summary report is already filed by the Investigating Agency in
connection of the original complaint filed by the original
complainant -respondent. It is required to be considered that the
applicant, who is an accused of the FIR has no locus standi at this
stage to question the manner in which the evidence is to be collected
by the Investigating Agency. However, it is open for the applicant
original accused to challenge the admissibility and reliability of
the evidence only at the stage of trial in case the investigation
ends up in filing the final report under sec. 173 of CrPC indicating
that the offence appears to have been committed. I have also
considered the submissions made by Mr Pardiwala learned
Senior Counsel appearing for the applicant in this application. It
also appears from the contentions raised in Special Criminal
Application that the right of the original accused cannot be
considered that it is prejudiced. So, first of all, from the perusal
of the papers produced before this Court, I am of the opinion that
looking to the original prayer made in Special Criminal Application,
the present applicant has no locus standi to file this application to
join him as a party respondent in the said Special Criminal
Application and hence, this application requires to be dismissed.
8. In
the result, this application is dismissed.
(Z.K.
SAIYED, J)
mandora/
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