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CR.MA/9892/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9892 of 2010
In
SPECIAL
CRIMINAL APPLICATION No. 1540 of 2010
=========================================================
KETAN
BABUBHAI PATEL - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
SB VAKIL SENIOR COUNSEL with MR VIJAY H PATEL
for
Applicant(s) : 1,
MR HL JANI Ld. APP for Respondent(s) : 1,
MR
YN OZA & MR BB NAIK SENIOR COUNSEL 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. 1540/2010 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. 1540/2010 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 the applicant has preferred quashing
petition before this Court, which was rejected by this Court and
against the said order, the applicant has preferred SLP before the
Supreme Court being Special Leave to Appeal No. 6927-6932 of 2009.
The present applicant has suppressed the said facts intentionally and
has not produced the order dated 11.9.2009 passed by the Supreme
Court, wherein, the interim relief was granted to the effect that the
applicant shall not be arrested without the leave of the Supreme
Court. It is further the say of the applicant that the Supreme Court
in the 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 has
heard 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. 1540/2010.
3. Heard
Ms SB Vakil learned Senior Counsel for Mr Vijay Patel learned
advocate for the applicant. Mr. Vakil has vehemently argued that the
said Special Criminal Application is not tenable in eye of law. Mr
Vakil 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. Vakil 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 the prayer for investigation through CBI cannot be
considered. Mr. Vakil has also raised a question that how amendment
can be granted for CBI investigation. Mr. Vakil 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. Vakil has also read the reply page 79 [para-5] and
argued that the presence of the applicant is required in Special
Criminal Application No. 1540/2010 and, therefore, this application
requires to be allowed and the applicant may be joined as party
respondent in Special Criminal Application No. 1540/2010.
4. As
against this, Mr YN Oza learned Senior Counsel
for Ms. Roma I. Fidelis learned advocate 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 decisions in the cases 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. In
reply to this, Mr Vakil 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 after so approaching and on
passing of the order by Ld. Magistrate, if respondent is aggrieved,
then respondent ori. Complainant can challenge the same. Therefore,
first of all, he has to obtain some order in connection of C-Summary
report filed by the Investigating Agency and, thereafter, the issue
of transfer of investigation can arise.
6. 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 with 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 an offence appears to have been committed. I
have also considered the submissions made by Mr Vakil 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 said to
have been 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.
7. In
the result, this application is dismissed.
(Z.K.
SAIYED, J)
mandora/
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