Courts not obliged to hear accused while considering plea for further investigation(Section 173(8) of Cr.P.C): Supreme court. - Synopsis
Nilanjana Ganguly 3 Mar 2020

The Supreme Court affirmed that a court is not necessary to hear the accused before any direction for further investigation pursuant to section 173(8) of the Criminal Procedure Code is issued.

In this case, the High Court dismissed the application filed by the appellant seeking to join as a complainant in a Special Criminal Application seeking further investigation against other persons.

The question raised in the appeal before the Apex Court was whether the appellant, who is one of the co-accused against whom the charge sheet has already been filed and against whom the trial is under way, is eligible to be heard and/or has any position in the proceedings under Section 173(8) CrPC-  further investigation qua accused one another, namely Shri Bhaumik, against whom no charges have been filed to date?

Referring to the judgment of the High Court, the bench comprising Justice Ashok Bhushan and Justice MR Shah, referring to earlier decisions on this issue, noted that there is nothing in Section 173(8) of the CrPC to indicate that the court is required to hear the accused before any further investigation is directed. It said : “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 whom the chargesheet 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.”

In particular, the bench made reference to the following observations made in Sri Bhagwan Samardha v. A.P State. (1999) 5 SCC 740 :

“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.”

While the appeal was rejected, the bench noted further:

“We are of the opinion that as such no error has been committed by the High Court dismissing the application submitted by the appellant 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. Therefore, it is not at all appreciable how the appellant against whom no relief is sought for further investigation has any locus and/or any say in the application for further investigation under Section 173(8) CrPC. How he can be said to be a necessary and a proper party. It is required to be noted that, as such, even the proposed accused Shri Bhaumik shall not have any say at this stage in an application under Section 173(8) CrPC for further investigation.”


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