IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION NO. 13950 of 2012 In SPECIAL CRIMINAL APPLICATION NO. 2546 of 2012 ================================================================ [email protected] DIPU GORDHANBHAI PATEL & 4....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance:
MR AD SHAH, ADVOCATE for the Applicant(s) No. 1 - 5 MR SV RAJU, SR. COUNSEL, FOR MS A R ACHARYA, ADVOCATE for the Respondent(s) No. 2 MR RC KODEKAR APP for the Respondent(s) No. 1 ================================================================ CORAM:
HONOURABLE MR.JUSTICE K.M.THAKER Date : 09 /01/2013 CAV ORDER The applicants, who are the original accused according to the FIR being CR No. I 44 of 2012, have taken out present application and have prayed, inter alia, that:
12(i) that the Hon'ble Court may be pleased to permit the petitioners accused to be impleaded as necessary parties to this petition and may be permitted to be joined as a parties respondents;
2. The applicants claim that they may be impleaded as necessary party to the proceedings related to the above mentioned petition i.e. Special Criminal Application No.2546 of 2012. The said petition has been filed by the original complainant. In the said petition, the original complainant has prayed, inter alia, that :-
9(A)(i) to transfer the investigation of FIR being C.R.No.I-44/2012 registered with Navsari Town Police Station for the offences punishable u/s. 302, 306, 201, 498(A) and 114 of IPC and Sec.3 and 7 of the Dowry Prohibition Act, to any other independent agency like Central Bureau of Investigation, to be carried out by any high rank officer not below the rank of D.S.P., in the interest of justice;
(ii) to take appropriate action against respondent no.3 erring police officer, in the interest of justice;
(B) Your Lordships be pleased to direct the respondents to forthwith hand over the entire investigation to any other independent agency like Central Bureau of Investigation, pending the admission hearing and final disposal of this petition, in the interest of justice;
3. Thus, in a writ petition wherein the original complainant has prayed for transfer of investigation to C.B.I. or to an officer of higher rank not below the rank of D.S.P., the original accused persons in the FIR want to join the said proceedings and want opportunity of hearing on the premise that they are necessary party in the said petition.
4. The application is opposed by the respondent State in the main petition and also by the original complainant i.e. the petitioner of main petition. The State and the original complainant petitioner have opposed the application mainly on the ground that the accused persons do not have any locus standi to prefer such application and they do not have right to claim hearing at the stage of investigation.
5. Mr. A.D.Shah, learned counsel, has appeared for the applicants accused persons and Mr. Raju, learned Senior Counsel, has appeared for the original complainant petitioners and Mr. Kodekar, learned APP, has appeared for the respondent State.
6. Mr. Shah, learned counsel for the applicants original accused persons, submitted that the petitioners original complainants have not stated several relevant facts and related aspects while claiming transfer of investigation. He has also claimed that the accused persons are concerned with and interested in the proceedings of the said petition and they, as accused, are necessary party to the proceedings of said petition so that they can get opportunity of hearing, more particularly when the complainant claims investigation by specialized agency or when the complainants demand transfer of investigation to such specialized agency from another agency. Mr. Shah also submitted that there are several factual aspects and material which deserve to be taken into account while considering the complainant s request for transfer of investigation proceedings which may satisfy the Court that the complainants demand is unjustified. Learned counsel for the applicants would contend that for long span of almost 6 months, the complainants never alleged any irregularity or defect in the investigation and it is only in view of the observations by the Court while deciding bail application under Section 439 of the Code that the complainants have taken out present proceedings. The learned counsel for the accused persons would also contend that the said order dated 9.8.2012 passed in said bail application is challenged before the Hon ble Apex Court and the Special Leave Petition is pending before the Hon ble Apex Court. So as to support his submission and the relief prayed for by the accused persons in present application, Mr. Shah relied on the decision in the case between Samaj Parivartan Samudaya & Ors. v. State of Karnataka & Ors. [(2012) 3 SCC (Cri.) 365].
7. Mr. Kodekar, learned APP, has vehemently opposed the application and submitted that the accused persons do not have any locus-standi to prefer such application and to claim that they should be impleaded as necessary party and to be joined as party respondent because investigation proceedings are purely and solely in exclusive realm of police/investigating agency and the accused can not have any right or say in the matters related to investigation process and the accused can not claim right of hearing as necessary party. He also submitted that whether the investigation needs to be transferred to any other agency or not, is a matter between the investigating agency and the Court and the accused cannot claim any right of hearing at this stage. Learned APP, Mr. Kodekar, submitted that the application does not deserve to be entertained and may be rejected.
8. Mr. Raju, learned Senior Counsel for the original petitioner complainants, also opposed the application on the ground that the applicants have no locus to prefer application seeking right of hearing at the time of hearing of the petition and he submitted that the Court is not obliged to hear the accused before making directions asking the investigating agency for further investigation and/or while passing direction to transfer the investigation. He also submitted that, actually, during the entire stage of investigation, the accused has no locus-standi to prefer application for being party respondent in the petition and/or to claim that they are necessary party and/or to claim right of hearing. Mr. Raju also submitted that it is the obligation of State / investigating agency to place entire relevant material before the Court for considering the request for transfer of investigation or for directing transfer of / further investigation. So as to support his submissions, learned Senior Counsel for the petitioners complainant relied on the decisions in the case between Narender G. Goel v. State of Maharashtra & Anr. [2009 6 SCC 65], Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors. [(1976) 3 SCC 736], Union of India & Anr. v. W.N.Chadha [1993 Supp (4) SCC 260], Hasanbhai Valibhai Qureshi v. State of Gujarat & Ors. [(2004) 5 SCC 347], Sri Bhagwan Samardha Sreepada Vallabha Vankata Vishwanandha Maharaj v. State of A.P. & Ors. [(1999) 5 SCC 740], Reeta Nag v. State of West Bengal & Ors. [(2009) 9 SCC 129] and Randhir Singh Rana v. State (Delhi Administration) [(1997) 1 SCC 361].
9. I have heard the learned counsel for the applicants accused persons and learned APP as well as learned Senior Counsel for the original petitioners complainants and have also examined the material on record.
10. At the outset, it is necessary to mention that in this application, at this stage, what the Court is considering necessary and relevant is whether the accused is necessary party in the petition seeking transfer of investigation and has right to claim that he should be joined as party respondent in such petition.
11. It emerges from the record that, the original petitioners complainants lodged FIR. Offence punishable under Sections 302, 306, 201, 498(A) and 114 of Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act is alleged against accused person. The FIR came to be lodged on 28.3.2012. Thereafter, the investigating agency commenced the investigation proceedings. During the proceedings of investigation, original accused Nos.4 and 5 preferred application seeking regular bail under Section 439 of the Code of Criminal Procedure which was registered as Criminal Application No.10038 of 2012.
11.1 It appears that it was during the proceedings of the said application under Section 439 of the Code that this Court examined certain material including investigation record and on such examination the Court found, prima-facie, that the investigation process was being conducted in slipshod manner and there was almost abandonment of fair and impartial investigation. While considering the said application under Section 439 (which was preferred by original accused Nos.4 and 5), the Court observed (as quoted in memo of petition i.e. Special Criminal Application No.2546 of 2012) in the order dated 9.8.2012 that:-
Ordinarily, this Court, exercising powers under Section 439 of the Code, would not have entered into the arena of nature of investigation carried out for the offences punishable under Sections 302, 306, 201, 498A and 114 of the Indian Penal Code read with Sections 3 and 7 of the Dowry Prohibition Act, but the manner and method in which the Investigating Agency has tried to destroy the evidence, collected fresh material including drawing of reconstruction panchanama, in a case where the deceased received 14 body injuries and the allegation is madeof hanging on a curtain rod of a few millimeters of diameter in a bathroom by tying a bathtowel on her neck; needs a thorough, fair and impartial investigation by an independent agency like the Central Bureau of Investigation.
9 Considering the rival submissions made by the learned counsels for the parties, on perusal of the record of the case and the order dated 28.6.2012 impugned in this application, the case before this Court, prima facie, reveals abandonment of fair and impartial investigation by the Investigating Agency. Ordinarily, the High Court, considering a case of grant or otherwise of bail, would not comment, in detail, about the manner and method of investigation, but for the following circumstances:
[a] Nature of allegations;
[b] Nature of type of injuries;
[c] Demonstration panchanama when the first bail application was filed before the trial court and, again, second demonstration panchanama by a woman constable;
[d] Seeking opinion of the socalled experts on the line of investigation by submitting four queries;
[e] The Doctors, who opined, were not experts, but had only qualification of MBBS;
[f] Conduct of the applicants prior to alleged incident and subsequent one;
[g] The Sessions Court also noticed the method of investigation and lacuna therein;
[h] The Investigating Officer did not register the FIR until the complainant has given the complaint on 28.3.2012, even though the inquest panchanama and postmortem note were received on 26.3.2012.
10 Submissions of learned counsel for the applicants about filing of the FIR by taking advice of the expert and/or lawyer; no ill-treatment, mentally or physically, by the applicants, mother-in-law and sister-in-law; allegation of illicit relationship of the husband with another lady to which the applicants had no knowledge or control; specific mention about certain events relating back to six to seven years; filing of charge-sheet after thorough investigation based on scientific examination of record and nature of offence under Section 306 IPC, would be without any merit and the present application deserves to be rejected for the following reasons:
[i] As per the post-mortem note, the deceased had sustained 14 injuries, out of which, two injuries appear to have been inflicted after death of the deceased and the remaining 12 injuries were sustained before death of the deceased;
[ii] Injury Nos. 4 to 7 and 9 to 13 are not in consonance with the physical condition of the deceased. The report dated 26.4.2012 shows that the aforesaid injuries are possible with hard and blunt substance. There are deep wounds and marks of beatings on the neck and right hand; external injuries and deep wounds above the fingers of right leg; external injuries on right side of neck of the deceased, injuries over entire neck upto ears; which are not possible in normal circumstances.
[iii] Even though the deceased had sustained 12 injuries, it is difficult to believe that she had not raised any shouts and nobody at the home could hear it. At the time of the incident, all the accused persons and two servants were present.
[iv] The applicants, accused Nos. 4 and 5, have taken active participation in the commission of crime in question.
[v] As per the charge-sheet, the applicants, accused Nos. 4 and 5, have removed broken pieces of glasses lying in the bathroom the place of incident and destroyed the evidence.
[vi] The accused, in collusion with each other, have played active role in commission of offence and destroyed evidence;
[vii] It is difficult to believe a case of suicide; no blood stains on the floor; no marks of saliva on the towel; no bending of curtain rod;
11 In view of what is stated hereinabove, prima-facie, as recorded by the Sessions Court, the investigation is already tampered with. If the applicants are released on bail at this stage, it is possible that they will tamper with the evidence/witnesses and influence the Investigating Officer.
12 It is trite law laid down by the Apex Court in State vs. Capt. Jagjit Singh [AIR 1962 SC 253] and reiterated in Jayendra Saraswathi Swamigal vs. State of Tamil Nadu [2005 Supreme Court Cases (Cri) 481] that the considerations weigh with the Court in granting bail in non-bailable offences are:
[i] the nature and seriousness of the offence;
[ii] the character of the evidence;
[iii] the circumstances which are peculiar to the accused;
[iv] a reasonable possibility of the presence of the accused not being secured at the trial;
[v] reasonable apprehension of witnesses being tampered with;
[vi] the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.
Keeping in mind the principles laid down by the Apex Court in the above-referred decisions and considering the gravity of the crime and involvement of the applicants in a serious offence punishable initially under Section 302 of the Indian Penal Code, it is not just and proper to exercise power under Section 439 of the Code of Criminal Procedure in favour of the applicants. This application is rejected.
13 This Court will be failing in its duty if it does not record that the filing of charge-sheet by the Investigating Officer is based on deliberate and considered mischief to shield the accused, for which, the complainant is free to take suitable action in accordance with law.
14 The aforesaid observations, prima-facie in nature, are made by this Court on the basis of perusal of the police papers and prima-facie observations and findings recorded by the trial court in the order dated 28.6.2012 in Criminal Misc. Application No.295 of 2012.
11.2 It appears that after the aforesaid order in bail application came to be passed, the original complainants preferred Special Criminal Application No.2546 of 2012 wherein they have prayed for transfer of investigation to CBI or to an officer not below the rank of DSP.
11.3 During the pendency of the said petition, the original accused persons have taken out present application on the premise that they are necessary party in the said petition and that therefore, they may be impleaded as party respondents being necessary party in the petition - and they may be heard.
12. In present case, the petitioners, i.e. the original complainants, have approached the Court with a request that the investigation in connection with the FIR registered as CR No. I-44 of 2012 may be assigned to other independent agency.
In the said petition, the accused (i.e. present applicants) persons want to join the proceedings of the petition as party respondents on the ground that they are necessary party. Thus, the issue is whether the accused persons can be considered necessary party to the proceedings of such petition which seeks transfer of investigation and whether they should be impleaded as party respondents.
In this context, it is necessary to note that the Hon'ble Apex Court has held that, it is well settled that the accused has no right to be heard at the stage of investigation and that there is nothing in Section 173 (8) to suggest that the Court is obliged to hear the accused before any direction is made. If such obligation is imposed on the Court, it would result in encumbering the Court with the burden of searching for all potential accused to be afforded with the opportunity of being heard [2009 (6) SCC 65]. The Hon'ble Apex Court has also held that the investigating officer is not deciding any matter except collecting the material for ascertaining whether a prima-facie case is made out or not and a full inquiry in case of filing a report under Section 172(2) is followed by trial before the Court or tribunal pursuant to the report and that therefore, it cannot be said that at that stage, rule of audi alteram partem superimposes an obligation to hear the accused, more so, when the statute does not expressly recognize such right.
The Hon'ble Apex Court has explained the situation by observing that, the question is not whether audi alteram partem is implicit but whether the occasion for its attraction exists at all .
13. From the submission by learned counsel for the applicants, it has emerged that the applicants want to oppose the petitioner's request for transfer of investigation on diverse grounds, including ground of delay. Whereas the petitioners original complainants and the respondent State (as the investigation agency) have opposed the request and they have also questioned applicants' locus to join the proceedings of the petition as well as the applicants' claim that they are necessary party in the hearing of the petition.
14. So far as the contention by the learned advocate for the accused i.e. present applicants that the main petition being Special Criminal Application No.2546 of 2012 is taken out after delay and only because of the observation by the Hon'ble Court (in bail application), is concerned, it is true that the said main petition by the original complainants has been preferred after the Court made the above quoted observations in the said bail application. However, the said fact alone cannot justify and support this application and/or present applicants' contention and claim that they are necessary party and that they should be joined as party respondent.
14.1 The said objection on ground of delay touches the merits of the said petition and that therefore, is not relevant at this stage when the only limited issue for consideration is present applicants' locus and justiciability of their request.
14.2 Moreover, even if the said aspect is presumed to be true, it cannot help the applicants original accused persons in contending that they are necessary party so far as the proceedings related to the petition preferred by the complainants seeking transfer of investigation is concerned. The accused persons also cannot derive any support or justification from the said aspect and the said aspect will not lend support to the claim that the accused are necessary party and they should be impleaded as party respondent.
15. Before adverting to the rival submissions, the below mentioned observations by the Hon'ble Apex Court would render useful reference and guidance in considering the request by the accused/applicants.
15.1 In the case between Central Bureau of Investigation & Anr. v. Rajesh Gandhi & Anr. [(1996) 11 SCC 253], the Hon'ble Apex Court considered the issue as to whether the decision to investigate or the decision as to the agency which should investigate, would attract principles of natural justice and in that context, the Hon'ble Apex Court observed, in paragraph nos.8 and 9 that:-
8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision.
. . . . .
9. We fail to see any requirement of law under which the reasons for further investigation by the C.B.I. are required to be recorded in the notifications of the kind in question. The reasons can be shown independently.
15.2 Learned advocate for the petitioners has placed reliance on the decision in the case between Samaj Parivartan Samudaya & Ors. v. State of Karnataka & Ors. [(2012) 3 SCC (Cri.) 365] wherein the Hon'ble Apex Court has observed, in para-50, that:-
50. There is no provision in the CrPC where an investigating agency must provide a hearing to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. The CBI, as already noticed, may even conduct pre- registration inquiry for which notice is not contemplated under the provisions of the Code, the Police Manual or even as per the precedents laid down by this Court. It is only in those cases where the Court directs initiation of investigation by a specialized agency or transfer investigation to such agency from another agency that the Court may, in its discretion, grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the Court. This question is of no relevance to the present case as we have already heard the interveners.
The said decision does not render assistance to the applicants in claiming and supporting the claim that they are necessary party in the petition (filed by original complainants) which seeks transfer of investigation, and in claiming that they should be impleaded as necessary party in the petition and joined as party respondents.
15.3 In this context, reference can also be made to the observations by the Hon ble Apex Court in the decisions in the case between :-
(i) The Hon'ble Apex Court has also observed in the decision in the case between Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors. [(1976) 3 SCC 736] that:-
4. .....In fact it is well settled in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.
(ii) The Hon'ble Apex Court has observed in the decision in the case between Sri Bhagwan Samardha Sreepada Vallabha Vankata Vishwanandha Maharaj v. State of A.P. & Ors. [(1999) 5 SCC 740], more particularly in para 10 and 11 thus:-
10. Power of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Admn.) (AIR 1979 SC 1791). The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to make further investigation.
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 law does not require it, we would not burden the magistrate with such an obligation.
(iii) The Hon'ble Apex Court observed in the decision in the case between Narender G. Goel v. State of Maharashtra & Anr. [2009 6 SCC 65] wherein the Hon'ble Supreme Court has observed in para-11 that:-
11. It is well settled that the accused has no right to be heard at the stage of investigation. The prosecution will however have to prove its case at the trial when the accused will have full opportunity to rebut/question the validity and authenticity of the prosecution case. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v.
State of A.P. This Court observed:(SCC p.743, para-11) "11 ....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."
(iv) In the case between Union of India & Anr. v.
W.N.Chadha [1993 Supp (4) SCC 260], the Hon'ble Apex Court observed that:-
90. Under the scheme of Chapter XII of the CrPC, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer.
92. . . . .
.Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions.
98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.
(v) In the case between Central Bureau of Investigation & Anr. v. Rajesh Gandhi & Anr. [(1996) 11 SCC 253], the Hon'ble Apex Court observed that:-
8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision....
16. Thus, the accused person ordinarily does not have any say, or right of hearing, in the matter about the manner and method of investigation or to claim as to how and by whom the investigation should be carried on or whether a particular agency should investigate the case or not and/or to claim that the investigation should be carried out only by particular agency.
16.1 When such right is not available to the accused, then, it would follow, as a corollary, that accused person/s cannot be said to be or can not be considered, and cannot be joined as, necessary party in the matter related to investigation process and the accused person cannot claim, as a matter of right, that they should be joined as party respondent and ordinarily accused person also cannot claim right of being heard, in the matters related to investigation process - more so when the investigation is in progress.
16.2 In present case, the applicants have claimed that they may be joined as party respondents in the petition filed by the claimant and they may be impleaded as necessary party in the said proceedings. However, the State/investigation agency is party respondent in the said petition and they are defending the said proceedings. Furthermore, even in the decision relied on by the applicants the Hon'ble Apex Court has observed that, the Court may, in its discretion, grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the Court. The Hon'ble Apex Court has thus explained and clarified that the issue related to hearing the suspect or affected party while considering the issue about transferring investigation is primarily in judicial discretion.
16.3 In present application, the Court is not required to decide, at this stage, as to whether any order for transfer of investigation and/or further investigation should be passed or not. The said issue is subject matter of the main petition, i.e. Special Criminal Application No.2546 of 2012, and will be considered and decided upon hearing the said petition.
16.4 In present application, the limited issue for consideration is as to whether the accused is necessary party to the proceedings of said petition or not and whether the accused persons can claim right of being impleaded as necessary party in the petition and to be joined in the proceedings as party respondent or not and whether they can claim right of hearing so as to oppose the relief prayed for in the said petition being Special Criminal Application No.2546 of 2012 or not.
17. What emerges from the above referred decisions by the Hon'ble Apex Court is that the Investigation Agency is sole and exclusive authority in the matters related to investigation and consequently investigation agency would be necessary party in the said proceedings and the accused is not and cannot be considered necessary party in the petition.
17.1 The entire investigation process is exclusively in the realm of investigation agency and that therefore, ordinarily, investigation agency would be necessary and proper party to such proceedings, and none else.
17.2 Ordinarily, the exclusive right, and obligation also, to place entire relevant material before the Court for consideration - while the issues related to investigation process (including the issue/request about transferring investigation) are under consideration, is of the investigation agency.
17.3 As held by the Hon'ble Apex Court, the accused has no right of hearing at the stage of investigation as regards the aspects related to or arising from the process of investigation, including the issue as to the agency who would conduct the investigation or the manner of conducting the investigation. The accused does not come in picture and he has no right to claim that it is necessary party at the stage of investigation and that it should be impleaded as necessary party and should be joined as party respondent and/or to claim right of being heard.
17.4 It is only the investigation agency who can explain by placing relevant and sufficient material on record, as to how the process and progress of investigation is proceeding. The accused can not explain the said aspects and he would not be able to render any assistance in determining as to whether the investigation is being carried out in unbiased, impartial, fair and satisfactory manner and in accordance with prescribed procedure or not. The relevant material also would be available only with the investigation agency. Assuming that for any reason such request (either by the complainant or by any other person) is to be opposed, then also, that can be done by investigation agency since it is only the said agency which would possess relevant material and details. For the said and such other reasons, the accused person/s is not and cannot be considered necessary party in petition seeking transfer of investigation.
17.5 Therefore, the accused cannot claim that they may be impleaded in such proceedings as necessary party and/or that they should be joined in the proceedings as party respondent. Consequently, the accused also cannot claim, at the stage of investigation and/or in the matters related to investigation i.e. manner and method of investigation, right of being heard. At the stage of investigation, the principle of audi alteram partem is not applicable, to and the said principle cannot be invoked, for claiming right of hearing at the stage of, investigation process.
18. The facts of the case and the discussion in present order, would show that whether investigation should be transferred or not and whether investigation should be carried out by a particular agency or not are the issues between the Court and the investigating agency and the accused is not and/or can not be considered necessary party in such proceedings.
18.1 Having regard to the facts of the case, this Court is not inclined to accept the application and the Court is not inclined to consider the applicants necessary party in the said proceedings or to grant applicants' request for joining the proceedings as party respondent in the petition preferred by the complainant which, as aforesaid, is being defended by the investigation agency, i.e. petition being Special Criminal Application No.2546 of 2012.
The application deserves to be disallowed.
Thus, the application is not accepted and is hereby rejected.
(K.M.THAKER, J.) kdc Page 17