UMESH MOHANLAL GOHILversusTHE STATE OF MAHARASHTRA

                                                   930-WP-2974-2024.DOC




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION
            CRIMINAL WRIT PETITION NO.2974 OF 2024


Umesh Mohanlal Gohil                                  …Petitioner
      Versus
The State of Maharashtra                              …Respondent


Mr. Rajendra Sorankar i/b. Mr. Ketan Dabke, for the Petitioner.
Mr. S. V. Walve, APP, for the Respondent-State.


                      CORAM:       MADHAV J. JAMDAR, J.
                      DATED :      23rd SEPTEMBER 2026
PC:-


1.       Heard Mr. Sorankar, learned Counsel appearing for the

Petitioner and Mr. Walve, learned APP appearing for the

Respondent-State.



2.       By this Writ Petition filed under Article 226 of the

Constitution of India, the challenge is to the legality and validity of

the impugned order dated 30th November 2023 passed by the

learned Metropolitan Magistrate, 26th Court, Borivali, Mumbai.



3.       It is the submission of learned Counsel appearing for the

Petitioner that a Closure Report has been filed in MECR No.489 of




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2018 registered with Borivali Police Station, Mumbai, under

Sections 420, 120B read with 34 of the Indian Penal Code, 1860

(“IPC”) against accused Nos.4 and 5 and the chargesheet has been

filed against three accused i.e. accused Nos. 1 to 3. He submits that

the Petitioner has filed Protest Petition to said Closure Report. He

submits that by the impugned order, notice has been issued to the

said proposed accused, which is not permissible. To substantiate

the said contention, he relied on the decision of the Supreme Court

in the case of Satishkumar Nyalchand Shah vs. State of Gujarat &

Ors.1.



4.       On the other hand, Mr. Walve, learned APP supported the

impugned order. He submits that there is no prejudice to the

Petitioner.



5.       Perusal of the record shows that the Petitioner is the original

Informant in MECR No.489 of 2018 registered with Borivali Police

Station, Mumbai, under Sections 420, 120B read with 34 of the

IPC against accused Hemal Chitaliya, Nimesh Chitaliya, Jay

Chitaliya, Atil Mehta and Ritaben Mehta for defrauding and


1        (2020) 4 SCC 22




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cheating the Petitioner for total amount of Rs.95,00,000/- (Rupees

Ninety Five Lakh only) in connivance with each other. Although

the chargesheet is filed against Hemal Chitaliya, Nimesh Chitaliya

and Jay Chitaliya, the prosecution filed a Closure Report against

Atil Mehta and Ritaben Mehta. In that Closure Report, Protest

Petition has been filed by the present Petitioner opposing closure of

the proceedings against accused Nos.4 and 5. On said Protest

Petition, the learned Metropolitan Magistrate passed the impugned

order dated 30th November 2023, which is as under:



            “It appears that after filing chargesheet, summons
            yet to be served on accused. Hence call the say of
            accused, IO & Ld. APP.”


6.       The Supreme Court in almost identical facts in Satishkumar

Nyalchand Shah (supra) has inter alia held that the proposed

accused against whom further investigation is sought, it is not

required to be heard at that stage. The relevant paragraphs are

paragraphs 10 and 11, which read as under:



            “10. Having heard the learned counsel appearing
            on behalf of the respective parties and the private
            respondent herein, we are of the opinion that as
            such no error has been committed by the High
            Court dismissing the application submitted by the




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         appellant herein to implead him in the special
         criminal application filed by the private
         respondent 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 other
         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, as observed by this Court
         in W.N. Chadha [Union of India v. W.N. Chadha,
         1993 Supp (4) SCC 260 : 1993 SCC (Cri)
         1171] ; Narender G. Goel[Narender G.
         Goel v. State of Maharashtra, (2009) 6 SCC 65 :
         (2009) 2 SCC (Cri) 933] and Dinubhai
         Baghabhai        Solanki [Dinubhai       Boghabhai
         Solanki v. State of Gujarat, (2014) 4 SCC 626 :
         (2014) 2 SCC (Cri) 384] . In Dinubhai Baghabhai
         Solanki [Dinubhai Boghabhai Solanki v. State of
         Gujarat, (2014) 4 SCC 626 : (2014) 2 SCC (Cri)
         384] after considering another decision of this
         Court in Sri Bhagwan Samardha Sreepada
         Vallabha Venkata Vishwanandha Maharaj v. State
         of A.P. [Sri Bhagwan Samardha Sreepada
         Vallabha Venkata Vishwanandha Maharaj v. State
         of A.P., (1999) 5 SCC 740 : 1999 SCC (Cri) 1047]
         , it is observed and held that there is nothing in
         Section 173(8) CrPC to suggest that the court is
         obliged to hear the accused before any direction
         for further investigation is made. In Sri Bhagwan
         Samardha [Sri Bhagwan Samardha Sreepada
         Vallabha Venkata Vishwanandha Maharaj v. State
         of A.P., (1999) 5 SCC 740 : 1999 SCC (Cri)



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         1047] ,this Court in para 11 held as under : (Sri
         Bhagwan      Samardha      case [Sri   Bhagwan
         Samardha      Sreepada      Vallabha    Venkata
         Vishwanandha Maharaj v. State of A.P., (1999) 5
         SCC 740 : 1999 SCC (Cri) 1047] , SCC p. 743)

             “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 the
             law does not require it, we would not
             burden the Magistrate with such an
             obligation.”

         11. 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 charge-sheet 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.”




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                 7.       Thus, in view of the law laid down by the Supreme Court in

                 the case of Satishkumar Nyalchand Shah (supra), the impugned

                 order dated 30th November 2023 passed by the learned

                 Metropolitan Magistrate, 26th Court, Borivali, Mumbai, is quashed

                 and set aside.



                 8.        The concerned learned Judicial Magistrate First Class is

                 requested to dispose of the said Protest Petition expeditiously in

                 accordance with law.



                 9.       Accordingly, the Writ Petition is disposed of in above terms.




                                                              [MADHAV J. JAMDAR, J.]

 SONALI
 MILIND
 PATIL
Digitally signed by
SONALI MILIND
PATIL
Date: 2026.09.23
18:54:34 +0530




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