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 Page 1 Sonali 930-WP-2974-2024.DOC 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 Page 2 Sonali 930-WP-2974-2024.DOC 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 Page 3 Sonali 930-WP-2974-2024.DOC 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) Page 4 Sonali 930-WP-2974-2024.DOC 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.” Page 5 Sonali 930-WP-2974-2024.DOC 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.] Page 6 Sonali SONALI MILIND PATIL Digitally signed by SONALI MILIND PATIL Date: 2026.09.23 18:54:34 +0530