Madhya Pradesh High Court
Confederation Of All India Traders Thr. vs The State Of Madhya Pradesh on 20 December, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
WP-27516-2021
Confederation of All India Traders Vs. State of MP
Gwalior, Dated : 20-12-2021
Ms. Shilpi Jain, Counsel with Ms. Shradha Dubey, Counsel for
the petitioner.
Shri Sanjay Kumar Sharma, Counsel for the State.
This petition under Article 226 of the Constitution of India has
been filed seeking following relief:-
"I. This Hon'ble Court may kindly be please
to allow this petition.
II. To issue a writ, order or direction in the
nature of Mandamus thereby transferring the
investigation of the case FIR No.0288/2021 dated
13.11.2021, FIR under Section 8/20 of NDPS Act
registered at police station Gohad Chauraha, District
Bhind, Gwalior to an independent agency and most
suitably Narcotics Control Bureau (NCB), in the
interest of justice, fair pay and equity, and/or,
III.
IV Constitute a special investigation team
(SIT) for investigating the present case.
V.
VI. Allow/direct a court monitored probe in
the interest of justice.
VII. Pass such orders which this Hon'ble
Court may deem fit and proper in the interest of
justice in favour of the Petitioner."
2. It is submitted by the counsel for the petitioner that Amazon
which is a platform for online trading is involved in illegal activities.
Contrabands are being sold by using E-commerce Platform of
Amazon. Accordingly, FIR in Crime No.288/2021 has been
registered in Police Station Gohad Chauraha District Bhind.
According to which, it was found that 21.734 kg of Ganja worth
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THE HIGH COURT OF MADHYA PRADESH
WP-27516-2021
Confederation of All India Traders Vs. State of MP
Rs.2,10,000/- was being delivered through Amazon. It is submitted
that the said FIR is not the solitary instance of use of E-commerce
Platform of Amazon, but a similar case has also been registered in
Police Station Vishakhapatnam District Vishakhapatnam in Crime
No.216/2021 (slightly illegible, therefore, crime number may be
different). Without alleging against the Investigating Officer, it is
submitted that since an E-commerce Platform is involved in
supplying the contraband in different parts of the country, therefore,
the Investigating Officer may not have expertise in Cyber Law as
well as because of limited territorial jurisdiction, he may not be able
to conduct a detailed investigation into the activities of the Amazon,
therefore, the FIR in Crime No.288/2021 registered at Police Station
Gohad Chauraha District Bhind for offence under Section 8/20 of
NDPS Act be transferred to an independent agency, most suitably a
Narcotics Control Bureau or in the alternative the Court should
constitute a Special Investigation Team (SIT) for investigating the
matter.
3. During the course of arguments, it was pointed out by the
Court to the counsel for the petitioner that although the petitioner has
made lot of allegations against E-commerce Platform of Amazon, but
Amazon has not been impleaded as a party. Further, the petitioner has
not impleaded the persons who have been arrayed as an accused in
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THE HIGH COURT OF MADHYA PRADESH
WP-27516-2021
Confederation of All India Traders Vs. State of MP
Crime No.288/2021. In reply, it was submitted by Ms. Shilpi Jain that
if the Court directs for impleadment of the aforesaid Agency or
persons, then the petitioner is ready to implead them.
4. Per contra, the petition is vehemently opposed by the counsel
for the State. It is submitted that the petitioner is a complete stranger
to the allegations and, therefore, he has no locus standi to pray for
transfer of the investigation to Narcotics Control Bureau or to pray
for constitution of SIT by the Court.
5. Heard the learned counsel for the parties.
6. So far as the locus standi of the petitioner to file this petition is
concerned, it would be considered after considering the effect of non-
joinder of necessary party.
7. It is well established principle of law that a petition should not
be dismissed on the ground of non-joinder of necessary party unless
and until an opportunity is given to the petitioner to rectify the defect.
In the present case, this Court pointed out to the counsel for the
petitioner that lot of allegations are being made against E-commerce
Platform of Amazon, but Amazon has not been impleaded as a party.
Similarly, the persons who have been arrayed as an accused in FIR
bearing Crime No.288/2021 at Police Station Gohad Chauraha
District Bhind have also not been made a party, but instead of giving
a second thought as to whether E-commerce Platform of Amazon and
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THE HIGH COURT OF MADHYA PRADESH
WP-27516-2021
Confederation of All India Traders Vs. State of MP
the persons against whom the FIR in Crime No.288/2021 has been
registered are necessary party or not, it was replied by the counsel for
the petitioner that if this Court directs then the petitioner is ready to
implead them as a party. It is not for the Court to decide as to whether
the plaintiff/petitioner should implead anyone as a party or not. The
Court is only required to consider and decide as to whether the
persons who have not been impleaded as a party are necessary party
or not. The necessary party means a party in absence of whom an
effective decree cannot be passed.
8. "Necessary party" has been considered by the Supreme Court
in the case of Swapna Mohanty Vs. State of Odisha and others
reported in (2018) 17 SCC 621 and it has been held as under:-
"12. .............A person whose presence before a
forum may be necessary in order to enable it
effectually and completely to adjudicate upon
and settle all the questions involved in the
dispute is a necessary party. A necessary party is
one without whom no order can be made
effectively. A proper party is one in whose
absence an effective order can be made, but
whose presence is necessary for complete and
final decision on the question involved in the
proceedings. [See: Udit Narain Singh
Malpaharia v. Board of Revenue [Udit Narain
Singh Malpaharia v. Board of Revenue, AIR
1963 SC 786]."
9. The Supreme Court in the case of State of Assam Vs. Union
of India and others reported in (2010) 10 SCC 408 has held as
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THE HIGH COURT OF MADHYA PRADESH
WP-27516-2021
Confederation of All India Traders Vs. State of MP
under:-
"16. We respectfully agree with the observations
made by this Court in Udit Narain case [AIR
1963 SC 786] and adopt the same. We may add
that the law is now well settled that a necessary
party is one without whom, no order can be made
effectively and a proper party is one in whose
absence an effective order can be made but
whose presence is necessary for a complete and
final decision of the question involved in the
proceeding."
10. The Supreme Court in the case of Church of Christ
Charitable Trust and Educational Charitable Society
Represented by its Chairman Vs. Ponniamman Educational Trust
Represented by its Chairperson/Managing Trustee reported in
(2012) 8 SCC 706 has held as under:-
"26.On the other hand, when the plaintiff
itself persists in not impleading a necessary party
in spite of objection, the consequences of non-
joinder may follow. However, the said objection
should be taken in the trial court itself so that the
plaintiff may have an opportunity to rectify the
defect. The said plea cannot be raised in this
Court for the first time. This position has been
reiterated in State of U.P. v. Ram Swarup Saroj
[(2000) 3 SCC 699] . We hold that a plea as to
the non-joinder of the party cannot be raised for
the first time before this Court if the same was
not raised before the trial court and has not
resulted in failure of justice. In the case of non-
joinder, if the objection is raised for the first time
before this Court, the Court can always implead
the party on the application wherever necessary.
However, in the case on hand, for the disposal of
application filed for rejection of the plaint under
Order 7 Rule 11, the second defendant is not a
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THE HIGH COURT OF MADHYA PRADESH
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Confederation of All India Traders Vs. State of MP
necessary party, hence he need not be impleaded.
Accordingly, we reject the said objection of the
respondent herein."
11. It is well established principle of law that no one should be condemned unheard. Lot of allegations were made by Ms. Shilpi Jain during her course of arguments and tried to persuade this Court to consider and accept those allegations without even giving an opportunity of hearing to the E-commerce Platform of Amazon. In case, if the allegations made by the petitioner are accepted, then it would be a finding against a party who is not before this Court.
12. The Supreme Court in the case of Indu Bhushan Dwivedi Vs. State of Jharkhand and another reported in (2010) 11 SCC 278 has held as under:-
"21. ............The proposition laid down in the abovenoted judgment represents one of the basic canons of justice that no one can be condemned unheard and no order prejudicially affecting any person can be passed by a public authority without affording him reasonable opportunity to defend himself or represent his cause."
13. Under these circumstances, this Court is of the considered opinion that E-commerce Platform of Amazon is a necessary party but the petitioner did not avail the opportunity given by this Court to implead the E-commerce Platform of Amazon as respondent in the writ petition, but left the matter on the Court by saying that only if the Court directs, then she would implead the E-commerce Platform 7 THE HIGH COURT OF MADHYA PRADESH WP-27516-2021 Confederation of All India Traders Vs. State of MP of Amazon as respondent.
14. So far as the non-impleadment of persons who have been arrayed as an accused in FIR bearing Crime No.288/2021 is concerned, it is submitted by the counsel for the petitioner that since those are the accused persons and, therefore, they have no right or say in the matter of investigation and, therefore, they are not necessary party.
15. The submission made by the counsel for the petitioner is misconceived and is hereby dismissed.
16. The accused persons of Crime No.288/2021 have not approached this Court for change of Investigating Agency. It is the petitioner, who is not an aggrieved party, has approached this Court. It is true that the petitioner being a stranger may not be non-suited on the question of locus standi in a criminal matter but at the same time, the course of investigation cannot be changed without giving an opportunity of hearing to the persons who have been arrayed as an accused and that too, on the behest of a third person/party. For an example, a person arrayed as an accused in a complaint case is not entitled to participate in pre-registration proceedings and at the most, he can watch the proceedings and only if a summon is issued to him, he gets a right to participate and challenge the proceedings. However, if a complaint is dismissed in limine without issuing any summons to 8 THE HIGH COURT OF MADHYA PRADESH WP-27516-2021 Confederation of All India Traders Vs. State of MP the person arrayed as an accused and if the complainant files a criminal revision before the Revisional Court, then the person arrayed as an accused automatically becomes a necessary party because a right was created in his favour on account of dismissal of complaint in limine.
17. Thus, where the investigation is sought to be transferred at the behest of the third party, then in the considered opinion of this Court, the persons who have been made an accused in the said criminal investigation are necessary party for hearing. Since this Court had given an opportunity to the petitioner to implead the necessary parties, but the petitioner did not avail the said opportunity by saying that the petitioner would implead them as a party only if it is directed by the Court, this Court is of the considered opinion that this petition suffers from non-joinder of the necessary party.
18. Accordingly, the petition fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2021.12.22 17:29:37 +05'30'