Supreme Court of India
S. MOHAMMED ISPAHANIversusYOGENDRA CHANDAK & OTHERS
- Citation
- 2017 INSC 999
- Decided
- 4 October 2017
- Disposal
- Appeal(s) allowed
- Bench
- A K SIKRI
Holding
Section 319 Cr.P.C. may be exercised only when strong and cogent evidence, recorded during trial, establishes that a person not named in the charge sheet has committed the offence, and the High Court’s order summoning the appellants was erroneous.
Summary
The appellants, landlords of a commercial premises, were not named in the charge sheet filed under Sections 379, 427, 341 r/w 34 IPC and Section 3(1) Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992, although they were mentioned in the FIR. After the trial evidence was recorded, the complainant sought to summon the appellants and a bailiff as accused under Section 319 of the Cr.P.C., which the Chief Metropolitan Magistrate dismissed for lack of sufficient evidence and because no protest petition was filed at the charge‑sheet stage. The High Court set aside that dismissal, relying on the FIR and statements under Section 161 as "evidence" and ordered the appellants to be summoned. The Supreme Court held that Section 319 can be invoked only when strong and cogent evidence, recorded during trial, exists against the proposed accused, and that statements under Section 161 are merely corroborative, not independent evidence. Consequently, the Court restored the magistrate’s order, finding no basis to summon the appellants, and allowed the appeals.
Issues considered
- Whether Section 319 Cr.P.C. can be invoked to summon a person not named in the charge sheet when only the FIR and statements under Section 161 are available.
- Whether statements recorded under Section 161 Cr.P.C. constitute "evidence" for the purpose of Section 319.
- What degree of satisfaction (strong and cogent evidence) is required to exercise the power under Section 319.
- Whether the absence of a protest petition at the charge‑sheet stage bars the court from summoning the person later.
- Whether the High Court erred in exercising its discretion to summon the appellants as accused.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 190, s. 204, s. 207, s. 208, s. 319
- Indian Penal Code, 1860s. 34, s. 341, s. 379, s. 427
- Order XXI Rule 35 CPC
- Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992s. 3(1)
Subjects
Section 319 CrPCSummoning accusedEvidence requirementCharge sheetProtest petitionCriminal procedureLandlord-tenant dispute
Judgment
[2017] 10 S.C.R. 29
S. MOHAMMED ISPAHANI A
v.
YOGENDRA CHANDAK & OTHERS
(Criminal Appeal No. 1720 of20l 7)
OCTOBER 04, 2017 B
[A. K. SIKRI AND ASHOK BI-IUSHAN, JJ.]
Code of Criminal Procedure, 1973:
s.319 - Power of court to summon those persons not named
in the charge sheet to appear and face trial - When a person is C
named in the FIR by the complainant, but Police, after investigation,
finds no role of that particular person and files the charge sheet
without implicating him, the Court is not powerless, and at the stage
of summoning, if the trial court finds that a particular person should
·be summoned as accused, even though not named in the charge D
sheet, it can do so - At that stage, chance is given to the complainant
also to file ll protest petition urging upon the trial court to summon
other persons as well who were not named in the charge sheet -
Once that stage has gone, the Court is still not powerless by virtue
of s.319 - However, this section gets triggered when during the
trial some evidence surfaces against the proposed accused. E
s.319 - Invocation of - De facto complainant was tenant in
the premises of the appellants-landlords against wlzom eviction
decree was obtained by the appellants - On the day when delivery
of possession was to be taken in terms of the order passed by the
executing court, de facto complainant submitted a complaint that F
50-60 rowdr elements armed with deadly weapons entered his
tenanted premises and threatened his staff and damaged his proper~y
and also took away valuables - Charge sheet filed under ss.379,
427, 341 r/w s.34 !PC and under s.3( I) of Tamil Nadu Property
(Prevention of Damage and Loss) Act, 1992 wherein appellants were
not named - After the death of de facto complainant, his son PW-1 G
in his deposition named the appellants and the bailiff as well -
Application filed under s.319 dismiss.ed by the Magistrate - ln
revision, High Court directed the Magistrate to implicate the
appellants also as accused - On appeal, held: The available
H
29
30 SUPREME COURT REPORTS [2017] 10 S.C.R.
A 'evidence· was not sufficient to implead the appellants as accused
in the case - The Police had, after thorough investigation, filed the
charge sheet in which the appellants were not implicated, however.
the complainant had not filed any protest petition at that stage -
Appellants/landlords were admittedly not present at the site when
the alleged incident took place, there is no 'evidence' within the
B
meaning of s.319 C1:P.C. on the basis of which they could be
summoned as [1rcused persons - PW-1 and PW-4 had deposed abaut
the incident that took place at the site and the manner in which the
persons who were present allegedly behaved - As regards the
appellant-bailiff, there was no specific attribution in the FIR or in
c the depositions of PWs 1 tc 6 in the Court - The Police, during
investigation, after the registration of FIR, did nat find anything
against the appellant/bailiff and even the department did not find
anything against him in the departmental iilqwiry - Further, during
trial, no 'strong and cogent evidence' surfaced against the appellant/
D bailiff on the basis of which he could be summoned - No case was
made out for summoning appellants under s.319 of the Cude - Tamil
Nadu Property (Prevention of Damage and Loss) Act, 1992 - s.3 -
Penal Code, 1860 - ss.379, 427, 341 rlw s.34.
Allowing the appeals, the Court
E HELD: 1. Section 319 of the Cr.P.C. is meant to rope in
even those persons who were not implicated when the charge
sheet was med but during the trial the Court finds that sufficient
evidence has come on record to summon them and face the trial.
The order of the Chief Metropolitan Magistrate reveals that while
dismissing the application of the complainant under Section 319
F of the Cr.P.C., the Chief Metropolitan Magistrate was swayed by
two considerations: The complainant (PW-1) in his examination-
in-chief had not spoken anything with regard to the alleged
conspiracy entered into between the appellants, i.. e the landlords
and the bailiff. Also other witnesses, i.e. PWs. 2, 3 and 4, who
G were working in the company of the de facto complainant had not
spoken anything with regard to the appellants. There was no
documentary evidence produced by the complainant. Therefore,
the available 'evidence' was not sufficient to implead the
appellants/proposed accused as accused in the case; The Police,
after thorough investigation, had filed the charge sheet in which
H
S. MOHAMMED ISPAHANI v. YOGENDRA CHANDAK & 31
OTHERS
the appellants were not implicated. However, the complainant A
never filed any protest petition at that stage. The High Court
did not deal with the subject matter properly and even in the
absence of strong and cogent evidence against the appellant, it
has set aside the order of the Chief Metropolitan Magistrate and
exercised its discretion in summoning the appellants as accused
B
persons. [Paras 27, 30, 33] [42-G; 46--F-H; 47-A, E]
Hardeep Singh v. State of Punjab (2014) 3 SCC 92 :
[2014] 2 SCR 1; Bijendra Singh and others v. State of
Raja.st/um (2017) 7 SCC 706 - relied on
2. When a person is named in the FIR by the complainant, c
but Police, after investigation, finds no role of that particular
person and files the charge sheet without implicating him, the
Court is not powerless, and at the stage of summoning, if the
trial court finds that a particular person should be summoned as
accused, even though not named in the charge sheet, it can do
so. At that stage, chance is given to the complainant also to file D
a protest petition urging upon the trial court to summon other
persons as well who were named in the FIR but not implicated in
the charge sheet. Once that stage has gone, the Court is still not
powerless by virtue of Section 319 of the Cr.P.C. However, this
section gets triggered when during the trial some evidence E
surfaces against the proposed accused.. In view of this, it was not
open to the High Court to rely upon the statements recorded
under Section 161 Cr.P.C. as independent evidence. It could only
be corroborative material. In the first instance, 'evidence' led
before the Court had to be taken into consideration. As far as
deposition of PW-1 given in the Court is concerned, on going F
through the said statement, it becomes clear that he has not
alleged any conspiracy on the part of the appellants/landlords. In
fact, none of the witness has said so. In the absence thereof,
along with the important fact that these appellants/landlords were
admittedly not present at the site when the alleged incident took G
place, there is no 'evidence' within the meaning of Section 319
Cr.P.C. on the basis of which they could be summoned as accused
persons. PW-1 and PW-4 have deposed about the incident that
took place at the site and the manner in which the persons who
are present allegedly behaved. In the statement of PW-4, he has
H
32 SUPREME COURT REPORTS f2017] IO S.C.R.
A alleged that "Subsequently I came to know the said people is not
police officials the people was sent by landlords of the building.••".
That statement may not be enough for roping in the appellants/
landlords to face the charge under those provisions of IPC with
which others are charged. [Paras 34, 35] [48-B-G]
B 3. Insofar as the appellant/bailiff is concerned, there is no
specific attribution in the FIR or in the depositions of PWs 1 to 6
in the Court. l\s far as the departmental inquiry, which was held
against the bailiff is concerned, he has been found guilty of
dereliction of duty only and not of other charge. In the said inquiry,
though the de facto complainant appeared and he also produced
C another witness, there w..s no utterance against the appellant/
bailiff on these allegations, because of which even the Inquiry
Officer has held that such a charge has not been proved. No
doubt, that is not a determinative fac.:ter as the criminal
proceedings are judicial proceedings, totally independent in
D nature. However, what is relevant is that the Police, during
investigation, after the registration of FIR, did not find anything
against the appellant/bailiff and even the department has not found
anything against him in the departmental inquiry. Further, during
trial, no 'strong and cogent evidence' has surfaced against the
appellant/bailiff on the basis of which he could be summoned.
E, [Para 36] [48-H; 49-A-C]
India Carat Pvt. Ltd. v. State of Karnataka (1989) 2
SCC 132 : [1989] 1 SCR 718 - held inapplicable
Geeta Ram v. Vedi Ram and Others (2002) 10 SCC 499;
p Suman v. State of Rajasthan and Another (2010) 1 SCC
250 - referred to
~a~e L!!W Reference
[2014] 2 SCR 1 relied on Para 15
(2017) 1 sec 106 relied on Para 15
G
[1989] 1 SCR 718 held inapplicable Para 24
(2002) 1o sec 499 referred to Para 24
(2010) 1 sec 250 referred to Para 25
H
S. MOHAMMED ISPAHANI v. YOGENDRA CHANDAK & 33
OTHERS
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal A
No. 1720 of 2017
.From the Judgment and Order dated 01.06.2017 of the High Court
of Judicature at Madras in Criminal Revision Case No. 628 of 2016
WITH
Cr!. A. Nos.1721 and 1722 of 2017. B
Sidharth Luthra, Sanjay R. Hegde, Rakesh Khanna, Sr. Advs.,
N. Anand Venkatesh, S. Nithin, Ms. Sonali Karwasra, Ms. Arunima
Singh, P. Kishore, Karunakar Mahalik, Nitin Thukral, R. Chandrachud,
Sriram P, Advs. for the Appellant. ·
Jaideep Gupta, Sr. Adv., Amarjit Singh Bedi, Varun Chandiok, C
Yogesh Kanna, Ms. Mahalakshmi, Sujatha Bagachi, Advs. for the
Respondents.
The Judgment of the Court was delivered by
A. K. SIKRI, J. 1. Leave granted.
2. Girdharilal Chandak, father of Respondent no. 1 (hereinafter D
referred to as "de facto complainant") lodged complaint against many
persons, including the four appellants in these appeals, on April 27, 2007
with the Inspector of Police, CBCID-Metro Wing, Egmore, Chennai.
The allegations were that at about 12.30 pm, 50-60 rowdy elements
armed with deadly weapons entered the premises of the de facto E
complainant and threatened his staff. They started damaging all the
valuables like laptops, computers and other antique valuable articles.
They threw out those articles on the road and 'took away laptops,
computers and other antiques valuable articles which were lying in the
premises, known as Door No. 35, New Door No. 9, Anna Salai,
Chennari-2. It may be mentioned here that the appellants, Mehdi Ispahani, F
Ali Ispahani and S. Mohammed Ispahani are the landlords of the aforesaid
premises of which the de facto complainant was a tenant. The landlords
have initiated eviction proceedings against the de facto complainant in
which eviction orders were passed on February 26, 2007 and appeal
was preferred by the de facto complainant against the order of eviction G
which was pending before the VII, Small Causes Court, Chennai.
' However, no. stay of the eviction order was granted by the Appellate
. Court and this refusal to grant the interim stay was upheld till this Court.
According the appellants/landlords, they had obtained warrants of
possession from the executing Court 11nd the bailiff of the Court,
H
34 SUPREME COURT REPORTS [2017] JO S.C.R.
A namely, I. Jayaraman, who is the fourth appellant, had gone to the
tenanted premises on July 24, 2007 for executing the decree and to take
possession thereby.
3. The police initially refused to register case on the complaint of
the de facto complainant. However, by orders dated October 12, 2007
B passed by the High Court in Criminal O.P. 29386 of2007 filed by the de
facto complainant, the CBCID was directed to register the case.
Accordingly, Crime Case No. 3 of 2008 was registered by the police.
Ultimately, charge sheet under Sections 379, 427, 341 read with Section
34 of IPC and Section 3(1) of Tamil Nadu Property (Prevention of
Damage and Loss) Act, 1992 was filed. In this charge sheet appellants
c were not named. During the trial, the· de facto complainant died. His
son appeared as PW- I and in his deposition, he named the appellants,
i.e., all the three landlords and bailiff as well. Thereafter, application
under Section 319 of the Code of Criminal Procedure, 1973 (for short,
'Cr.P.C.') was filed through Special Public Prosecutor for summoning
D these appellants as well, as accused persons. The Chief Metropolitan
Magistrate dismissed the said application vide orders dated August 17,
2015. Against that order of dismissal, son of the de facto complainant
(hereinafter referred to as the "complainant") filed revision petition in
the High Court. By impugned order dated November 29, 2016, the High
Court has allowed the said revision petition, thereby setting aside the
E order of the Chief Metropolitan Magistrate and directed him to implicate
the appellants herein as accused in the case pending before him. It is
this order which is under challenge before us.
4. For better understanding of the matter, we may mention the
events chronologically, with necessary details.
F 5. The de facto complainant- Girdharilal Chandak was a tenant
in the premises belonging to the appellant and his family. On an eviction
proceeding (RCOP No. 311 of 2006) initiated against the de facto
complainant, the Small Causes Court, Chennai directed his eviction vide
order dated February 26, 2007. On an Execution Petition filed by the
G appellant and other owners, the Small Causes Court, Chennai vi de order
dated April 27, 2007 appointed a bailiff and directed the delivery of
possession of the tenanted premises. Bailiff visited the premises on
April 27, 2007 and after evicting the de facto complainant put the landlords
in possession of the premises.
6. Against the order of eviction, the de facto complainant filed
H
S. MOHAMMED ISPAHANI v. YOGENDRA CHANDAK & 35
OTHERS [A. K. SIKRI, J.]
the appeal. It is a matter of record that the tenant/de facto complainant A
had also filed an application for stay of the execution proceedings which
was dismissed by the Small Causes Court, Chennai. Against non-grant
of stay, he filed the Civil Revision Petition in the High Court of Judicature
at Madras which also came to be dismissed on October 25, 2007. The
tenant/de facto complainant then preferred a Special Leave Petition
B
before this Court against the order dated October 25, 2007, but was
unsuccessful in getting stay order as his special leave petition was also
dismissed by this Court on April 07, 2008.
7. On the day when delivery of possession was taken in terms of
the orders dated April 27, 2007 passed by the Executing Court, the de
facto complainant submitted a written complaint to the police, alleging
c
that 50-60 rowdy elements accompanied by K.R. Ashok (an employee
of the appellants/landlords) and one man in civil dress claiming to be a
police official, armed with deadly weapons, entered the tenanted
premises. They threatened the staff and damaged the valuable articles
and took away the laptop, computers and the antique valuable articles. D
It was also alleged that these people took the law into their hands and
attempted to evict him and his sub-tenants without even filing an execution
petition.
8. The police did not register a case on the basis of the written
complaint of the de facto complainant as in relation to the same alleged E
incident on a complaint by a sub-tenant a case was already registered
and was being investigated in which de facto complainant was included
as a witness. In this regard, an opinion was also given by the Deputy
Director of Prosecution, Chennai City on May 16, 2007 wherein it was
opined that no case can be registered on the basis of the complaint by de
facto complainant as the matter was already investigated and. it was F
found that the allegations by de facto complainant are exaggerated.
Subsequently, on July 25, 2007 the case was handed over to Crime Branch
CID, Metro for further investigation on the orders of the Director General
of Police, Tamil Nadu. However, later as the said FIR was quashed by
the High Court of Madras, de facto complainant filed Crl. 0.P. No. G
29386 of 2007 before the High Court, seeking direction to register case
against the appellant and others. The High Court on October 12, 2007
directed the police to make an enquiry and register the case in terms of
Section 154 of the Cr.P.C. Accordingly, on July 30, 2008, the Inspector
of Police, CB CID, Metro Wing, after conducting an enquiry registered
the FIR (No. 3/2008) on the basis of the written complaint dated April H
36 SUPREME COURT REPORTS [2017] 10 S.C.R.
A 28, 2007. The landlords, i.e., the three appellants and one, K.R. Ashok
were also named as accused in the said FIR for offences under Section
379, IPC.
9. The CBCID, Metro Wing, Chennai after examining the witnesses
and on completion of investigation in FIR No. 3/2008 filed the charge
8 sheet against 15 persons before the II Metropolitan Magistrate Court.
The appellants' names were not included in the said charge sheet.
However, K.R. Ashok, who is the manager of the landlords, was named
as Accused No. I and he is facing trial. The case was then transferred
to XI Metropolitan Magistrate, Chennai and then to the Chief Metropolitan
Magistrate, Chennai where it was taken on the file as C.C. No. 4108/
C 2013. On September 19, 2013, the Chief Metropolitan Magistrate, Chennai
framed charges against the said 15 persons for offences under Section
379, 427, 341, 379 read with Section 34, IPC and Section 3(1) of the
Tamil Nadu Property Prevention of Damage and Loss Act, 1992 in C.C.
No. 4108 of2013.
D I0. As the de facto complainant passed away, his son-Respondent
no. 1 (Complainant) was examined as PWl and 5 other witnesses were
examined and cross-examined. PWI 's evidence was concluded on April
24, 2014 and PW-6's evidence was concluded on September 30, 2014.
After the prosecution evidence stood closed, the complaint filed an
application under Section 319, Cr.P.C. (Crl. MP No. 420 of2015) through
E the Public Prosecutor to implicate the landlords and the bailiff as accused
persons in the case.
11. The Chief Metropolitan Magi~trate, Chennai vi de order dated
August 17, 2015 dismissed the application filed under Section 319 Cr.P.C.
The Chief Metropolitan Magistrate noted that no protest petition was
F filed at the time of filing of the charge sheet when the names of the
landlords who were named in the FIR were dropped. Further, after
considering the material available on record, he concluded that there
was no sufficient evidence to proceed against the proposed accused,
inter alia, recording as under:
G "As already discussed above in this case, so far 6 witnesses
have been examined on the said of petitioner/prosecution. PW2,
Tr. Shahul Hameed, at the time of occurrence, worked in PWl 's
company namely World Wide Impex Pvt. Ltd., in part time, PW3
Tmt. Chandra, worked as office assistant in the said PWl 's
company, PW4 Tr. Akshay Kumar, was working as Manager in
H · PW'l company, PW5 Mr. Anand, relative of PWl and PW6
S. MOHAMMED ISPAHANI v. YOGENDRA CHANDAK & 37
OTHERS [A. K. SIKRI, J.]
Mr.. Muthuramalingam, was running a Tiffin shop, have not A
spoken anything with regard to the respondents 2 to 5. Further in
this case, the son of the de facto complainant Mr. Yogendra
Chandak examined as PWl. He also in his Chief Examination,
has not spoken anything with regard to the alleged conspiracy
alleged to have been done by the respondents 2 to 5 as alleged in B
the petition by the petitioner. There is no other documentary
evidence also produced. Therefore, a perusal of the available
evidence on the side of the prosecution, the same is not sufficient
to.implead the respondents 2 to 5/proposed accused as accused
in this case."
12. Aggrieved by the order dated August 17, 2015 passed by the C
Chief Metropolitan Magistrate, Chennai the complainant filed a revision
petition under Section 397 read with Section 401 Cr.P.C. before the
High Court being Criminal Revision Case No. 628 of 2016.
13. As stated, the High Court has, by impugned orders, allowed
the revision petition thereby directing the Chief Metropolitan Magistrate D
to summon the appellants herein and to face the trial in the said case.
The reasons which persuaded the High Court to allow the revision are
captured by it in the following.paragraphs:
"IO. Perusal of evidence of P.W. 1 would show that the complaint
has been lodged against the respondents 1 to 4 and the first
E
information report has also been registered against the
respondents 1 to 4. However, after investigation, the names of
the respondents 1 to 4 herein did not find place, in the charge
sheet. After framing of charges and during the trial only, the
prosecution has filed the petition under Section 319 ofCr.P.C. to
implicate the respondents 1 to 4 as.accused in this case. Perusal F
of the evidence of P.W. 1, who is the petitioner herein has clearly
spoken about the offence committed by the respondents I to 4
and Ex.PI would also clearly show the involvement of the
respondents 1 to 4 in the commission of offence as mentioned in
the petition. ·
- G
14. Considering all the above facts and circumstances of the case,
I am of the view that the learned trial Judge has not considered all the
aspects in a proper manner and mechanically dismissed the application
filed under Section 319 of Cr.P.C. and therefore, the order dated
17.08.2015 made in Crl.M.P. No. 4420 of 2015 in C.C. No. 4108 of
H
38 SUPREME COURT REPORTS [2017] 10 S.C.R.
A 2013 on the file of the Chief Metropolitan Magistrate, Chennai is liable
to be set aside."
14. Discussing the salient features from the aforesaid narration
and the manner in which the case proceeded, Mr. Sidharth Luthra, learned
senior counsel appearing for the three appellants/landlords, submitted
B that these appellants as landlords of the premises in-question had obtained
the decree of eviction against de facto complainant and had taken steps
to get the said decree executed by adopting lawful means. For this
purpose, they had filed the execution petition in which warrants of
possession were given in their favour by the executing court and the
bailiff was appointed for visiting the premises in-question to execute the
C warrants of possession. He emphasised that though de facto complaint
had filed the appeal against the order of eviction but he was unsuccessful
in getting the stay of the execution as his attempts in this behalf up to this
Court had failed. Therefore, argued the learned senior counsel, the steps
taken by the appellants/landlords were perfectly legal and in accordance
D with the lawful procedure. Without admitting the incident of July 24,
2007, as alleged by the de facto complainant, Mr. Luthra further submitted
that even the de facto complainant or complainant were not present at
the spot at the time of the incident and were away to the High Court
which fact has been admitted by them in the FIR No. 3/2008. Likewise,
it was also an admitted position that all the three appellants/landlords
E were not present at the spot. Further, a comprehensive investigation
was carried out by the police wherein no involvement of the appellants
was found and, therefore, they were not charge sheeted. He further
pointed out that when the charge sheet was filed without implicating the
appellants, there was no protest petition filed by the de facto complainant
F or the complainant, who were well aware of the contents of the charge
sheet. In these circumstances, argued the learned senior counsel, that
the trial court rightly dismissed the application under Section 319 of the
Cr.P.C. which was a belated attempt on the part of the complainant to
implicate the appellants, inasmuch as that application was filed much
after the complainant was examined as PW-1, and by that time the
G prosecution had even closed its evidence.
15. Questioning the rationale of the reasoning given by the High
Court, it is argued that the High Court has been influenced by a mere
fact that the names of the appellants were mentioned in the FIR by the
de facto complainant and the complainant in his deposition as PW- I
H
S. MOHAMMED ISPAHANI v. YOGENDRA CHANDAK & 39
OTHERS [A. K. SIKRI, J.]
again repeated the names of these appellants alleging that it was at their A
instance that the property of the de facto complainant was damaged
and stolen away. He submitted that on these facts, no case was made
out for summoning the appellants under Section 319 of Cr.P.C. He
referred to the Constitution Bench judgment of this Court in llardeep
Singh v. State of Punjab' wherein it is held that the test is to be applied
B
that at the stage of charge and for investigation material not to be looked
at but only the evidence which surfaced during the trial has to be taken
into consideration. He also referred a recent judgment of this Court in
Bije11dra Singh and others v. State of Rajastha11 2•
16. Mr. Sanjay R. Hegde, learned senior counsel appearing for
appellant/bailiff argued virtually on the same lines. He additionally C
submitted that the appellant was only discharging his official duties as
bailiff and did not take the law in his hands and after proper and thorough
investigation, it was found to be so by the police as well.
17. We may mention that at the time of arguments, it got revealed
that a departmental enquiry was conducted against the bailiff. In these D
circumstances, this Court directed Mr. Hegde to place on record a copy
of the charge sheet in the disciplinary proceeding as well as enquiry
report. The said documents have been filed with a note wherein it is
stated that when the appellant/bailiff went to the said suit premises to
execute the warrant, one Mr. Akshay Kumar (Manager of the E
complainant) was present in the premises and he voluntarily handed
over the possession.
18. The document filed discloses that the de facto complainant
had lodged a complaint against the appellant/bailiff before the Registrar,
Small Causes Court, Chennai stating that he had committed unlawful F
eviction while execution of warrant on April 26, 2007. It was also
complained that the appellant/bailiff acted allegedly utilizing rowdy
elements and armed with deadly weapons, trespassed into the premises
broke all the furniture's and removed all the valuable articles. Based on
the complaint lodged by the de facto complainant, an inquiry was
conducted by the VII Judge, Court of Small Causes, Chennai, on the G
following two charges framed against the appellant:
a) Whether the delinquent is guilty of dereliction of duty?
1
(2014) 3 sec 92
2
(2017) 1sec106 H
40 SUPREME COURT REPORTS [2017) 10 S.C.R.
A b) Whether the delinquent's charges have been proved or not?
After the enquiry, the VII Judge, Court of Small Causes, Chennai
found the appellant's explanations not being satisfactory and held that
the 1'1 charge against the appellant/bai'liff had been proved. Insofar as
this charge of dereliction of duty is concerned, the report of the Inquiry
8 Officer reveals that he referred to the provisions of Order XXI Rule 35
of the Code of Ci vii Procedure, 1908, as amended by the High Court.
The amended provision, in the form of sub-rule (4) of Rule 35, stipulates
that where delivery of possession of a house is to be given and it is found
to be locked, orders of the court shall be taken for breaking upon the
lock and for delivery of possession of the same to the decree hokier.
c This sub-rule also states that at the time of delivery if movables are
found in the house and the judgment debtor is absent, or if present, does
not immediately remove the same, the officer entrusted with the warrant
of delivery shall make an inventory of the articles sc found with their
probable values in the presence of respectable persons on the spot, have
D the same attested by them and leave the movables in the custody of the
decree holder after taking a bond from him for keeping the articles in
safe custody pending orders of the Court for disposal of the same. Taking
note of this provision, the Inquiry Officer went into the report that was
submitted by the appellant/bailiff after the execution of the warrants of
possession and concluded that the appellant/bailiff had not followed the
E aforesaid procedure and simply handed over the property to the agent of
the decree holder and, therefore, he was guilty of dereliction of duty.
As far as the second charge is concerned, it was based on the
allegation of the de facto complainant to the effect that the bailiff had
come with 50-60 rowdy persons, armed with weapons, and had ransacked
F the premises of the complainant and threw away the articles (it can be
seen that this allegation is the same which is the basis of the FIR as
well). However, according to the Inquiry Officer, this charge was not
proved in the inquiry. The Inquiry Officer noted in his report that the
complainant was not an eye-witness to the alleged incident. Two
G witnesses who were examined had not spoken about any facts relating
to the alleged illegal activities committed by the bailiff.
19. From the aforesaid, it is clearthat only the charge of dereliction
of duty, i.e. not executing the warrants i'n accordance with the provisions
of Order XXI Rule 35 CPC has been proved. The appellant/bailiff has
H submitted a reply to the said inquiry report dated February 19, 2013. fn
S. MOHAMMED ISPAHANI v. YOGENDRA CHANDAK & 41
OTHERS [A. K. SIKRI, J.]
his explanation, the bailiff has explained that Order XXI Rule 35(4) CPC A
is not applicable to the presence for the reason that the premises were
not locked at the time of execution of warrant: During investigation, the
challenge to the execution proceeding by the deceased tenant has been
dismissed by this Court in SLP(C) Nos. 7977-7978 of2008 by an order
dated April 07, 2008.
B
20. After the submission of the reply in the year 2013, no action
has been taken against the appellant till date, by his employer.
21. Learned counsel appearing for the complainant put stiff
resistance to the arguments advanced by the counsel for the appellants.
He reiterated that on the fateful day, the bailiff along with 50-60 rowdy c
gundas armed with deadly weapons and one police official in civil dress
visited the premises of the complainant and ransacked the said premises,
even the goods belonging to the complainant were stolen and they have
been recovered from the premises of Ispahani Group of Companies,
which bclong~d to thr appellants/landlords. According to him, this clearly
shows that the entire offence has been committed in furtherance of a
conspiracy hatched/investigation by appelfaht and other persons arrayed
as accused by virtue of the impugned order. They were the ultimate
beneficiaries of the said illegal acts and without them sponsoring and
conspiring these illegal acts behind the scenes, this incident would not
have occurred. The goods stolen from the premises of the complainant E
were taken to the premises of lspahani Group of Companies run by the
appellant and the same were recovered from the said premises during
the investigation and the said facts have duly been reflected in the
testimony of the prosecution witnesses, including that of PW!, i.e.,
complainant herein who have categorically deposed about the role of
the appellant and other persons arrayed by virtue of the impugned order F
in alleged incident.
22. The learned counsel further referred to the statement of PW-
4 who has also narrated the whole modus operandi of the crime in
question. He has deposed in his testimony " ... they lost patience and
20 persons threw all the articles from office. They thrown the articles G
in the lorry in part front of the building, with an undertaking to
send all the articles to our MD residence namely Mr. Yogendra
Chandak, subsequently the said articles taken in the lorry did not
reach in my MD residence. I was forced to sign and paper that
handed over vacant possession of the premises though some more H
42 SUPREME COURT REPORTS [2017] 10 S.C.R.
A articles were there. They threaten and put my signature .... "" .. ./
was assaulted by a group of people ... " " ... Subsequently T (</me to
know the said people is not police officials. That people were sent
by landlords of the building ... "
23. On the aforesaid basis, he argued that in the present case
B sufficient material has come on record in the testimony of PWJ to PW6
to narrate that the perpetrator of the offence were not only the employees
of the appellant but the appellant themselves as it is at their behest and
benefit the action took place and not only that after criminal intimidation
and ransacking the place, the goods were stolen and/or taken to the
premises of the appellant. In these circumstance~. the appellant should
c face the trial, was the plea of the counsel.
24. Responding to the argument predicated on non-filing of the
protest petition, he submitted: (a) Fresh evidence during recording of
testimony has come implicating the appellant; (b) the fact that the charge-
sheet was tiled by the prosecution excluding the name of the appellant
D herein was not brought to the notice of the complainant. Even the Trial
Court failed to issue any notice to the complainant regarding such fact in
complete disregard to the judgment of this Court in India Carat Pvt.
Ltd. v. State of Kar11ataka 1• He also relied upon the judgment in Geeta
Ram v. Vedi Ram and Others~ wherein this Court has held that
E provisions of Section 319 Cr.P.C. can be invoked even where the name
of person summoned is in FIR yet no charge sheet has been filed against
him and no protest petition thereafter was filed.
25. He also took aid of the judgments of this Court in Suman v.
State of Rajasthan and Another5 and Hardeep Singh's case.
F 26. He, thus, pleaded that the findings of the Hon 'ble High Court
is according to the settled principles of law and should not be interfered
with.
27. Insofaras power of the Court under Section 319 of the Cr.P.C.
to summon even those persons who are not named in the charge sheet
G to appear and face trial is concerned, the same is unquestionable. Section
319 of the Cr.P.C. is meant to rope in even those persons who were not
implicated when the charge sheet was filed but during the trial the Court
'(1989) 2 sec 132
• (2002) 10 sec 499
H '(2010) 1sec 2so
S. MOHAMMED ISPAHANI v. YOGENDRA CHANDAK & 43
OTHERS [A. K. SIKRI, J.]
finds that sufficient evidence has come on record to summon them and A
face the trial. In Hardeep Singh's case, the Constitution Bench of this
Court has settled the law in this behalf with authoritative pronouncement,
thereby removing the cobweb which had been created while interpreting
this provision earlier. As far as object behind Section 319 of the Cr.P.C.
is concerned, the Court had highlighted the same as under:
B
"The court is sole repository of justice and a duty is cast upon it
to uphold the rule oflaw and, therefore, it will be inappropriate to
deny the existence of such powers with the courts in our criminal
justice system where it is not uncommon that the real accused,
at times, get away by manipulating the investigating and/or the
prosecuting agency. The desire to avoid trial is so strong that an c
accused makes efforts at times to get himself absolved even at
the stage of investigation or inquiry even though he may be
connected with the commission of the offence."
28. At the s:nne time, the Constitution Bench has clarified that
the power under Section 319 of the Cr.P.C. can only be exercised on D
'evidence' recorded in the Court and not material gathered at the
investigation stage, which has already been tested at the stage under
Section 190 of the Cr.P.C. and issue of process under Section 204 of the
Cr.P.C. This principle laid down in Hardeep Singh's case has been
explained in B1je11dra Singh and Others v. State of Rajastha116 in the E
following manner:
"I 0. It also goes without saying that Section 319 CrPC, which is
an enabling provision empowering the Court to take appropriate
steps for proceeding against any person, not being an accused,
can be exercised at any time after the charge-sheet is filed and F
before the pronouncement of the judgment, except during the
stage of Sections 207/208 CrPC, the committal, etc. which is
only a pre-trial stage intended to put the process into motion.
11. In Hardeep Singh case, the Constitution Bench has also
settled the controversy on the issue as to whether the word
G
''evidence" used in Section 319( 1) CrPC has been used in a
comprehensive sense and indicates the evidence collected during
investigation or the word "evidence'' is limited to the evidence
recorded during trial. It is held that it is that material, after
'c2017J 7 sec 106
H
44. SUPREME COURT REPORTS [2017] 10 S.C.R.
A cognizance is taken by the court, that is available to it while
making an inquiry into or trying an offence, which the court can
utilise or take into consideration for supporting reasons to summon
any person on the basis of evidence adduced before the court.
The word "evidence" has to be understood in its wider sense
both at the stage of trial and even at the stage of inquiry. It
B
means that the power to proceed against any person after
summoning him can be exercised on the basis of any such material
as brought forth before it. At the same time, this Court cautioned
that the duty and obligation of the court becomes more onerous
to invoke such powers consCiously on such material after
c evidence has been led during trial. The Court also clarified that
"evidence" under Section 319 CrPC could even be examination-
in-chief and the Court is not required to wait till such evidence is
tested on cross-examination, as it is the satisfaction of the court
which can be gathered from the reasons recorded by the court
in respect of complicity of some other person(s) not facing trial
D
in the offence.
12. The moot question, however, is the degree of satisfaction
that is required for invoking the powers under Section 319 CrPC
and the related question is as to in what situations this power
should be exercised in respect of a person named· in the FIR but
E not charge-sheeted. These two aspects were also specifically
dealt with by the Constitution Bench in Hardeep Singh case and
answered in the following manner: (SCC pp. 135 & 138. paras
95 & 105-106)
"95. At the time of taking cognizance, the court has to see
F whether a prima facie case is made out to proceed against the
accused. Under Section 319 CrPC, though the test of prima
facie case is the same, the degree of satisfaction that is required
is much stricter. A two-Judge Bench of this Court
in Vikas v. State of Rajasthan [Vikas v. State of Rajasthan,
G (2014) 3 SCC 321 : (2014) 2 SCC (Cri) 172], held that on the
[Ed.: The words between two asterisks have been emphasised
in original.] objective satisfaction [Ed.: The words between two
asterisks have been emphasised in original.] of the court a
person may b e " arres t ed" or " summone d" , as th e
circumstances of the case may require, if it appears from the
H
S. MOHAMMED ISPAHANI v. YOGENDRA CHANDAK & 45
OTHERS [A. K. SIKRI, J.]
evidence that any such person not being the accused has A
cot:nmitted an offence for which such person could be tried
together with the already arraigned accused persons.
***
105. Power under Section 319 CrPC is a discretionary and an
extraordinary power. It is to be exercised sparingly and only in B
those cases where the circumstances of the case so warrant.
· It is not to be exercised because the Magistrate or the Sessions
Judge is of the opinion that some other person may also be
guilty of com1i1itting that offence. Only where strong and cogent
evidence occurs against a person from the evidence led before c
the court that such power should be exercised and not in a
casual and cavalier manner.
106. Thus, we hold that though only a prima facie case is to be
established from the evidence Jed before the court, not
necessarily tested on the anvil of cross-examination, it requires D
much stronger evidence than mere probability of his complicity.
The test that has to be applied is one which is more than prima
facie case as exercised at the time of framing of charge, but
short of satisfaction to an extent that the evidence. if goes
unrebutted. would lead to conviction. In the absence of such
satisfaction, .the court should refrain from exercising power E
under Section 319 CrPC. In Section 319 CrPC the purpose of
·providing if "it appears from the evidence that any person not
being the accused has committed any offence" is clear from
the words " [Ed.: The words between two asterisks have been
emphasised in original.] for which such person could be tried F
together with the accused [Ed.: The words between two
asterisks·ha'le been emphasised in original.]". The words used
are not "for which such person could be convicted". There is,
therefor~. no scope for the court acting under Section 319 CrPC
to form any opinion as to the guilt of tile accused:"
G
(emphasis supplied)
13 .. Jn order to answer the question, some of the principles
enunciated in Hardeep Singh case may be recapitulated: power
under Section 319 CrPC can be exercised by the trial court at
· any stage durin.g the trial i.e. bef?re the conclusion of trial, to H
46 SUPREME COURT REPORTS (2017] 10 S.C.R.
A summon any person as an accused and face the trial in the ongoing
case, once the trial court finds that there is some "'evidence"
against such a person on the basis of which evidence it can be
gathered that he appears to be guilty of the offence. The
"'evidence" herein means the material that is brought before the
court during trial. Insofar as the material/evidence collected by
B
the IO at the stage of inquiry is concerned, it can be utilised for
corroboration and to support the evidence recorded by the court
to invoke the power under Section 319 CrPC. No doubt, such
evidence that has surfaced in examination-in-chief, without cross-
examination of witnesses, can also be taken into consideration.
c However, since it is 1 discretionary power given to the court
under Section 319 CrPC and is also an extraordinary one, same
has to be exercised sparingly ahd only in those cases where the
circumstances of the case so warrant. The degree of satisfaction
is more than the degree which is warranted at the time of framing
of the charges against others in respect of whom charge-sheet
D
was filed. Only where strong and cogent evidence occurs against
a person from the evidence led before the court that such power
should be exercised. It is not to be exercised in a casual or a
cavalier manner. The prima facie opinion whid1 is to be formed
requires stronger evidence than mere probability of his
E complicity."
29. Keeping in view the aforesaid scope of Section 319 Cr.P.C.,
we now proceeu to examine the present case.
30. The order of the learned Chief Metropolitan Magistrate reveals
that while dismissing the application of the complainant under Section
F 319 of the Cr.P.C., the Chief Metropolitan Magistrate was swayed by
two considerations:
(a) The complainant (PW-I) in his examination-in-chief had not spoken
anything with regard to the alleged conspiracy entered into between
the appellants, i.. ~ the landlords and the bailiff. Also other witnesses,
G i.e. PWs. 2, 3 and 4, who were working in the company of the de
facto complainant had not spoken anything with regard to the
appellants. There was no documentary evidence produced by the
complainant. Therefore, the available 'evidence' was not sufficient
to implead the appellants/proposed accused as accused in the case.
H
S. MOHAMMED ISPAHANI v. YOGENDRA CHANDAK & 47
OTHERS [A. K. SIKRI, J.]
(b) The Police, after thorough investigation, had tiled the charg sheet in A
which the appellants were not implicated. However, the complainant
never \iled any protest petition at that stage.
31. Taking the aforesaid grounds as their arguments, learned
counsel for the appellants have argued that there is no 'evidence' within
the meaning of Section 319 of the Cr.P.C. The argument advanced is B
that the application filed by the complainant under Section 319 Cr.P.C.
was an afterthought and belated effort on the part of the complainant,
which was filed much after the recording of evidence of PW- I, that too
when the prosecution evidence had already been concluded.
32. As against the above, the High Court, in the impugned judgment, c
has been influenced by the fact that names of the appellants were
mentioned in the FIR and even in the statement of witnesses recorded
under Section 161 of the Cr.P.C. these apP,ellants were named and such
statements under Section 161 Cr.P.C. would constitute 'documents'. In
this context, the High Court has observed that 'evidence' within the
meaning of Section 319 Cr.P.C. would include the aforesaid statements D
and, therefore, the appellants could be summoned.
33. The aforesaid reasons given by the High Court do not stand
the judicial scrutiny. The High Court has not dealt with the subject
matter properly and even in the absence of strong and cogent evidence
against the appellant, it has set aside the order of the Chief Metropolitan E
Magistrate and exercised its discretion in summoning in summoning the
appellants as accused persons. No doubt, at one place the Constitution
Bench observed in llardeep Singh's case that the word 'evidence' has
to be understood in its wider sense, both at the stage of trial and even at
the stage of inquiry. In paragraph I 05 of the judgment, however, it is F
observed that 'only where strong and cogent evidence occurs against a
person from the evidence led before the court that such power should
be exercised and not in a casual and cavalier manner. This sentence
gives an impression that only that evidence which has been led before
the Court is to be seen and not the evidence which was collected at the
stage of inquiry. However there is no contradiction between the two G
observations as the Court also clarified that the 'evidence', on the basis
of which an accused is to be summoned to face the trial in an ongoing
case, has to be the material that is brought before the Court during trial.
The material/evidence collected by the investigating officer at the stage
H
48 SUPREME COURT REPORTS [2017] IO S.C.R.
A of inquiry can only be utilised for corroboration and to support the evidence
recorded by the Court to invoke the power under Section 319 Cr.P.C.
34. It needs to be highlighted t~at when a person is named in the
FIR by the complainant, but Police, after investigation, finds no role of
that particular person and files the charge sheet without implicating him,
B the Court is not powerless, and at the stage of summoning, if the trial
court finds that a particular person should be summoned as accused,
even though not named in the charge sheet, it can do so. At that stage,
chance is given to the complainant also to file a protest petition urging
upon the trial court to summon other persons as well who were named
in the FIR but not implicated in the charge sheet. Once that stage has
c gone, the Court is still not powedess by virtue of Section 319 of the
Cr.P.C. However, this section gets triggered when during the trial some
evidence surfaces against the proposed accused. ·
35. In view of the above, it was not open to the High Court to rely
upon the statements recorded under Section 161 Cr.P.C. as independent
D evidence. It could only be corrobofiative material. In the first instance,
'evidence' led before the Court had to be taken into consideration. As
far as deposition of PW-I which was given in the Court is concerned, on
going through the said statement, it becomes clear that he has not alleged
any conspiracy on the part of the appellants/landlords. In fact, none of
E the witness has said so. In the absence thereof, along with the important
fact that these appellants/landlords were admittedly not present at the
site when the alleged incident took place, we do not find any 'evidence'
within the meaning of Section 319 Cr.P.C. on the basis of which they
could be summoned as accused persons. PW-1 and PW-4 have deposed
about the incident that took place at the site and the manner in which the
F persons who are present allegedly behaved. In the statement of PW-4,
he has alleged that "Subsequently I came to know the said people is not
police officials the people was sent by landlords of the building ... ". That
statement may not be enough for roping in the appellants/ landlords to
face the charge under those provisions of IPC with which others are
G charged. The standard of evidence mentioned in Hardeep Singh's
case, namely, 'strong and cogent evidence', is lacking.
36. Insofar as the appellant/bailiff is concerned, there is no specific
attribution in the FIR or in the depositions of PWs 1 to 6 in the Court. As
far as the departmental inquiry, which was held against the bailiff is
H concerned, as already noted above, he has been found guilty of dereliction
S. MOHAMMED ISPAHANI v. YOGENDRA CHANDAK & 49
OTHERS [A. K. SIKRI, J.]
of duty only and not of other charge. Pertinently, in the said inquiry, A
thought the de facto complainant appeared and he also produced another
witness, there was no utterance against the appellant/ba\liff on these
allegations, because of which even the Inquiry Officer h(is held that
such a charge has not been proved. No doubt, that is not a determinative
factor as the criminal proceedings are judicial proceedings, totally B
independent in nature. However, what is relevant is that the Police, during
investigation, after the registration of FIR, did not find anything against
the appellant/bailiff and even the department has not found anything
against him in the departmental inquiry. Further, as pointed out above,
during trial, no 'strong and cogent evidence' has surfaced against the
appellant/bailiff on the basis of which he could be summoned. C
37. Having regard to the aforesaid discussion, judgment cited by
the learned counsel for the complainant would be of no help to him.
Decision in India Carat Pvt. Ltd. 's case was cited to contend that the
trial court failed to issue any notice to the complainant at the time of
summoning the persons implicated in the charge sheet. However, insofar D
as issue of initial summoning of the trial court is concerned, whereby the
appellants were not summoned, this order was not challenged by the
complainant at the stage. At this stage, we are concerned only with the
exercise of jurisdiction under Section 319 Cr.P.C. Insofar as judgment
in Geeta Ram's case is concerned, there is no quarrel about the
proposition that provisions of Section 319 can be invoked even where E
the name of the person is in the FIR yet no charge sheet is filed against
him. It is again emphasized that the question is as to whether there is a
proper exercise of power under Section 319 Cr.P.C. in the instant case.
38. We, accordingly, allow these appeals and set aside the order
passed by the High Court and restore that of the Chief Metropolitan F
Magistrate. There shall, however, be no order as to costs.
Devika Gujral Appeals allowed.
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