REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1720 OF 2017 (ARISING OUT OF SLP (CRL.) NO. 5308 OF 2017)

S. MOHAMMED ISPAHANI .....APPELLANT(S)

VERSUS

YOGENDRA CHANDAK AND OTHERS .....RESPONDENT(S)

W I T H

CRIMINAL APPEAL NO. 1721 OF 2017 (ARISING OUT OF SLP (CRL.) NO. 5392 OF 2017)

A N D

CRIMINAL APPEAL NO. 1722 OF 2017 (ARISING OUT OF SLP (CRL.) NO. 5411 OF 2017)

J U D G M E N T

A.K. SIKRI, J.

Leave granted.

2)Girdharilal  Chandak,  father  of  Respondent  no.  1  (hereinafter

referred to as “de facto  complainant”) lodged complaint against

many persons, including the four appellants in these appeals, on

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 1 of 30

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  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, 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 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 and the bailiff of the Court, namely, I.

Jayaraman, who is the fourth appellant, had gone to the tenanted Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 2 of 30

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 passed by the High Court in Criminal O.P. 29386 of 2007

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  were  not  named.

During the trial, the de facto complainant died.  His son appeared

as PW-1 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 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

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 3 of 30

impugned order dated November 29, 2016, the High Court has

allowed the said revision petition, thereby setting aside the 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.

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  appellant  and  other  owners,  the  Small

Causes Court, Chennai vide 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 the

appeal.   It  is  a  matter  of  record  that  the  tenant/de  facto

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 4 of 30

complainant 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 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 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.  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.

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 5 of 30

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  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 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.  O.P. No. 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,  CBCID,  Metro  Wing,  after  conducting  an  enquiry

registered  the  FIR  (No.  3/2008)  on  the  basis  of  the  written

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 6 of 30

complaint  dated  April  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  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. 1 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.  4108/2013.   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 of 2013.

10) As  the  de  facto  complainant  passed  away,  his  son  –

Respondent no. 1 (Complainant) was examined as PW1 and 5

other  witnesses  were  examined  and  cross-examined.   PW1’s

evidence was concluded on April 24, 2014 and PW-6’s evidence Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 7 of 30

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 of 2015) through the Public

Prosecutor to implicate the landlords and the bailiff as accused

persons in the case.

11) The  Chief  Metropolitan  Magistrate,  Chennai  vide  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 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:

“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  PW1’s  company namely World Wide Impex Pvt. Ltd., in part time, PW3 Tmt. Chandra, worked as office assistant in the said PW1’s company, PW4 Tr. Akshay Kumar, was working as  Manager  in  PW’1  company,  PW5  Mr.  Anand, relative of PW1 and PW6 Mr. Muthuramalingam, was running a Tiffin shop, have not 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  PW1.   He  also  in  his  Chief Examination, has not spoken anything with regard to the alleged conspiracy alleged to have been done by

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 8 of 30

the respondents 2 to 5 as alleged in 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 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 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:

“10.  Perusal of evidence of P.W. 1 would show that the  complaint  has  been  lodged  against  the respondents 1 to 4 and the first 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 of Cr.P.C. to implicate the respondents 1 to 4 as accused in this case.  Perusal of the evidence of  P.W.  1,  who  is  the  petitioner  herein  has  clearly spoken  about  the  offence  committed  by  the respondents 1 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.

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 9 of 30

11.  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 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 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 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

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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 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  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 prosecution had even closed its

evidence.

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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-1  again  repeated  the  names  of  these

appellants alleging that it was at their 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

Hardeep Singh v. State of Punjab1  wherein it is held that the

test  is  to  be  applied  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  Bijendra

Singh and others v. State of Rajasthan2.                       

16) Mr. Sanjay R. Hegde, learned senior counsel appearing for

appellant/bailiff argued virtually on the same lines. He additionally

submitted  that  the  appellant  was  only  discharging  his  official

duties as bailiff and did not take the law in his hands and after

1  (2014) 3 SCC 92 2  (2017) 7 SCC 706  Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 12 of 30

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 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 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 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 Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 13 of 30

the VII Judge, Court of Small Causes, Chennai, on the following

two charges framed against the appellant:  

a) Whether the delinquent is guilty of dereliction of duty?

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 1st charge against the appellant/bailiff had been

proved.  Insofar as this charge of dereliction of duty is concerned,

the report  of  the Inquiry Officer reveals that  he referred to the

provisions of Order XXI Rule 35 of the Code of Civil 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

holder.  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 so found with their probable values in the

presence  of  respectable  persons  on  the  spot,  have  the  same

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 14 of 30

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  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 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 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  clear  that  only  the  charge  of

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 15 of 30

dereliction of duty, i.e. not executing the warrants in accordance

with the provisions of Order XXI Rule 35 CPC has been proved.

The  appellant/bailiff  has  submitted  a  reply  to  the  said  inquiry

report dated February 19, 2013.  In his explanation, the bailiff has

explained that Order XXI Rule 35(4) CPC 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 of 2008 by an

order dated April 07, 2008.

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 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 belonged to

the appellants/landlords.  According to him, this clearly shows that Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 16 of 30

the  entire  offence  has  been  committed  in  furtherance  of  a

conspiracy hatched/investigation by appellant 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  were  taken  to  the  premises  of

Ispahani 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  PW1, i.e.,  complainant

herein  who  have  categorically  deposed  about  the  role  of  the

appellant and other persons arrayed by virtue of the impugned

order 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 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

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 17 of 30

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 articles were there.  They threaten and put my

signature....””...I  was  assaulted  by  a  group  of  people...”

“...Subsequently  I  came 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

sufficient material has come on record in the testimony of PW1 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 circumstances, the appellant should 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 filed by the prosecution excluding

the name of the appellant herein was not brought to the notice of

the complainant.  Even the Trial Court failed to issue any notice to Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 18 of 30

the complainant regarding such fact in complete disregard to the

judgment  of  this  Court  in  India  Carat  Pvt.  Ltd.  v. State  of

Karnataka3 .  He also relied upon the judgment in Geeta Ram v.

Vedi  Ram  and  Others4 wherein  this  Court  has  held  that

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.

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) Insofar  as  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 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 finds that sufficient

evidence has come on record to summon them and face the trial.

3 (1989) 2 SCC 132 4  (2002) 10 SCC 499 5 (2010) 1 SCC 250 Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 19 of 30

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:

“The court is sole repository of justice and a duty is cast upon it to uphold the rule of law 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  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 same time, the Constitution Bench has clarified that

the power under Section 319 of the Cr.P.C. can only be exercised

on ‘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  Brjendra Singh

and Others v. State of Rajasthan6 in the following manner:

“10.  It  also goes without  saying that  Section 319 CrPC, which is  an enabling provision empowering the Court  to

6  (2017) 7 SCC 706 Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 20 of 30

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 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 “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 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  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 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 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 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 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

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 21 of 30

of  this  Court  in Vikas v. State  of Rajasthan [Vikas v. State of Rajasthan, (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  be  “arrested”  or “summoned”, as the circumstances of the case may require, if it appears from the evidence that any  such  person  not  being  the  accused  has committed  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 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 committing that offence. 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.

106.  Thus,  we  hold  that  though  only  a  prima facie case is to be established from the evidence led before the court,  not  necessarily tested on the anvil of cross-examination, it requires 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 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  together  with  the accused [Ed.: The words between two asterisks have been emphasised in original.] ”. The words used are not  “for  which such person could be

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 22 of 30

convicted”. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.”

(emphasis supplied)

13.  In 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  during  the  trial  i.e.  before  the conclusion of trial, to 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 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. However, since it is a discretionary power given to the court under Section 319 CrPC and is also an extraordinary one, same has  to  be  exercised  sparingly  and  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  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 which is to be formed requires stronger evidence than mere probability of his complicity.”

29) Keeping in view the aforesaid scope of Section 319 Cr.P.C.,

we now proceed 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  319  of  the  Cr.P.C.,  the  Chief  Metropolitan Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 23 of 30

Magistrate was swayed by two considerations:

(a) 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 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.

(b) The Police, after thorough investigation, had filed the charg

sheet in which the appellants were not implicated.  However,

the complainant never filed 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 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

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 24 of 30

of evidence of PW-1, that too when the prosecution evidence had

already been concluded.

32) As  against  the  above,  the  High  Court,  in  the  impugned

judgment,  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

appellants 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  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 Magistrate and exercised its discretion

in summoning in summoning the appellants as accused persons.

No  doubt,  at  one  place  the  Constitution  Bench  observed  in

Hardeep  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  105  of  the  judgment, Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 25 of 30

however,  it  is  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

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 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 that 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, 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

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 26 of 30

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

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 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 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 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 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  persons  who  are  present

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 27 of 30

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 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 concerned, as already noted above, he has

been  found  guilty  of  dereliction  of  duty  only  and  not  of  other

charge.   Pertinently,  in  the  said  inquiry,  thought  the  de  facto

complainant  appeared  and he  also  produced  another  witness,

there  was  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  factor  as  the  criminal  proceedings  are  judicial

proceedings,  totally  independent  in  nature.  However,  what  is

relevant  is  that  the  Police,  during  investigation,  after  the

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 28 of 30

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.

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 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 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

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 29 of 30

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 Magistrate.  There shall, however, be no order as to

costs.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; OCTOBER 4, 2017.

Criminal Appeal No. 1720 of 2017 & Ors. (arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 30 of 30