Case: S. Mohammed Ispahani Vs. Yogendra Chandak &amp; Others

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 April 27, 2007 with the Inspector of Police,Wing, Egmore, Chennai. The allegations were that at about 12.30 pm,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,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 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 asand 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 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.The de facto complainantGirdharilal 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 27, 2007. On an Execution Petition filed by the appellant and other owners, the Small Causes Court, Chennai vide order dated February 26, 2007 appointed a bailiff and directed the delivery of possession of the tenanted premises. Bailiff visited the premises on February 17, 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 complainant had also filed an application for stay of the execution proceedings which was dismissed by the Small Causes Court, Chennai. Againstof 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 thatrowdy 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 hiswithout 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 incident on a complaint by aa 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 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 sonRespondent no. 1 (Complainant) was examined as PW1 and 5 other witnesses were examined andPW1s evidence was concluded on April 24, 2014 andevidence 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 asalready 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 PW1s company namely World Wide Impex Pvt. Ltd., in part time, PW3 Tmt. Chandra, worked as office assistant in the said PW1s company, PW4 Tr. Akshay Kumar, was working as Manager in PW1 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 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.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 followingPerusal 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.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."

Reasoning:
19. From the aforesaid, it is clear that only the charge of 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.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.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.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 of evidence ofthat too when the prosecution evidence had already been concluded.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 Singhs 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, 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 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 ofwhich 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.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 ofhe 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 Singhs 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.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 Rams 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 Cr.P.C. in the instant case.