S. Mohammed Ispahani vs Yogendra Chandak

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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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)

Magistrate was swayed by two considerations:

(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.

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.

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.

OCTOBER 4, 2017.

Criminal Appeal No. 1720 of 2017 & Ors.