S. MOHAMMED ISPAHANI versus YOGENDRA CHANDAK & OTHERS
[2017] 10 S.C.R. 29, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Body
[2017] 10 S.C.R. 29 
S. MOHAMMED ISPAHANI 
v. 
YOGENDRA CHANDAK & OTHERS 
(Criminal Appeal No. 1720 of20l 7) 
OCTOBER 04, 2017 
[A. K. SIKRI AND ASHOK BI-IUSHAN, JJ.] 
Code of Criminal Procedure, 1973: 
s.319 - Power of court to summon those persons not named 
A 
B 
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 
29 
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SUPREME COURT REPORTS 
[2017] 10 S.C.R. 
'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 
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 
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. 
E 
F 
Allowing the appeals, the Court 
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 
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 
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 
B 
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 
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, 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 
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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 
G (2017) 1 sec 106 
relied on 
Para 15 
[1989] 1 SCR 718 
held inapplicable 
Para 24 
(2002) 1 o 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. 
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. 
· 
B 
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 
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 11nd the bailiff of the Court, 
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SUPREME COURT REPORTS 
[2017] JO S.C.R. 
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 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 
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. 
F 
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 
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. 
H 
6. Against the order of eviction, the de facto complainant filed
S. MOHAMMED ISPAHANI v. YOGENDRA CHANDAK & 
OTHERS [A. K. SIKRI, J.] 
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. 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. 0.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, CB CID, Metro Wing, after conducting an enquiry registered 
the FIR (No. 3/2008) on the basis of the written complaint dated April 
35 
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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 
I 0. 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 
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. 
· 
-
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 
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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." 
B 
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 
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, 
E 
F 
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 
G prosecution had even closed its evidence. 
H 
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
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 
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 Rajastha112• 
B 
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 
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 
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 
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SUPREME COURT REPORTS 
[2017) 10 S.C.R. 
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 
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. 
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 & 
OTHERS [A. K. SIKRI, J.] 
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 of2008 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. 
41 
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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 
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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 
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 
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 Kar11ataka1• 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) 1 sec 2so
S. MOHAMMED ISPAHANI v. YOGENDRA CHANDAK & 
OTHERS [A. K. SIKRI, J.] 
finds that sufficient evidence has come on record to summon them and 
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: 
"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 
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 
43 
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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 
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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 
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 
'c2017J 7 sec 106 
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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 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 
b 
" 
t d" 
" 
d" 
th 
person may 
e 
arres e 
or 
summone 
, as 
e 
circumstances of the case may require, if it appears from the
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 
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 
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 
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·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:" 
(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 
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· any stage durin.g the trial i.e. bef?re the conclusion of trial, to 
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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 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 
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 
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 
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, 
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.
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 
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 
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 
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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 
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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 
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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, 
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 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 
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 PW s 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 
E 
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. 
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. 
Devika Gujral 
Appeals allowed. 
F