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)

WITH

CRIMINAL APPEAL NO. 1721 OF 2017

(ARISING OUT OF SLP (CRL.) NO. 5392 OF 2017)

AND

CRIMINAL APPEAL NO. 1722 OF 2017

(ARISING OUT OF SLP (CRL.) NO. 5411 OF 2017)

JUDGMENT
A.K. SIKRI, J.

Leave granted.

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

Signature Not Verified

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

Digitally signed by
ASHWANI KUMAR
Date: 2018.02.08
16:42:02 IST
Reason:

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

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 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

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 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

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 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

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 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.

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 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

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 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

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 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
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 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.

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 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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(arising out of SLP (Crl.) No. 5308 of 2017 & Ors.) Page 10 of 30
 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
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(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

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 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

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 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

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 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

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 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

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 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
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 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.
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 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.
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 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.
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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)

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

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(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

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(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,

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 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

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(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.

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 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.

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