Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2017 Supreme(SC) 976

SUPREME COURT OF INDIA
A.K. Sikri, Ashok Bhushan, JJ.
S. Mohammed Ispahani – Appellants
Versus
Yogendra Chandak and Others – Respondents
Criminal Appeal No. 1720 of 2017 (Arising Out of SLP (Crl.) No. 5308 of 2017) 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)
Decided On : 4.10.2017

Advocates Appeared:
For the Appellants : S. Nithin, Anand Venkatesh N., Ms. Sonali Karwasra, Ms. Arunima Singh, Adithya Varadarajan, Ms. Purnima Raj, Panshul Chandra, Karunakar Mahalik, R. Chandrachud, Nitin Thukral, Advs.
For the Respondents: Amarjit Singh Bedi, Varun Chandiok, M. Yogesh Kanna, Ms. Sujata Bayadhi, Advs.

IMPORTANT POINT
The power u/s 319 CrPC can only be exercised on ‘strong and cogent’ evidence recorded in the court; and not on the basis of material gathered at investigation stage already utilized at stage of sections 190 and 204 CrPC.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 319 – Power to summon persons not named in charge sheet to appear and face trial unquestionable – However, the power can only be exercised on evidence recorded in the court – Not on the basis of material gathered at investigation stage already utilized at stage of sections 190 and 204 CrPC – Such material can be used to corroborate evidence recorded in court. (Para 27, 28, 33)
       (2014) 3 SCC 92; (2017) 7 SCC 706 – Relied upon
       (b) Code of Criminal Procedure, 1973 – Section 319 – Statement recorded u/s 161 – Not evidence for the purposes of section 319 – Instantly, moreover, no witness alleging any conspiracy on the part of the appellants/landlords – Appellants/landlords not present at the site – Held, there was no evidence within meaning of section 319 to summon the appellants/landlords – evidence must be 'strong and cogent’ – Impugned judgment not sustainable. (Para 33, 35)
       (1989) 2 SCC 132; (2002) 10 SCC 499 – Distinguished
       Facts of the case:
       Father of the respondent no. 1, the de facto complainant, was tenant of the appellants 1 to 3 – Eviction suit filed by appellants was decreed and stay of execution proceedings was refused up to the Supreme Court. When the appellants with the bailiff of the court (Appellant no. 4) went to take possession, the de facto complainant made a complaint of vandalizing his tenanted shop by the appellants. However, FIR was registered only after high court intervention u/s 379, 427, 341 read with Section 34 of IPC IPC and Section 3(1) of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992.
       Application u/s 319 CrPC for summoning the present appellants was dismissed.
       High Court allowed the revision petition.
       Finding of the Court:
       Impugned judgment is not sustainable.
       Result: Appeals allowed.

Judgement Key Points

The legal document discusses the exercise of the power under Section 319 of the Criminal Procedure Code (CrPC) in the context of criminal proceedings. The key point established is that such power can only be exercised when there is strong and cogent evidence recorded in the court, not merely material gathered during investigation or from statements under Section 161 CrPC. The evidence must be substantial enough to support summoning a person as an accused during ongoing trial proceedings.

The document emphasizes that the evidence supporting the invocation of Section 319 must be more than mere probability or suspicion; it requires a higher standard of proof, characterized as strong and cogent. Evidence collected during trial, including examination-in-chief and any corroborative material, can be considered, but evidence obtained solely during investigation, especially if already tested or used to dismiss initial charges, does not suffice for summoning additional accused under Section 319.

Furthermore, the exercise of this power is discretionary and must be exercised sparingly. It should only be invoked when the evidence before the court clearly indicates the involvement of a person in the commission of the offence, beyond mere allegations or statements. The court must be satisfied that the evidence, if unrebutted, would likely lead to conviction, and it should not be used casually or cavalierly.

In the specific case discussed, the court found that the evidence was insufficient to exercise the power under Section 319 against the appellants, as there was no strong and cogent evidence linking them to the offence during the trial. The statements under Section 161 CrPC, while relevant, were considered corroborative rather than substantive evidence. The court also noted that the absence of the accused at the scene and the thorough investigation that did not implicate them further supported the decision to set aside the High Court's order and restore the trial court's decision.

In summary, the document underscores that the power under Section 319 CrPC is a serious judicial tool that requires careful and justified exercise based on substantial evidence, and it cannot be invoked solely on the basis of statements or investigation material that has already been tested or dismissed during the process.

JUDGMENT

A.K. Sikri, J.

Leave granted.

2. Girdharilal Chandak, father of Respondent no. 1 (hereinafter referred to as "de facto complainant") lodged complaint against many persons, including the four appellants in these appeals, on 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 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 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 27, 2007. On an Execution Petition filed by the appellant and other owners, the Small Causes Court, Chennai vide order dated February 26, 2007 appointed a bailiff and directed the delivery of possession of the tenanted premises. Bailiff visited the premises on February 17, 2007 and after evicting the de facto complainant put the landlords in possession of the premises.

6. Against

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2017 Supreme(SC) 976

IMPORTANT POINTThe power u/s 319 CrPC can only be exercised on ‘strong and cogent’ evidence recorded in the court; and not on the basis of material gathered at investigation stage already utilized at stage of sections 190 and 204 CrPC.

Cases Referred (4)

IMPORTANT POINT
The power u/s 319 CrPC can only be exercised on ‘strong and cogent’ evidence recorded in the court; and not on the basis of material gathered at investigation stage already utilized at stage of sections 190 and 204 CrPC.