S. MOHAMMED ISPAHANI versus YOGENDRA CHANDAK & OTHERS

Citation: [2017] 10 S.C.R. 29 · Decided: 04-10-2017 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Appeal(s) allowed

Cited by 7 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

[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 
H 
30 
A 
B 
c 
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; T

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