Summary
Landlords and a court bailiff were summoned under Section 319 CrPC in a prosecution concerning alleged damage and theft during execution of an eviction decree. The Court found no strong and cogent trial evidence implicating them. Investigative statements could only corroborate trial evidence and could not independently justify summoning. The High Court’s order was reversed and the Magistrate’s refusal restored.
Issues
- What evidentiary threshold governs summoning an additional accused under Section 319 CrPC.
- Whether FIR allegations and Section 161 statements independently met that threshold.
- Whether sufficient trial evidence implicated the absent landlords or the bailiff.
Held
- Section 319 permits summoning a person omitted from the charge sheet, including one named in the FIR, when the necessary evidence emerges. It is an extraordinary discretionary power requiring strong and cogent evidence, exceeding the prima facie threshold for framing a charge but falling short of a determination that conviction would follow. Cross-examination need not invariably be awaited. (¶¶ 27–28, 33–34)
- The foundation must be evidence brought before the court. Investigative material, including Section 161 statements, may corroborate and support it but cannot independently replace it. The High Court erred in treating such statements as independent evidence for summoning. (¶¶ 28, 32–35)
- The landlords were admittedly absent from the incident and no witness supplied adequate evidence of their alleged conspiracy. A statement that a witness subsequently learnt the persons were sent by the landlords did not meet the strong-and-cogent threshold. Failure to file a protest petition was not an absolute statutory bar, but did not cure the evidentiary deficiency. (¶¶ 34–35, 37)
- No specific trial evidence adequately implicated the bailiff. The departmental inquiry established only dereliction of execution duties, not the alleged violent wrongdoing. Although departmental and criminal proceedings are independent and that result was not determinative, the necessary trial evidence for summoning remained absent. (¶¶ 18–20, 36)
Result
Appeals allowed without costs; High Court summoning order set aside and the Chief Metropolitan Magistrate’s rejection of the Section 319 application restored.