PERIYASAMI AND ORS. versus S. NALLASAMY on 14 March 2019

1. The present appeal is directed against an order passed by theHigh Court of Judicature at Madras on 28.08.2018 whereby an orderpassed by the District Munsif cum Judicial Magistrate[1] on 27.02.2015dismissing an application under Section 319 of the Code of CriminalProcedure, 1973[2] was set aside and the appellants were ordered to beimpleaded as accused and to be proceeded against in accordance withlaw.

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2. A First Information Report for the offences under Sections147, 448, 294(b) and 506 of IPC was registered on 29.05.2011 inpursuance of an order passed by the High Court of Judicature at Madrason 26.05.2011 in a writ petition filed by S. Nallasamy[3] giving direction toregister the First Information Report.

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3. The Complainant married to Thangamani in the year 1998. It isalleged that the wife of the Complainant would remain in her father’s 1Magistrate 2Code 3Complainant H

Ahouse generally and occasionally she would come to Saanarpalayam.They have a daughter named Loganithya. It is also mentioned that hiswife filed a partition suit which was dismissed in view of compromisewhen his wife and daughter came to his house. But still, his wife used topick up quarrel every day. The daughter was admitted in P.K.P. SwamyMatriculation School, Kalanipuram but the wife did not permit the daughterBto write examination and left for Ellapayalayam. His mother-in-law,father-in-law and brother-in-law threatened that their daughter will notlive with him and demanded Rs. 30 lakhs towards maintenance otherwisethey will lodge a dowry case against him and his mother.

4. On 05.05.2011 at about 11.00 AM, when he was in the house atCNanjappangoundanur, his father-in-law Ramalingam, mother-in-lawLakshmi, brother-in-law Senthilkumar, wife Thangamani and otherrelatives (15 women and 35 men) came by vehicles namely Maruti Vanbearing Registration No. TN-33-AS-5695, TATA ACE TN-33-AT-4640and TATA 407 TAE-9996 and forcibly entered his house and scoldedDhim. The men folk were having weapons like crowbar, knife and ripperetc. They demanded Rs. 30 lakhs towards maintenance. One of thepersons in the group exhorted them not to talk but to kill. The personscame running towards them with sickles and sticks. All the accusedshouted to lock the house and took away turmeric bundles in the tempovan.E

5. On the basis of such FIR, the Investigating Officer recordedthe statement of Complainant on 29.05.2011. But none of the appellantsin the present appeal were referred to in the said statement. Even in thestatements of other witnesses associated during the course ofinvestigation, names of the appellants were not disclosed as the personsFwho were part of the group, said to have assaulted the Complainant andtrespassed into his house. After completion of investigation, report underSection 173 of the Code was filed against 11 accused on 09.11.2011.

6. The Complainant filed application before the learned trial courtfor further investigations under Section 173(8) of the Code. Such requestGwas resisted by the accused inter alia on the ground that the futureinvestigations can be sought only by the Investigating Officer and not bythe Complainant. Such application was dismissed on 30.07.2013.Thereafter, the Complainant appeared as PW1 on 26.12.2013 disclosingthe names of the appellants as part of the group who barged into his H

house and also attacked him. The prosecution also examined PW2Loganayagi (mother of the Complainant), PW3 Murugaiyan and PW4Jagadeesan (neighbours of the Complainant).

7. It is thereafter, an application was filed under Section 319 ofthe Code to summon the 20 accused persons named in the application asadditional accused. Such application was resisted inter alia on the groundthat similar relief claimed by the Complainant in Criminal O.P. No. 1680of 2012 filed before the High Court of Madras was dismissed on21.02.2012. Thereafter, the Complainant has filed a petition under Section173 (8) of the Code which was dismissed on 30.07.2013. It is also pointedout that names of the proposed accused were not disclosed in the FirstInformation Report nor came to light during investigation. It is on thesaid basis the learned Magistrate passed an order on 27.02.2015 decliningto summon the appellants as additional accused.

8. The learned trial court found that the proposed accused arefrom different villages and that how the public prosecutor has given thefathers’ name and addresses of the 20 proposed accused has not beendisclosed. It was held as under:

“6…. Also in the complaint itself the 11 members whose namewas in the final order and other 15 ladies and 35 men and 3 vehiclesand two wheelers have been mentioned. Based on that underSection 147, 448, 294(b), 506(2) the final order has been produced.Also there is no complaint regarding stealing of turmeric bundles.Only on 11 members the final report has been produced. Totally6 witnesses along with the petitioner has been enquired. In alltheir statements only those 11 members names were mentioned.So till the date of submission of final report, no details or informationregarding the other 20 members have been found.

7…. Also under Section 319 of Cr.PC when the case is underprogress and a person is accused with proper evidence or witnessthe court can order to add the person to the accused list and orderto arrest the person and enquiry. But in order to add a person asan accused in a case just stating the name and details of the personis not enough, but what crime he has committed has to be mentioneddefinitely. Based on doubt the court cannot add the person in theaccused list.”

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A9. The said order was challenged by the Complainant by way of aRevision Petition before the High Court. The High Court accepted theRevision Petition, inter-alia, holding as under:

“8. During trial, the defacto complainant /P.W.1, categorically statedthat apart from the 11 named accused persons shown in C.C. No.B123 of 2011, 20 other persons also involved in the offence and heclearly named all the 20 more persons. P.W.2 has stated that alongwith 11 named persons, 20 more persons also came to the sceneof occurrence however, she did not mention their names. P.W.3has stated that other than the accused persons, 5 other personsalso came to the scene of occurrence however, he has not statedCtheir names. P.W.4 has mentioned some of the names of thepersons who committed offence.

9. From the evidence of P.Ws. 1 to 4, it is very clear that apartfrom the 11 named accused, some other persons also committedoffence and the District Munsif cum Judicial Magistrate,DKodumudi, failed to consider the evidence and also the scope ofSection 319 Cr.PC. Hence, apart from the present accused personsin C.C. No. 123 of 2011, 20 more persons /proposed accused alsoinvolved in the case and hence, they have to be arrayed as accused.Under these circumstances, the judgment in (2017) 4 SupremeECourt Cases 177, Amrutbhai Shambhubhai Patel vs. SumanbhaiKantibhai Patel and others upon which reliance has been placedby the learned counsel for the respondents is not applicable to thefacts of the present case.”

10. Learned counsel for the appellants relies upon a ConstitutionFBench judgment of this Court in Hardeep Singh v. State of Punjab[4] tocontend that satisfaction required to invoke the power under Section319 of the Code to arraign an accused is to be exercised sparingly andonly in those cases where the circumstances of the case so warrant. Itis only where strong and cogent evidence occurs against a person fromthe evidence laid before the court, such power should be exercised andGnot in a casual and cavalier manner. The Court held as under:

“105. Power under Section 319 CrPC is a discretionary and anextraordinary power. It is to be exercised sparingly and only inthose cases where the circumstances of the case so warrant. It is H4(2014) 3 SCC 92

not to be exercised because the Magistrate or the Sessions Judgeis of the opinion that some other person may also be guilty ofcommitting that offence. Only where strong and cogent evidenceoccurs against a person from the evidence led before the courtthat such power should be exercised and not in a casual and cavaliermanner.

106. Thus, we hold that though only a prima facie case is to beestablished from the evidence led before the court, not necessarilytested on the anvil of cross-examination, it requires much strongerevidence than mere probability of his complicity. The test that hasto be applied is one which is more than prima facie case asexercised at the time of framing of charge, but short of satisfactionto an extent that the evidence, if goes unrebutted, would lead toconviction. In the absence of such satisfaction, the court shouldrefrain from exercising power under Section 319 CrPC. In Section319 CrPC the purpose of providing if “it appears from the evidencethat any person not being the accused has committed any offence”is clear from the words “for which such person could be triedtogether with the accused”. The words used are not “for whichsuch person could be convicted”. There is, therefore, no scopefor the court acting under Section 319 CrPC to form any opinionas to the guilt of the accused.”

11. Learned counsel for the appellants also refers to a recentorder of this Court in Labhuji Amratji Thakor & Ors. v. The Stateof Gujarat & Anr.[5], where, the order of summoning the additionalaccused on the basis of the statements of some of the witnesses inwitness box was set aside for the reason that there is not even suggestionof any act done by the appellants amounting to an offence under Sections3 and 4 of the Protection of Children from Sexual Offences Act, 2012.It was held as under:

“….The Court has to consider substance of the evidence, whichhas come before it and as laid down by the Constitution Bench inHardeep Singh (supra) has to apply the test, i.e., “more than primafacie case as exercised at the time of framing of charge, but shortof satisfaction to an extent that the evidence, if goes unrebutted,would lead to conviction”.…”

5Criminal Appeal No. 1349 of 2018, decided on 13.11.2018

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A12. We have heard learned counsel for the parties and find thatthe order passed by the High Court is not sustainable in law. The presentcase is basically a matrimonial dispute wherein, the husband who is theComplainant has levelled allegations against the wife and her other familymembers. Though in the FIR, Complainant has mentioned that 15 womenand 35 men came by vehicles but the names of 11 persons alone wereBdisclosed in the First Information Report.

13. In the statements recorded under Section 161 of the Codeduring the course of investigation, the Complainant and his witnesseshave not disclosed any other name except the 11 persons named in theFIR. Thus, the Complainant has sought to cast net wide so as to includeCnumerous other persons while moving an application under Section 319of the Code without there being primary evidence about their role inhouse trespass or of threatening the Complainant. Large number ofpeople will not come to the house of the Complainant and would returnwithout causing any injury as they were said to be armed with weaponsDlike crowbar, knife and ripper etc.

14. In the First Information Report or in the statements recordedunder Section 161 of the Code, the names of the appellants or any otherdescription have not been given so as to identify them. The allegationsin the FIR are vague and can be used any time to include any person inEthe absence of description in the First Information Report to identifysuch person. There is no assertion in respect of the villages to which theadditional accused belong. Therefore, there is no strong or cogentevidence to make the appellants stand the trial for the offences underSections 147, 448, 294(b) and 506 of IPC in view of the judgment inHardeep Singh case (supra). The additional accused cannot beFsummoned under Section 319 of the Code in casual and cavalier mannerin the absence of strong and cogent evidence. Under Section 319 of theCode additional accused can be summoned only if there is more thanprima facie case as is required at the time of framing of charge butwhich is less than the satisfaction required at the time of conclusion ofGthe trial convicting the accused.

15. The High Court has set aside the order passed by the learnedMagistrate only on the basis of the statements of some of the witnessesexamined by the Complainant. Mere disclosing the names of the appellantscannot be said to be strong and cogent evidence to make them to standHtrial for the offence under Section 319 of the Code, especially when the Complainant is a husband and has initiated criminal proceedings againstfamily of his in-laws and when their names or other identity were notdisclosed at the first opportunity.

16. Consequently, the order passed by the learned High Court isset aside and that of the trial court is restored and the application underSection 319 of the Code is dismissed. The appeal is allowed.

Nidhi Jain

Appeal allowed.

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