REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 456 OF 2019 (Arising out of S.L.P (Crl.) No. 208 of 2019)

PERIYASAMI AND ORS.           ........APPELLANTS   

             Versus

S. NALLASAMY                    ........RESPONDENT

J U D G M E N T

Hemant Gupta, J.

The present appeal is directed against an order passed by the

High Court of Judicature at Madras on 28.08.2018 whereby an order

passed by the District Munsif cum Judicial Magistrate1 on 27.02.2015

dismissing an application under Section 319 of the Code of Criminal

Procedure, 19732 was set aside and the appellants were ordered to be

impleaded as accused and to be proceeded against in accordance

with law.  

1 Magistrate 2 Code

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2. A First Information Report for the offences under Sections 147,

448,  294(b)  and  506  of  IPC  was  registered  on  29.05.2011  in

pursuance  of  an  order  passed  by  the  High  Court  of  Judicature  at

Madras on 26.05.2011 in a writ petition filed by S. Nallasamy3 giving

direction to register the First Information Report.   

3. The Complainant married to Thangamani in the year 1998. It is

alleged that the wife of the Complainant would remain in her father’s

house generally and occasionally she would come to Saanarpalayam.

They have a daughter named Loganithya.  It is also mentioned that

his  wife  filed  a  partition  suit  which  was  dismissed  in  view  of

compromise when his wife and daughter came to his house. But still,

his  wife  used  to  pick  up  quarrel  every  day.  The  daughter  was

admitted in P.K.P. Swamy Matriculation School, Kalanipuram but the

wife did not permit  the daughter to write examination and left  for

Ellapayalayam.   His  mother-in-law,  father-in-law  and  brother-in-law

threatened that their daughter will not live with him and demanded

Rs. 30 lakhs towards maintenance otherwise they 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 at

Nanjappangoundanur,  his  father-in-law  Ramalingam,  mother-in-law

Lakshmi,  brother-in-law  Senthilkumar,  wife  Thangamani  and  other

relatives (15 women and 35 men) came by vehicles namely Maruti

Van bearing Registration No. TN-33-AS-5695, TATA ACE TN-33-AT-4640

and TATA 407 TAE-9996 and forcibly entered his house and scolded

3 Complainant

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him. The men folk were having weapons like crowbar, knife and ripper

etc.  They demanded Rs. 30 lakhs towards maintenance.  One of the

persons  in  the  group  exhorted  them  not  to  talk  but  to  kill.  The

persons came running towards them with sickles and sticks. All the

accused shouted to lock the house and took away turmeric bundles in

the tempo van.  

5. On the basis of such FIR, the Investigating Officer recorded the

statement of Complainant on 29.05.2011. But none of the appellants

in the present appeal were referred to in the said statement.  Even in

the statements of  other witnesses associated during the course of

investigation,  names  of  the  appellants  were  not  disclosed  as  the

persons  who  were  part  of  the  group,  said  to  have  assaulted  the

Complainant  and  trespassed  into  his  house.   After  completion  of

investigation, report under Section 173 of the Code was filed against

11 accused on 09.11.2011.  

6. The Complainant filed application before the learned trial court

for  further  investigations  under  Section  173(8)  of  the  Code.  Such

request was resisted by the accused inter alia on the ground that the

future investigations can be sought only by the Investigating Officer

and  not  by  the  Complainant.  Such  application  was  dismissed  on

30.07.2013.  Thereafter,  the  Complainant  appeared  as  PW1  on

26.12.2013  disclosing  the  names  of  the  appellants  as  part  of  the

group  who  barged  into  his  house  and  also  attacked  him.   The

prosecution  also  examined  PW2  Loganayagi  (mother  of  the

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Complainant), PW3 Murugaiyan and PW4 Jagadeesan (neighbours of

the Complainant).   

7. It is thereafter, an application was filed under Section 319 of

the  Code  to  summon  the  20  accused  persons  named  in  the

application as additional accused. Such application was resisted inter

alia on the ground that similar relief claimed by the Complainant in

Criminal O.P. No. 1680 of 2012 filed before the High Court of Madras

was dismissed on 21.02.2012. Thereafter, the Complainant has filed a

petition under Section 173 (8) of the Code which was dismissed on

30.07.2013. It is also pointed out that names of the proposed accused

were not disclosed in the First Information Report nor came to light

during investigation.  It is on the said basis the learned Magistrate

passed an order on 27.02.2015 declining to summon the appellants

as additional accused.  

8. The learned trial  court  found that  the  proposed accused are

from different villages and that how the public prosecutor has given

the fathers’ name and addresses of the 20 proposed accused has not

been disclosed.  It was held as under:  

“6…. Also in the complaint itself the 11 members whose name was in the final order and other 15 ladies and 35 men  and  3  vehicles  and  two  wheelers  have  been mentioned.   Based  on  that  under  Section  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.  Totally 6 witnesses along with the petitioner has been enquired. In all their statements only those 11 members names were mentioned.  So till  the date of submission  of  final  report,  no  details  or  information regarding the other 20 members have been found.

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7…. Also under Section 319 of Cr.PC when the case is under  progress  and  a  person  is  accused with  proper evidence  or  witness  the  court  can  order  to  add  the person  to  the  accused  list  and  order  to  arrest  the person and enquiry. But in order to add a person as an accused in a case just stating the name and details of the  person  is  not  enough,  but  what  crime  he  has committed  has  to  be  mentioned  definitely.  Based  on doubt the court cannot add the person in the accused list.”

9. The said order was challenged by the Complainant by way of a

Revision Petition before the High Court.  The High Court accepted the

Revision Petition, inter-alia, holding as under:  

“8. During  trial,  the  defacto  complainant  /P.W.1, categorically  stated  that  apart  from  the  11  named accused persons  shown  in  C.C.  No.  123  of  2011,  20 other  persons  also  involved  in  the  offence  and  he clearly named all the 20 more persons. P.W.2 has stated that  along with  11 named persons,  20 more persons also came to the scene of occurrence however, she did not mention their names.  P.W.3 has stated that other than the accused persons, 5 other persons also came to the  scene  of  occurrence  however,  he  has  not  stated their names. P.W.4 has mentioned some of the names of the persons who committed offence.  

9. From the evidence of P.Ws. 1 to 4, it is very clear that apart from the 11 named accused, some other persons also  committed  offence  and  the  District  Munsif  cum Judicial  Magistrate,  Kodumudi,  failed  to  consider  the evidence  and  also  the  scope  of  Section  319  Cr.PC. Hence, apart from the present accused persons in C.C. No. 123 of 2011, 20 more persons /proposed accused also involved in the case and hence, they have to be arrayed  as  accused.  Under  these  circumstances,  the judgment  in  (2017)  4  Supreme  Court  Cases  177, Amrutbhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel and others upon which reliance has been placed by  the  learned  counsel  for  the  respondents  is  not applicable to the facts of the present case.”

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10. Learned counsel  for  the appellants relies upon a Constitution

Bench judgment of this Court in Hardeep Singh v. State of Punjab4

to  contend  that  satisfaction  required  to  invoke  the  power  under

Section  319 of  the Code to arraign an accused is  to  be exercised

sparingly and only in those cases where the circumstances of the case

so  warrant.  It  is  only  where  strong  and  cogent  evidence  occurs

against a person from the evidence laid before the court, such power

should be exercised and not  in a casual  and cavalier  manner.  The

Court held as under:

“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  “for which  such  person  could  be  tried  together  with  the accused”.  The  words  used  are  not  “for  which  such person  could  be  convicted”.  There  is,  therefore,  no

4 (2014) 3 SCC 92

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scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.”

11. Learned counsel for the appellants also refers to a recent order

of this Court in  Labhuji Amratji Thakor & Ors. v. The State of

Gujarat  &  Anr.5, where,  the  order  of  summoning  the  additional

accused on the basis of the statements of some of the witnesses in

witness  box  was  set  aside  for  the  reason  that  there  is  not  even

suggestion of any act done by the appellants amounting to an offence

under  Sections  3  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, which has come before it and as laid down by the Constitution Bench in Hardeep Singh (supra) has to apply  the  test,  i.e.,  “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”.…”

12. We have heard learned counsel for the parties and find that the

order passed by the High Court is not sustainable in law. The present

case is basically a matrimonial dispute wherein, the husband who is

the  Complainant  has  levelled  allegations  against  the  wife  and  her

other family members. Though in the FIR, Complainant has mentioned

that 15 women and 35 men came by vehicles but the names of 11

persons alone were disclosed in the First Information Report.  

13. In  the  statements  recorded  under  Section  161  of  the  Code

during the course of investigation, the Complainant and his witnesses

have not disclosed any other name except the 11 persons named in

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

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the FIR.  Thus, the Complainant has sought to cast net wide so as to

include numerous other persons while moving an application under

Section 319 of the Code without there being primary evidence about

their role in house trespass or of threatening the Complainant.  Large

number of people will not come to the house of the Complainant and

would  return  without  causing  any  injury  as  they  were  said  to  be

armed with weapons like crowbar, knife and ripper etc.  

14. In the First  Information Report  or  in the statements recorded

under Section 161 of the Code, the names of the appellants or any

other description have not been given so as to identify them.  The

allegations in the FIR are vague and can be used any time to include

any  person  in  the  absence  of  description  in  the  First  Information

Report to identify such person.   There is no assertion in respect of the

villages to which the additional accused belong.   Therefore, there is

no strong or cogent evidence to make the appellants stand the trial

for the offences under Sections 147, 448, 294(b) and 506 of IPC in

view  of  the  judgment  in  Hardeep  Singh  case  (supra).    The

additional  accused cannot be summoned under Section 319 of the

Code in  casual  and cavalier  manner in  the absence of  strong and

cogent evidence. Under Section 319 of the Code additional accused

can be summoned only if there is more than prima facie case as is

required at the time of framing of charge but which is less than the

satisfaction required at the time of conclusion of the trial convicting

the accused.  

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15. The High Court has set aside the order passed by the learned

Magistrate  only  on  the  basis  of  the  statements  of  some  of  the

witnesses examined by the Complainant. Mere disclosing the names

of the appellants cannot be said to be strong and cogent evidence to

make them to stand trial  for the offence under Section 319 of the

Code, especially when the Complainant is a husband and has initiated

criminal  proceedings  against  family  of  his  in-laws  and  when  their

names or other identity were not disclosed at the first opportunity.   

16. Consequently, the order passed by the learned High Court is set

aside and that of the trial court is restored and the application under

Section 319 of the Code is dismissed. The appeal is allowed.

….…………..........................J.  (Dr. Dhananjaya Y. Chandrachud)

…………….................................J.    (Hemant Gupta)

New Delhi, March 14, 2019.

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