PERIYASAMI AND ORS.versusS. NALLASAMY

                        [2019] 2 S.C.R. 1005                            1005


                    PERIYASAMI AND ORS.                                 A
                                 v.
                         S. NALLASAMY
                 (Criminal Appeal No. 456 of 2019)
                       MARCH 14, 2019                                   B
       [DR. DHANANJAYA Y CHANDRACHUD AND
                   HEMANT GUPTA, JJ.]
      Code of Criminal Procedure, 1973:
      s. 319 – Power to proceed against other persons appearing
                                                                        C
to be guilty of offence – Application u/s. 319, to summon accused
named in the application as additional accused – Rejected by the
magistrate, however, allowed by the High Court – On appeal, held:
U/s. 319 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         D
conclusion of the trial convicting the accused – On facts, in FIR or
in the statements recorded u/s. 161, the names of the appellants or
any other description not given so as to identify them – Allegations
in the FIR are vague – No strong or cogent evidence to make the
appellants stand the trial for the offences u/ss 147, 448, 294(b)
                                                                        E
and 506 IPC – Additional accused cannot be summoned u/s. 319 in
casual and cavalier manner in the absence of strong and cogent
evidence – Thus, the High Court erred in setting aside the order
passed by the magistrate only on the basis of the statements of some
of the witnesses examined by the complainant – Order passed by
the High Court set aside and that of the trial court is restored.       F
      Allowing the appeal, the Court
      HELD: 1.1 The instant 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, the complainant has mentioned that 15 women and 35          G
men came by vehicles but the names of 11 persons alone were
disclosed in the FIR. [Para 12][1012-A-B]
      1.2 In the statements recorded under Section 161 of the
Code of Criminal Procedure, during the course of investigation,
the complainant and his witnesses have not disclosed any other          H
                             1005
1006                SUPREME COURT REPORTS                   [2019] 2 S.C.R.


 A     name except the 11 persons named in 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
 B
       and would return without causing any injury as they were said to
       be armed with weapons like crowbar, knife and ripper etc.
       [Para 13][1012-C-D]
             1.3 In the First Information Report or in the statements
       recorded under Section 161 of the Code, the names of the
 C     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
 D     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 IPC. 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
 E     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. [Para 14][1012-E-G]
             1.4 The High Court set aside the order passed by the
 F     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
 G     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. The order passed by the High Court is
       not sustainable in law and is set aside and that of the trial court is
       restored and the application under Section 319 of the Code is
       dismissed. [Paras 15, 16][1012-G, H; 1013-A, B]
 H
            PERIYASAMI AND ORS. v. S. NALLASAMY                               1007


       Hardeep Singh v. State of Punjab (2014) 3 SCC 92                       A
       : [2014] 2 SCR 1 – relied on.
       Labhuji Amratji Thakor & Ors. v. The State of
       Gujarat & Anr. 2019 AIR 734 - referred to.
                         Case Law Reference
                                                                              B
[2014] 2 SCR 1                    relied on                 Para 10
2019 AIR 734                      referred to               Para 11
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 456 of 2019.
                                                                              C
      From the Judgment and Order dated 28.08.2018 of the High Court
of Judicature at Madras in Criminal R.C. No. 346 of 2015.
     S. Nagamuthu, Sr. Adv., M. P. Parthiban, A. S. Vairawan, R.
Sudhakaran, Advs. for the Appellants.
      M. A. Chinnasamy, Ms. C. Rubavathi, Ms. Leela Sarveshwar, S.            D
Peer Mohammad, P. Raja Ram, Advs. for the Respondent.
       The Judgment of the Court was delivered by
       HEMANT GUPTA, J.
      1. The present appeal is directed against an order passed by the        E
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.                                                                          F
       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.                                        G
      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
1
  Magistrate
2
  Code
3
  Complainant                                                                 H
1008                SUPREME COURT REPORTS                      [2019] 2 S.C.R.


 A     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
 B
       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
 C     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
 D     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.
 E
              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
 F     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
 G     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
 H
          PERIYASAMI AND ORS. v. S. NALLASAMY                                     1009
                  [HEMANT GUPTA, J.]

house and also attacked him. The prosecution also examined PW2                    A
Loganayagi (mother of the 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        B
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            C
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
                                                                                  D
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                   E
      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.
                                                                                  F
      So till the date of submission of final report, no details or information
      regarding the other 20 members have been found.
      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         G
      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.”
                                                                                  H
1010                    SUPREME COURT REPORTS                       [2019] 2 S.C.R.


 A           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.
 B               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
 C               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,
 D               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
 E               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.”
              10. Learned counsel for the appellants relies upon a Constitution
 F     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
 G     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
       4
 H         (2014) 3 SCC 92
               PERIYASAMI AND ORS. v. S. NALLASAMY                                1011
                       [HEMANT GUPTA, J.]

          not to be exercised because the Magistrate or the Sessions Judge        A
          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.
                                                                                  B
          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   C
          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”        D
          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 scope
          for the court acting under Section 319 CrPC to form any opinion
          as to the guilt of the accused.”
                                                                                  E
       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          F
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     G
          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”.…”

5
    Criminal Appeal No. 1349 of 2018, decided on 13.11.2018                       H
1012                SUPREME COURT REPORTS                      [2019] 2 S.C.R.


 A            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
 B
       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 the
       FIR. Thus, the Complainant has sought to cast net wide so as to include
 C     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
 D     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
 E     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
 F     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
 G     the trial convicting the accused.
               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
 H     trial for the offence under Section 319 of the Code, especially when the
             PERIYASAMI AND ORS. v. S. NALLASAMY                               1013
                     [HEMANT GUPTA, J.]

Complainant is a husband and has initiated criminal proceedings against        A
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.                   B

Nidhi Jain                                                   Appeal allowed.




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