Periyasamy vs S. Nallasamy

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 2 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.

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.

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.