IMPORTANT POINT
When only 11 accused persons are named in the FIR and in statement u/s 161, additional persons cannot be summoned in absence of any primary evidence about their role in the crime.

JUDGMENT

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 Magistrate [Magistrate] on 27.02.2015 dismissing an application under Section 319 of the Code of Criminal Procedure, 1973 [Code] was set aside and the appellants were ordered to be impleaded as accused and to be proceeded against in accordance with law.

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. Nallasamy [Complainant] 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 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 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 w