Madras High Court
Ramasamy @ Ramar vs The Inspector Of Police
Author: D.Nagarjun
Bench: D.Nagarjun
Crl.O.P.(MD)No.14532 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 01.09.2023
Delivered on .09.2023
CORAM
THE HON'BLE DR.JUSTICE D.NAGARJUN
Crl.O.P.(MD)No.14532 of 2023
and Crl.M.P.(MD) No.11440 of 2023
1.Ramasamy @ Ramar
2.Mayakannan @ Kannan
3.Meenakshi
4.Thirupathi Ammal @ Thiruppathi
5.Selvam @ Selvakumar ... Petitioners/
Accused Nos. 2,3,4,8,&10
Vs.
1. The Inspector of Police,
Sattur Town Police Station,
Sattur, Virudhunagar District.
Crime No.598 of 2020.
2. Shanmugapriya ... Respondents
PRAYER : Criminal Original Petition filed under Section 482 of
Criminal Procedure Code, to quash the charge sheet filed by the first
respondent police in P.R.C.No.13 of 2023 on the file of the Judicial
Magistrate No.2, Sattur, Virudhunagar District.
For Petitioners : Mr.N.Pragalathan
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Crl.O.P.(MD)No.14532 of 2023
For Respondents : Mr.SS.Madhavan
Government Advocate (Crl. Side)
for R1
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ORDER
The petitioners have filed this petition seeking quashment of charge sheet in P.R.C.No.13 of 2023 registered for the offences under Sections 147, 148, 294(b), 323, 341, 354, 326, 307 and 506(ii) of IPC on the ground that both case and counter case have been charged by the police.
2. As per the charge sheet, on 01.12.2020 at about 3:15 p.m., Accused No.1 asked the defacto complainant to meet him at his house. Accordingly, the defacto complainant went to the house of A.1 where all the accused assaulted her with stone, wooden log and iron rod etc. Originally, on a complaint given by her, the police registered CSR.No. 274/2020 on 08.12.2020.
3. Similarly, on a complaint given by the petitioners, a case has been registered in Crime No.597 of 2020 for the offences punishable 2/12 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14532 of 2023 under Sections 147,294(b), 323, 324, 506(ii) of IPC and Section 4 of the Tamilnadu Prohibition of Harassment of Women Act and charge sheet is filed against the defacto complainant and the same was taken on file in C.C.No.485 of 2022.
4. According to the learned counsel for the petitioners, as per standing order POS No.566 (2) of the Tamil Nadu Police Standing Orders, in case if a complaint and counter complaint are filed in respect of transaction, the same Investigation Officer shall investigate both of the offences and either to charge the accused who are aggressors or refer both of them as untrue.
5. POS No.566(2) of the Police Standing Orders runs as under:-
“(2) Charge-sheets in cases and counter cases.—In a complaint and counter complaint obviously arising out of the same transaction, the investigating officer should enquire into both of them and adopt one or the other of the two courses viz., (1) to charge the case where the accused were the aggressors or (2) to refer both the cases if he should find them untrue. He should place before the court a definite case which he asks it to accept. The in - vestigating 3/12 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14532 of 2023 officer in such cases should not accept into one complaint and examine only witnesses who support it and give no explanation at all for the injuries caused to the other side. It is his duty to exhibit the counter-complaint in the court and also to prove medical certificates of persons wounded on the opposite side. The truth in these cases is invariably not in strict conformity with either complaint and it is quite necessary that all the facts are placed before the court to enable it to arrive at the truth and a just decision.”
6. The Police Standing Orders clearly makes out the procedure to be followed by the Investigation Officer when two cases have been registered, out of one transaction, the police have to identify who is aggressor and after identifying the aggressor, a case has to be registered against the aggressor and close the case against those who is not an aggressor. In case if the Investigation Officer cannot determine as to who is the aggressor, then both the cases have to be closed. Typically, in this kind of incident, on account of rioting and other related aggravated offences, both the parties will receive injuries. If two FIRs which are registered in respect of one incident as a case and counter case, both the offences have to be investigated by a single Investigation Officer, thereby he will decide as to which one of them was aggressive and which 4/12 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14532 of 2023 one of them is recessive.
7. Law is also very much settled, this Court while allowing Crl.O.P.33146 of 2021, dated 05.06.2023, has held as follows:-
“8.In the instant case, the said procedure has been violated. This Court in Vellapandy Thevar and Others Vs. State rep.by the Inspector of Police, Alangulam Police Station, Tirunelveli Dt., reported in [1984 LW (Crl.) 257] had held as follows:
4. This is a case of complaint and counter complaint. On the complaint given by Tmt. Ramasundaram in Cr. No. 64 of 1982, the Inspector of Police has filed a charge sheet in S.C. 132 of 1983 for offences under Sections 147, 148, 427, 324 and 302, Indian Penal Code against the Petitioners in Crl. M.P. 5503 of 1984. In respect of the same incident, Tmt. Thangathai has given a complaint in Crime No. 65 of 1983 and the Inspector of Police has filed a charge -sheet in respect thereof against the Petitioners in Crl. M.P. 4437 of 1983, under Sections 147, 148, 427, 337 and 307, Indian Penal Code now pending in S.C. 151 of 1983 on the file of the Assistant Sessions Judge. Tenkasi. In cases of complaints and counter complaints, the procedure to be followed by the Investigating Officer is laid down in Order 588 -A of the Madras Police Standing Orders, which is as 5/12 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14532 of 2023 follows:
“588 -A. Charge sheets in cases and counter cases: In a complaint and counter complaint obviously arising out of the same transaction the investigating officer should enquire into both of them and adopt one or the other of the two courses, viz, (1) to charge the case where the accused were the aggressors or (2) to refer both the cases if he should find them untrue. When the investigating officer proceeds on the basis of the complaint it is his duty to exhibit the counter complaint in the court and also to prove medical certificates of persons wounded on the opposite side. He should place before court a definite case which he makes it to accept. The investigating officer in such cases should not accept in to do one complaint and examine only witnesses who support it and give no explanation at all for the injuries caused to the other side. The truth in these cases is invariably not in strict conformity with either complaint and it is quite "necessary that all the facts are placed before the court to enable it to arrive at the truth and a just decision.
If the investigating officer finds that the choice of either course is difficult, viz, to charge one of the two cases or to throw out both, he should seek the opinion of the Public Prosecutor of the District and act accordingly. A final report should be sent in respect of the case referred as 6/12 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14532 of 2023 mistake of law and the complainant or the counter complaint, as the case may be should be advised about the disposal by a notice in P. 96 and to seek remedy before the specified magistrate, if he is aggrieved by the disposal of the same by the police”.
The investigating officer has to enquire into both the complaints, find out who were the aggressors and file a charge sheet against them or refer both the cases if he finds them untrue. Where the investigating officer finds it difficult to choose either of the above courses, he should seek the opinion of the Public Prosecutor and act accordingly. In the instant case, the Inspector of Police has referred the matter to the Public Prosecutor and the Public Prosecutor has advised the filing of the charge sheet only against the Petitioners in Crl. M.P. 5503 of 1984, and not against the Petitioners in Crl. M.P. 4057 of 1983. But the Inspector of Police has not acted according to the opinion of the Public Prosecutor and filed a charge sheet against both the groups. This is certainly not in accord with Order 538 -A of the Madras Police Standing Orders. The investigating officer ought to have filed the charge sheet Only in Crl. No. 64 of 1982 against the Petitioners in Crl. M.P. 5503 of 1684, which is now pending in the court of the II Additional Sessions Judge, Tirunelveli in S.C. 132 of 1983 for offences under Sections 147, 148, 427, 324 and 302 Indian Penal Code and must have referred the complaint given by Thangathai registered in Cr. No. 69 of 1982, instead of 7/12 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14532 of 2023 filing another charge sheet in the said crime number against the Petitioners in Cr. M.P. 4437 of 1983, which is now pending in the court of the Assistant Sessions Judge, Tenkasi in S.C. 151 of 1983, for offences under Sections 147, 148, 427, 337, and 307, Indian Penal Code The investigating officer has evidently contravened the express provision of the Order 588 -A which lays down that in the case of doubt he ought to refer the matter to the opinion of the Public Prosecutor and act accordingly. The investigating officer has referred the matter to the opinion of the Public Prosecutor, but has failed to act accordingly. The result is there are now two Prosecutions in respect of the same matter against the opposite parties.;
5.As pointed out by this Court in Thota Ramakrishna and others .Vs. State.
“It is improper for the police to prosecute the same time two counter cases in regard to the same occurrence one of which must be false. It is improper also and disrespectful to the court for the Public Prosecutor to conduct both cases in the sessions court knowing that one must be false. Such counter cases cannot both the prosecuted honestly either by the police or the public prosecutor”
9.This Court finds that there are two final reports, which are contrary to each other and serious prejudice is likely to be caused to both the parties. Therefore, this Court is of the view, for all the above reasons that both the 8/12 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14532 of 2023 impugned final reports in S.T.C.No.94 of 2019 and C.C.No. 20 of 2019 on the file of the District Munsif Cum Judicial Magistrate Court, Bhuvanagiri, are liable to be quashed, as there cannot be two final reports giving contrary versions for the same incident. Accordingly, this Criminal Original Petitions are allowed. Consequently, connected Criminal Miscellaneous Petitions closed.”
8. In the case on hand, P.R.C.No.13 of 2023 which is now the subject matter of this petition is investigated by Sugumar, Packiaraj and Chellapandi are shown as witnesses 33, 34 and 35 respectively. The petitioner No.1 has filed complaint on 03.12.2020 and same was registered in FIR No.597 of 2020 for the offences under Sections 147,294(b), 323, 324, 506(ii) of IPC and Section 4 of the Tamilnadu Prohibition of Harassment of Women Act and charge sheet has filed in C.C.No.498 of 2022. As per the charge sheet, investigation was done by Syed Ibrahim and Navaneetha Krishnan whose names are shown as witnesses 19 and 20.
9. It is settled legal position that in case and counter cases are registered in respect of investigation arising out of same incident, both 9/12 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14532 of 2023 the cases have to be investigated by same Investigating Officer. In the case on hand, admittedly, P.R.C.No.13 of 2023 and C.C.No.498 of 2022 are arising out of a same transaction, therefore both of the cases should have been investigated by same Investigating Officer so that he would be identified as to who is aggressor. However, both the cases have not been investigated by same Investigating Officer but by separate Investigating Officers. If separate Investigating Officers have investigated the earlier one, they would have seen each of the complaints separately ignoring the counter case. Accordingly, P.R.C.No.13 of 2023 is liable to be quashed.
10. In the result, this criminal original petition is allowed and all the further proceedings in P.R.C.No.13 of 2023 pending on the file of the learned Judicial Magistrate No.2, Sattur, Virudhunagar District are hereby quashed. Consequently, the connected miscellaneous petition is closed.
.09.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
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Crl.O.P.(MD)No.14532 of 2023
PKN/mvs.
To
1. The Inspector of Police,
Sattur Town Police Station,
Sattur, Virudhunagar District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)No.14532 of 2023
DR.D.NAGARJUN,J
PKN/mvs.
Pre-delivery order made in
Crl.O.P.(MD)No.14532 of 2023
Dated: .09.2023
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