Bombay High Court
Bhaurao S/O Diwan Bhaisare vs State Of Maharashtra Thr Pso Bhandara ... on 12 November, 2025
Author: Anil Laxman Pansare
Bench: Anil Laxman Pansare
2025:BHC-NAG:11970-DB
1 927-Cri.WP-677-25.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR.
CRIMINAL WRIT PETITION NO.677 OF 2025
Bhaurao S/o Diwan Bhaisare, Subbhash Ward, Bela, Bhandara
vs.
State of Maharashtra, Thr. PSO, Bhandara, Tah. And Dist. Bhandara and ors.
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri Aradhya Vinayak Pande, Advocate for petitioner.
Shri A. B. Badar, Addl. Public Prosecutor for respondent Nos.1 to 4 and 6.
Shri S. K. Sabahatullah, Advocate with Shri Syed Salman Ali, Advocate for
respondent No.5.
CORAM : ANIL L. PANSARE AND RAJ D. WAKODE, JJ.
DATED : 12th November, 2025
Heard.
2. The argument of petitioner is that same Investigating
Officer should have investigated both crimes. The argument is
so made because there occurred incidence on 21/01/2024 in
which the petitioner and respondent No.5 indulged into
allegation and counter allegation. The respondent No.5 alleged
outraging modesty by the petitioner, as against petitioner
alleged assault by respondent No.5 and unknown persons. Both
parties approached police on different dates.
3. The respondent No.5 lodged report on the same date i.e.
21/01/2024 which was registered as Crime No.70/2024 for the
offence punishable under Section 354, 354A and 506 of IPC.
The petitioner lodged report on 23/24-01-2024 which
was registered as Crime No.76/2024 for the offence punishable
2 927-Cri.WP-677-25.odt
under Sections 353, 323, 504, 506 r/w Section 34 of IPC.
4. Two different Investigating Officers were given
responsibility to investigate the crime. The Investigating Officer
who investigated Crime No.70/2024 filed charge-sheet against
the petitioner. We are informed that the trial has commenced.
The Investigating Officer in Crime No.76/2024 carried
investigation and filed N.C. Final Report No.06/2025 before the
Chief Judicial Magistrate, Bhandara stating that there is no
evidence to file charge-sheet against respondent No.5. We are
informed that report has been not yet accepted by the Chief
Judicial Magistrate.
5. The argument is that filing of closure report will vitiate
on the count that it was not investigated by the same
Investigating Officer.
6. On the point of investigation by same Investigating
Officer for one and the same incidence, the counsel for the
petitioner has relied upon the judgment of Karnataka High court
in Criminal Petition No.6248/2024 (Sri Gajendra K. M. and ors.
vs. State by Police Sub Inspector, Masthi, Police Station and
anr.) The relevant finding finds place in paragraph 10, which
reads as under :
" 10. The Apex Court in the case of State of M. P. v. Mishrilal
(Dead) and others, has held as follows:
" 6. For the sake of convenience we have devised to
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categorize the case under the following headings: (1) Cross
cases be tried together; (2) Genesis of occurrence; (3)
Presence of Accused Ashok Kumar at the place of incident;
(4) Common object; (5) Right of private defence; and (6)
Non- explanation of the injuries, sustained by the accused, by
the prosecution....
.......
8. In the instant case, it is undisputed, that the
investigating officer submitted the challan on the basis of the
complaint lodged by the accused Mishrilal in respect of the
same incident. It would have been just fair and proper to
decide both the cases together by the same court in view of
the guidelines devised by this Court in Nathi Lal case (1990
Supp SCC 145). The cross-cases should be tried together by
the same court irrespective of the nature of the offence
involved. The rational behind this is to avoid the conflicting
judgments over the same incident because if cross cases are
allowed to be tried by two courts separately there is
likelihood of conflicting judgments. In the instant case, the
investigating officer submitted the challan against both the
parties. Both the complaints cannot be said to be right. Either
one of them must be false. In such a situation, legal
obligation is cast upon the investigating officer to make an
endeavour to find out the truth and to cull out the truth from
the falsehood. Unfortunately, the investigating officer has
failed to discharge the obligation, resulting in grave
miscarriage of justice."
(Emphasis supplied)
The Apex Court observes that the Investigating
Officer submits challan on the basis of the complaint lodged
by two persons on the same incident. Two challans are
registered. The Apex Court observes that both the incidents
cannot be true. One of them must be false. Therefore, the
Apex Court observes that a same Investigating Officer must
investigate into a case and a counter case. The Apex Court
was following the judgment earlier rendered in the case of
Nathi Lal v. State of U.P. (supra). In between the judgment so
rendered by the Apex Court in Nathi Lal and Mishrilal
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(supra), the learned Judge of this Court had in the case of
Abdul Majid Sab and others vs. State of Karnataka by
Ripponpete Police, (ILR 2010 Kar 1719), had held as follows:
"26. In case and counter, in the final report of both
the cases, the I. O., has to necessarily furnish all the
documents pertaining to the other case and should explain
the genesis of the incident explaining whether it is a free fight
between two persons/groups and that both are aggressors.
The I. O. should state whether one of the persons/groups is
an aggressor and that whether the other has caused injuries
in exercise of the right of private defence. It is necessary that
the I. O. should explain the injuries on the accused. The final
report should necessarily contain the above material to
enable the prosecutors to lead evidence correctly and for the
Judge to understand the incident in a proper legal
perspective to understand the guilt of the accused.
27. It is well-settled principle in a case and a counter the
same I.O. should investigate both the cases and should file final
report. The different prosecutors should conduct prosecution; the
same Judge should try the cases simultaneously and render
separate judgments. It is a judicial dicta that the court should not
read/get influenced by the evidence recorded in the other case,
unless the said material in the other case is marked as an evidence
in the case in question. To say that the court should not
read/influenced by the evidence recorded in the other case under
all circumstances would be a perverse view and runs counter to the
logic of holding simultaneous investigation by the same I.O. and
trial by the same Judge. Otherwise, it is impossible for the Judge to
appreciate the guilt of the accused to find out whether both are
aggressors and both are guilty of indulging in free fight or one of
them is an aggressor and the other caused injuries on the accused
in exercise of right of private defence.
28. In this regard for useful benefit, the provisions of
Madras Police Standing Orders pertaining to investigation of
a case and a counter in Rule-588A are extracted hereunder:
588A : Charge sheets in cases and counter cases: In a
complaint and counter complaint obviously arising out of a
same transaction, the Investigation Officer should enquire
into both of them and adopt one or the other of the two
courses, namely, (1) to charge the case whether the accused
were the aggressors or (2) to refer both the cases if he should
find them untrue. When the Investigating Officer proceeds
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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 sides. He
should place before the Court a definite case which he asks it
to accept. The Investigating Officer in such cases should not
accept in to one complaint and examine only witnesses who
support it and give no explanations 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 Investigation Officer finds that choice of either
of the 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 mistake of
law and the complainant or the counter-complainant, as the
case may be, should be advised about the disposal by a notice
in Form 96 and to seek remedy before the specified
Magistrate if he is aggrieved by the disposal of the case by the
Police.
29. We place on record that we have not come across
any single case so far where the final reports in case and
counter are filed in the manner indicated above. The
imprudent and casual practice of submitting final reports
without reference to the relevant material of the connected
case would only result in improper prosecution and many a
time the truth of the incident is not projected before the
Court, which ultimately result in unjust conviction or unjust
acquittal. The Karnataka Police Manual does not lay down
any guidelines for the I.O. regarding the procedures to be
followed in the investigation of a case and counter and for
filing the final report. It is high time that the necessary
amendments have to be effected to the Karnataka Police
Manual in this regard.
30. In the instant case, the I.O. has suppressed
truthful facts. It is in evidence that PW-1, A-2 and A.8 were
admitted to Me.Gann Hospital. The complains of PW.1 and
A.2 have been recorded at Me. Gann Hospital, why then the
wound certificates of A-2 and A-8 are issued by PHC,
Anandapur and not by Me. Gann Hospital. The I.O. does not
explain the injuries on the A-2 and A-8. It is the duty on the
part of the prosecution to explain the injuries on the accused.
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The A.2 and A.8 have produced their wound certificates and
copy of the private complaints in their defence. The I.O. has
not produced the final report in Crime No. 91/2001 to
explain the genesis of the incident and to show which party is
an aggressor. In the absence of complete material relating to
incident, it will be difficult for the Court to adjudge the guilt
of the accused.
31. The FIR lodged by A-2 probabilises the fact that,
PW-1, PW-3 to P.W.5, PW.9 and PW.12 along with the
deceased have also indulged in the acts of assault on A-2 and
A-8 who were also admitted to Me Gann Hospital
simultaneously along with the deceased and PW-1. In the
circumstances, it can be inferred that in a state of quarrel
between the two groups the assault takes place and injuries
are inflicted on the members of both the group. The case of
the prosecution discloses that in the second phase of attack, it
was only A.1 and A.6 who deal blows on the deceased. The
others said to have fisted and kicked the deceased. But there
are no corresponding injuries to corroborate the overt acts of
fisting and kicking. The Trial Court has committed a grave
error in acquitting A-6 for an offence under Section 302 IPC.
The Trial Court has convicted only A.1 under Section 302
IPC. Since there is no appeal by the State against the
acquittal of A.6, it may not be proper to reconsider the order
of acquittal.
32. The evidence of the witnesses implicate A-1, A-2,
A-6, A-17 to A-20 and A-24 with overt acts of assaulting PW-
1, PW-5, PW-12 and the deceased. There is no reference to
the overt acts of A.3, to A.5, A.7 to A.16 and A.21 to A.23.
The conviction of A.1, A.2, A.6, A.17 to A.20 and A.24 for
offence under Section 324 r/w Sec, 149 IPC is confirmed.
33. The conviction of A.3 to A.5 A.7 to A.16 and A.21
to A.23 under Sections 143, 147, 323, 324 r/w Sec. 149 IPC
is set aside.
34. The conviction of A.1, A.2 and A.6 under section
148 IPC is confirmed, although improper to the extent in
acquitting the other accused who are guilty under Section
148 IPC.
35. The conviction of A.1 under Section 302 IPC is
confirmed.
The Registry is directed to send a copy of the
Judgment to the Home Secretary, Director General of Police
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and Hon'ble Law Minister to give effect to the observations
made in paras 26, 27 and 28 regarding the procedure to be
followed by the I.O. in a 'case and counter' and for effecting
necessary amendments to the Karnataka Police Manual."
(Emphasis supplied)
This Court, set aside the conviction of the accused
inter alia on the said ground and directed the Deputy General
of Police to strictly follow the observation and bring in
necessary amendments to the Karnataka Police Manual.
7. The subsequent paragraph speaks of circular issued by
the Director-General of Police and Inspector-General of Police,
stating therein that in a case of single incidence if there are two
FIRs, same Investigating Officer should investigate both the
FIRs. Further directions were also given.
8. What is relevant for us in the present case is that the
Karnataka High Court has referred to the judgment of Supreme
Court in case of State of M.P. vs. Mishrilal (Dead) and ors.
(2003) 9 SCC 426 and Nathi Lal vs. State of U.P. (1990 Supp
SCC 145) and another judgment of Karnataka High Court to
render a finding that same Investigating Officer must investigate
into a case and counter case arising out of same incidence.
9. In the light of above, the petitioner's counsel submits
that since the trial has commenced in the crime registered by
respondent No.5, the same Investigating Officer should
investigate the crime registered at the instance of petitioner.
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The prayer appears to us to be in tune with the judgment passed
by the Karnataka High Court. For the time being, we do not
find any reason to take a different view in the matter.
Accordingly, we proceed to pass the following order :
(a) The petition is partly allowed.
(b) The order of N.C. Closure Report No.06/2025 dated
23/01/2025 filed by the respondent No.1 in Crime
No.76/2024 is quashed and set aside.
(c) The Superintendent of Police, Bhandara shall appoint the
same Investigating Officer to investigate the aforesaid
crime, who has investigated Crime No.70/2024.
(d) The Investigating Officer shall re-investigate the crime
and complete the same in accordance with law and file
appropriate report.
(e) Writ Petition is disposed of in above terms.
(f) Parties to act upon uploaded copy of the order.
(Raj D. Wakode, J.) (Anil L. Pansare, J.)
Asmita
Signed by: Smt. Asmita A. Bhandakkar
Designation: PS To Honourable Judge
Date: 13/11/2025 18:08:31
