Madras High Court
Mohanraj vs The Inspector Of Police on 22 August, 2023
Crl.O.P.(MD).No.11398 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :22.08.2023
CORAM:
THE HONOURABLE MR. JUSTICE P.DHANABAL
Crl.O.P.(MD).No.11398 of 2020
and
Crl.M.P(MD) Nos.5205 and 5206 of 2020
1. Mohanraj
2. Sutharshan
3. Mariyammal ... Petitioners
Vs.
1. The Inspector of Police
Thogamalai Police Station
Karur District
2. Shanmugam ..Respondents
PRAYER: This Criminal Original Petition has been filed under Section
482 of Criminal Procedure Code, to call for the records pertaining to
C.C.No.55 of 2020 on the file of the learned Judicial Magistrate No.I,
Kulithalai, Karur District
For Petitioners : Mr.R.Murugappan
For R.1 : Mr.M.Sakthikumar
Government Advocate(Crl.Side)
For R-2 : Mr.S.Deenadhayalan
https://www.mhc.tn.gov.in/judis
1/17
Crl.O.P.(MD).No.11398 of 2020
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in C.C.No.55 of 2020 on the file of the learned Judicial
Magistrate No.I, Kulithalai, Karur District.
2. According to the petitioners the second respondent herein
has lodged complaint before the first respondent alleging that these
petitioners and others due to civil dispute regarding pathway on
23.12.2019 at about 08.30 hrs abused the defacto complainant in filthy
language and the second petitioner punched on the second respondent
chest with hands and legs and also caused criminal intimidation. Based
on the above said complaint First Information Report has been registered
in Crime No.282 of 2019 for the offences under Sections 294(b),323 and
506(i) of IPC. Thereafter the first respondent investigated the case and
filed final report and the same was taken on file by the learned Judicial
Magistrate No.I, Kulithalai in C.C.No.55 of 2020 and the same is pending
for trial. The cognizance taken by the learned Magistrate is against law
and there is a counter case registered in First Information Report in
Crime No.283 of 2019 for the offences under Sections 294(b),324 and
506(ii) of IPC against the second respondent and his wife. On the same
day this complaint was lodged and case has been registered. After
investigation both the cases have been charge sheeted in C.C. No.54 of
2020 and C.C.No.55 of 2020 and taken on file by the learned Judicial
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.11398 of 2020
Magistrate No.I, Kulithalai. The first respondent has not followed the
Police Standing Order 588A and failed to find out the aggressor. Without
following the procedure filed final report in both cases. The alleged
occurrence took place in the private land and thereby the offence under
Section 294(b) of IPC would not attract. The alleged occurrence was on
23.12.2019 but the First Information Report was registered on
25.12.2019. Therefore there is no material available as against these
petitioners and hence the charge sheet in liable to be quashed.
3. No counter was filed by the respondents.
4. The learned counsel appearing for the petitioners would
contend that the second respondent had given a false complainant as
against these petitioners and the First Information Report has been
registered in Crime No.282 of 2019 for the offences under Sections
294(b),323 and 506(i) of IPC. As per Police Standing Order 588 A the
investigation officer has to find out the real aggressor but without
following the procedure filed final report in both cases which is against
the Police Standing Order 588 A. Further no offence is made out as
against these petitioners and without conducting proper investigation
the first respondent filed final report , hence the charge sheet is liable to
be quashed. He also relied on the judgment of the Hon'ble Apex Court in
the case of Sunil Kumar .vs. State of U.P and another in Criminal
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.11398 of 2020
Appeal No.2255 of 2023 and the order of this Court in the case of
Kumar and others .vs. The Inspector of Police, Rasipuram Police
Station, Namakkal District in Crl.O.P(MD) No.12203 of 2017
5. The learned counsel appearing for the second respondent
would contend that on the date of occurrence itself these petitioners
assaulted the second respondent, used abusive words and thereby he
lodged complaint. The petitioners have also given complaint against the
second respondent and the same has been registered in Crime No.282 of
2019 for the offences under Sections 294(b),323 and 506(i)of IPC.
Thereafter investigation was conducted and final report was filed in both
cases. The learned counsel appearing for the second respondent relied on
the Judgment of this Court in the case of R.Velladurai and others .vs.
The Inspector of Police reported in 2016 1 LW(Cri.518) and
Nathilal and others .vs State of U.P and another reported in 1990
(Supp) SCC 145 and seeks dismissal of the petition.
6. The learned Government Advocate(Crl.Side) appearing for
the first respondent would contend that these petitioners and the second
respondent both had given separate complaints and as against each
others and First Information Reports have been registered in Crime Nos.
282 and 283 of 2019. Crime No.282 of 2019 pertaining to the second
respondent and Crime No.283 of 2019 pertaining to these petitioners.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.11398 of 2020
After conducting investigation in both cases charge sheets have been
filed. Already the Hon'ble Supreme Court and this Court ordered that
police officer can file charge sheet in both cases if unable to find out the
aggressor. In this case also the investigating officer could not find out the
real aggressor and thereby after following the procedure only the first
respondent filed report and cases are pending for examination of
witnesses and at this stage this Court may dismiss the petition. There
are prima facie materials available as per the investigation done by the
second respondent , thereby the petition is liable to be dismissed.
7. Heard both sides and perused the materials available on
record.
8. It is an admitted that two First Information Reports have
been registered in Crime No. 282 of 2019 and 283 of 2019 as against
these petitioners and second respondent respectively. Thereafter
investigation was done by the first respondent and final reports were
filed in both cases. The main contention of the petitioners is that the first
respondent has not followed the procedures under 588 A of the Police
Standing Order and to support his contention he relied on the order of
this Court in the case of Kumar and others .vs. The Inspector of
Police, Rasipuram Police Station, Namakkal District in
Crl.O.P(MD) No.12203 of 2017, wherein it is held as follows:
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.11398 of 2020
“10.Useful reference can be made to the judgment of
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]. The relevant portions of the
judgment is extracted hereunder:
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 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
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.11398 of 2020
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 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
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.11398 of 2020
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 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”.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.11398 of 2020
9. It is clear from the above judgment that the respondent Police
can file only one Final Report in a case of this nature and there cannot be
two Final Reports for the same incident more particularly since the
second respondent and his wife have been found to be the aggressor and
a Final Report as already been filed and pending in SC.No.104 of 2014
and also discussed in para. 10 and then quashed the criminal
proceedings.
10. The learned counsel appearing for the second respondent
relied on the judgment of the Hon'ble Supreme Court in the case of
Nathi Lal and other Vs. State of U.P and another reported in 1990
(Supp) SCC 145 , wherein it is held as follows:
“We think that the fair procedure to adopt in a matter
like the present where there are cross cases, is to direct that the
same learned Judge must try both cross cases one after the other.
After the recording of evidence in one case is completed, he must
hear the arguments but he must reserve the judgment. Thereafter
he must proceed to hear the cross case and after recording all the
evidence he must hear the arguments but reserve the judgment in
that case. The same learned Judge must thereafter dispose of the
matters by two separate judgments. In deciding each of the cases,
he can rely only on the evidence recorded in that particular case.
The evidence recorded in the cross case cannot be looked into. Nor
can the judge be influenced by whatever is argued in the cross
case. Each case must be decided on the basis of the evidence which
has been placed on record in that particular case without being
influenced in any manner by the evidence or arguments urged in
the cross case. But both the judgments must be pronounced by the
same learned Judge one after the other”
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.11398 of 2020
11. Further the Hon'ble Division Bench of this Court in the case
of R.Velladurai and ors .vs. The Inspector of Police reported in
2016 1 LW(Cri.518) after relying the judgement of the Hon'ble
Supreme Court has held as follows:
“17. Finally, it came up before Justice Arunachalam
sitting single in V.Karthikeyan and others v. State by S.I. of Police
and others, 1992 Crl.L.J. 2948. After having a thorough survey of all
the above judgments including the judgement of the Hon'ble
Supreme Court cited supra, the learned Judge in para 17 & 18 has
held as follows:- "17. Once this conclusion is arrived at, the judgment
of the apex Court steps in and there could be no difference then
between P.S.O. 145 and P.S.O. 588A Chapter II of the Code of
Criminal Procedure invests the police with the statutory rights to
receive and record information of the commission of a cognisable
crime and carry on investigation, before a prosecution is launched.
Police Standing Orders cannot override the provision of the Code of
Criminal Procedure. In State of Punjab v. Rajkumar, after considering
the nature and purpose of R. 16.38 of the Punjab Police Rules, the
Supreme Court held : "The rules were not intended to replace and
cannot certainly override the provisions of the Criminal 22 Procedure
Code. In State of Punjab v. Charan Singh, 1981 SCC Cri 407 : (1981
Cri LJ 712) it was declared that R. 16.38 cannot govern criminal
prosecution, against the members of the police as it could not
override the provisions of the Code of Criminal Procedure. The
Punjab Police Act, under S. 12, made a provision for the Inspector
General of Police, subject to the approval of the State Government to
frame such orders and rules, as stated in the said section, and the
Punjab Police Rules were framed in the exercise of the powers
conferred under S. 1 and S. 7 which dealt with the appointment,
dismissal, etc. of inferior officers. This provision appears akin to S. 9
of the Madras District Police Act. The net result is that P.S.O. 588A
will have to be held as only directory and not mandatory. P.S.O. 588A
is nothing more than administrative instructions and it cannot have
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.11398 of 2020
the force of law. The nonfollowing of the procedure prescribed under
P.S.O. 588A will not constitute an illegality to quash the impugned
prosecutions. The law laid down by the Supreme Court, coupled with
the lack of power under S. 9 of the Tamil Nadu District Police Act to
issue P.S.O. 588A as a statutory mandate, would answer the question
involved and here reference to a Division Bench, does not arise. 18.
Administrative instructions in P.S.O. 588A issued on the basis of the
decision of P. N. Ramaswami, J. in Ramakrishnayya's case, commend
observance, but merely because the 23 provisions of the order have
not been followed in a particular case by the Investigating Agency,
that would not constitute illegality to quash the prosecutions
launched. The decisions rendered by P. N. Ramaswami, J. in
Ramakrishnayya v. State, 1954 MWN Cr 9; David Annoussamy, J. in
Ekambaram v. Sundaramurthy, 1989 (1) Crimes 458 and S. T.
Ramalingam, J. in Pandurangan v. State by Inspector of Police,
Thirukazhukundaram, 1987 LW Cri 400 have dealt with the
procedure to be followed in cases and counter, taken on file either on
the basis of two final reports or one final report and not her private
complaint."
18. From the above Judgments, the law now remains well
settled that it is not an illegality to file final report in both the case
and the counter case. What is to be tested is only the question of
prejudice for the accused.”
12. Further the Hon'ble Division Bench of this Court in the case
of Sankar @ Jeyasankar @ Sivasankaran .vs. The Inspector of
Police, Udiyalipatti Police Station, Pudukottai has held that
“16. In yet another case in Ekambaram v. Sundarmurthy,
1989 (1) Crimes 458, the same question came up for consideration
before yet another Judge of this Court. In that case, the learned Judge
took a contrary view.
17. Finally, it came up before Justice Arunachalam sitting
single in V.Karthikeyan and others v. State by S.I. of Police and others,
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.11398 of 2020
1992 Crl.L.J. 2948. After having a thorough survey of all the above
judgments including the judgement of the Hon'ble Supreme Court cited
supra, the learned Judge in para 17 & 18 has held as follows:-
"17. Once this conclusion is arrived at, the judgment of the
Apex Court steps in and there could be no difference then between
P.S.O. 145 and P.S.O. 588A. Chapter II of the Code of Criminal
Procedure invests the police with the statutory rights to receive and
record information of the commission of a cognisable crime and carry on
investigation, before a prosecution is launched. Police Standing Orders
cannot override the provision of the Code of Criminal Procedure. In
State of Punjab v. Rajkumar, after considering the nature and purpose of
Rule 16.38 of the Punjab Police Rules, the Supreme Court held:
"The rules were not intended to replace and cannot certainly
override the provisions of the Criminal Procedure Code. In State Of
Punjab v. Charan Singh ., 1981 SCC Cri 407 : (1981 Cri LJ 712) it was
declared that Rule 16.38 cannot govern criminal prosecution, against
the members of the police as it could not override the provisions of the
Code of Criminal Procedure. The Punjab Police Act, under Section 12,
made a provision for the Inspector General of Police, subject to the
approval of the State Government to frame such Orders and Rules, as
stated in the said section, and the Punjab Police Rules were framed in
the exercise of the powers conferred under Section 1 and Section 7,
which dealt with the appointment, dismissal, etc. of inferior officers.
This provision appears akin to Section 9 of the Madras District Police
Act. The net result is that P.S.O. 588A will have to be held as only
directory and not mandatory. P.S.O. 588A is nothing more than
administrative instructions and it cannot have the force of law. The
nonfollowing of the procedure prescribed under P.S.O. 588A will not
constitute an illegality to quash the impugned prosecutions. The law laid
down by the Supreme Court, coupled with the lack of power under
Section 9 of the Tamil Nadu District Police Act to issue P.S.O. 588A as a
statutory mandate, would answer the question involved and here
reference to a Division Bench, does not arise.
18. Administrative instructions in P.S.O. 588A issued on the
basis of the decision of P. N. Ramaswami, J. in Ramakrishnayya's case,
commend observance, but merely because the provisions of the order
have not been followed in a particular case by the Investigating Agency,
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.11398 of 2020
that would not constitute illegality to quash the prosecutions launched.
The decisions rendered by P. N. Ramaswami, J. in Ramakrishnayya v.
State, 1954 MWN Cr 9; David Annoussamy, J. in Ekambaram v.
Sundaramurthy, 1989 (1) Crimes 458 and S. T. Ramalingam, J. in
Pandurangan v. State by Inspector of Police, Thirukazhukundaram, 1987
LW Cri 400 have dealt with the procedure to be followed in cases and
counter, taken on file either on the basis of two final reports or one final
report and not her private complaint."
18. From the above Judgments, the law now remains well
settled that it is not an illegality to file final report in both the case and
the counter case. What is to be tested is only the question of prejudice
for the accused.”
13. Therefore as per the dictum laid down in the case of Nathi
Lal and other Vs. State of U.P and another reported in 1990 (Supp)
SCC 145 and also the Division Bench of this Court in R.Velladurai and
ors .vs. The Inspector of Police reported in 2016 1 LW(Cri.518) ,
the law now remains settled that it is not an illegality to file final report
in both cases and the counter cases. Further as per the dictum laid down
by the Hon'ble Division Bench of this Court Sankar @ Jeyasankar @
Sivasankaran .vs. The Inspector of Police, Udiyalipatti Police
Station, Pudukottai ,Police Standing Order 588-A is nothing more that
administrative instructions and it cannot have a force of law and non
following of procedures prescribed under Police Standing Order 588-A
will not be constitute an illegality to quash the proceedings. In the case
referred by the learned counsel appearing for the petitioner in Kumar
and others .vs. The Inspector of Police, Rasipuram Police Station,
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.11398 of 2020
Namakkal District in Crl.O.P(MD) No.12203 of 2017, the case laws
of Nathi Lal and other Vs. State of U.P and another reported in
1990 (Supp) SCC 145,R.Velladurai and ors .vs. The Inspector of
Police reported in 2016 1 LW(Cri.518) and Sankar @ Jeyasankar @
Sivasankaran .vs. The Inspector of Police, Udiyalipatti Police
Station, Pudukottai were not placed before this Court and thereby the
said case law relied on by the petitioner will be applicable to the present
facts of the case.
14. As far as judgment of the Hon'ble Apex Court in the case of
Sunil Kumar .vs. State of U.P and another in Criminal Appeal No.
2255 of 2023, wherein it is held as follows:
“5.Having regard to the submissions made by the learned
counsel for the parties and to the documents on record particularly
from the cross complaints filed by the appellant and the respondent
no. 2 against each other, it appears that the alleged incident had taken
place on 11.09.2014 in the office of the appellant, and the chargesheet
was filed in the Court of Chief Judicial Magistrate, Fatehpur (U.P.)
against the appellant in respect of the complaint filed by the
respondent no. 2. The said case is pending without trial since 2015 in
the said court.
6.Considering the nature of allegations against the
appellant which are of very trivial nature and considering the fact that
there is no progress made in the proceedings since the charge sheet
was filed against the appellant in the year 2015, the Court is of the
opinion that continuing the proceedings would be a persecution and
harassment to the appellant. As such a petty incident which took place
in their office should have been resolved by the parties on that day
itself, instead of stretching it so far”
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.11398 of 2020
15. On a careful reading of the above judgment it will not be
applicable to the present facts of the case and it is pertaining to the
offences which are trivial in nature but in this case already final report
filed and as per the final report prima facie materials as against these
petitioners.
16. In this case the Investigation Officer after following the
procedures filed final report as against both parties in both cases. In
view of the above said judgments and in view of the above discussions
there is no merits in this petition and it deserves to be dismissed.
17. Accordingly this Criminal Original Petition stands dismissed
and the trial Court is directed to follow the procedures as per the dictum
laid down in the case of Nathi Lal and other Vs. State of U.P and
another reported in 1990 (Supp) SCC 145 and dispose of the cases as
early as possible preferably within a period of six months from the date of
receipt of a copy of this order. Consequently connected miscellaneous
petitions are closed.
22.08.2023
Index : Yes / No
Internet : Yes / No
aav
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.11398 of 2020
To
1. The Judicial Magistrate No.I, Kulithalai, Karur District
2. The Inspector of Police
Thogamalai Police Station
Karur Distric
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).No.11398 of 2020
P.DHANABAL, J.
aav
Crl.O.P.(MD).No.11398 of 2020
22.08.2023
https://www.mhc.tn.gov.in/judis
