Madras High Court
Dharmenthiran vs State Rep. By on 1 October, 2024
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
2024:MHC:3509
CRL OP(MD). No. 1063 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 03.09.2024
Delivered on : 01.10.2024
CORAM
The Hon`ble Mr Justice D.BHARATHA CHAKRAVARTHY
CRL OP(MD). No.1063 of 2021
and
Crl.M.P.(MD)No.7924 of 2021
1.Dharmenthiran
2.Pramoth Kumar
3.Revathi
4.Gowsalya
5.Priyanka
6.Durai ... Petitioners
Vs.
1.State rep. By
The Inspector of Police,
Elayangudi Police Station,
Sivagangai District
(In Crime No.275/2018)
2.Gangadevi ... Respondents
1/26
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CRL OP(MD). No. 1063 of 2021
PRAYER :- This Petition is filed under Section 482 Cr.P.C, to call for
the records pertaining to the charge sheet in P.R.C.No.09 of 2020 on the
file of the Judicial Magistrate, Ilayangudi and quash the same.
For Petitioners : Mr.V.Kathirvelu, Senior Advocate
for Mr.K.Navaneetharaja
For Respondents : Mr.R.M.Anbunithi
Additional Public Proseuctorfor R1
: Mr.N.Karthik Kanna for R2
ORDER
A. The Petition:
This Petition is filed to call for the records pertaining to the final
report filed in P.R.C.No.9 of 2020 on the file of the learned Judicial
Magistrate, Ilayankudi and quash the same and pass further orders.
B. The Arguments:
2. Heard Mr V. Kathirvelu, learned Senior Counsel appearing on
behalf of the petitioners, Mr R.M. Anbunithi, learned Additional Public
Prosecutor appearing on behalf of the first respondent and Mr Karthick
Kanna, learned counsel appearing on behalf of the second
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respondent/defacto complainant.
2.1 Mr V.Kathirvelu, learned Senior Counsel appearing on behalf
of the petitioners would submit that the father of the petitioners 1 to 5
was murdered in the transaction and only to save their skin, as a
counterblast, the defacto complainant has given the present complaint.
The defacto complainant and the family of the defacto complainant did
not even sustain any grievous injury in the transaction. They were the
aggressors and there was not even any attack by the petitioners, who
were all members of the same family. The final report is filed without
properly investigating the false countercase. One of the petitioners has
completed Law and is awaiting enrolment for no fault him since the
present final report has been filed. The other case, in which, the defacto
complainant and her family members are the accused is also pending
before the same learned Judicial Magistrate, Ilayangudi. The learned
Senior Counsel would place reliance upon the Full Bench judgment of
this Court in T.Balaji V. State rep. By the Inspector of
Police, New Washermenpet Police Station, 2024-4-
LW-534. He would submit that absolutely, no effort whatsoever has
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been taken by the investigating officer to find out the truth and therefore,
this Court has to interfere.
2.2. Mr. R.M.Anbunithi, learned Additional Public Prosecutor,
would submit that the investigation is duly carried on and the final report
has been filed in accordance with law. When the same is pending
committal, the quash petition cannot be entertained by this Court and no
ground is made out for interference by this Court.
2.3. Mr. Karthick Kanna, learned counsel appearing on behalf of
the second respondent would submit that even in the Full Bench
judgment of this Court, the Hon'ble Full Bench has differentiated the
cases arising out of the same transaction into Type - I and Type -II and
this case falls under Type-II and 3 category mentioned in tType -II, that
rd
is both parties have exceeded the bounds of law and committed offence
against each other. According to him, it can be seen that there was no
aggressor or defender in the instant case. Therefore, finding truth in the
allegations of both cases, final reports have been filed in both cases as
per the dictum laid down by the Hon'ble Full Bench. All further
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contentions can be gone into during the trial alone. The quash
application is filed on factual contentions and no ground is made out for
entertaining the quash application hence the same should be dismissed.
C. The Factual Back ground:
3. The factual premises unfurl like a typical Tamil movie plot. The
grandfather of the petitioners' herein had two wives. The deceased
Kannusamy was the son born through the first wife. Pappa is his half-
sister born through the second wife. They were residing in the opposite
house. Pappa is married to one Karuppiah. Karuppiah’s cousin sister
Revathy is the wife of Kannusamy. There were long-standing property
and other disputes. Amidst this, the son of Pappa, namely, Jegatheesan
got married to Kowsalya his maternal uncle Kannusamy’s daughter. They
are living in the nearby town of Paramakudi. However, when both of
them come to the native village, the husband and wife will go to their
respective houses and will not come to the opposite houses and take
positions in tune with their respective families.
3.1. While so, 06.11.2018 was the Diwali day. Close relatives of
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both families assembled in their respective houses. At about, 06.00 to
07.00 pm., in the evening, it can be seen that there arose a quarrel leading
to a physical attack by the members of rival families at each other.
Kannusamy was said to have been pushed down and kicked on the chest,
on account of which, he vomited blood. He was taken to the Hospital,
where he was reported dead. Some of the members of the Pappa’s family
got injured. They also went to the hospital and got treatment as
outpatients. It can be further seen that the deceased Kannusamy himself
was a retired Sub Inspector of Police and there are police personnel in the
other family also.
D. The Case – I:
4. In this background, on 07.11.2018, at about 17.00 hours the
second petitioner herein, namely, K Promoth Kumar, who is the son of
the deceased Kannusamy, went to Ilayangudi Police Station and lodged a
complaint. According to him, he has come to the village for the Diwali
holidays and his maternal uncle and his family are living opposite house.
His maternal uncle's son, viz., Jegatheesan and his sister Kowsalya
married each other on 12.12.2010 and ever since Jegatheesan and his
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mother - Pappa have been asking for dowry and creating problems. They
were often compromising the issue and were making his sister to live
together. When his father retired from service, again, they created
problems, by asking for money from his retiral benefits. He refused and
he spent the money for other sister Priyanka’s marriage.
4.1. While so, on 06.11.2018, in the morning, Pappa, who is living
in the opposite house started a quarrel by questioning and calling his
father Kannusamy by names that he did not even give any single penny
from the retiral benefits. In the morning itself, she said that her son
Ramesh had a lot of money and he had ordered to kill all of the
petitioner’s family and only for that her relatives had assembled on that
day. At about 06.30 pm, to light the lamp in one of the buildings
belonging to the petitioner's family, his father went out of the house.
Immediately, thereupon, he was heard screaming to save him. When the
defacto complainant came out, Pappa's son – Jegatheesan had pulled
down his father and was kicking in the chest by uttering the words
'nrj;Jg; Nghlh'.
4.2. With him, the brother of the said Pappa – Duraisingam and
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another brother's son- Kanibalan Vinoth, were also attacking his father.
At that time, Pappa's younger brother's wife Selvi, Pappa's daughters
Gangadevi, Kalpana, and daughter-in-law -Varsha were shouting by
uttering unparliamentary words, insisting that his father be killed on the
spot. Shocked by this, the petitioners Promoth Kumar and his brother-
Dharmendran and his mother went to rescue their father. Upon seeing his
mother, the said Pappa, Selvi, Varsha, Gangadevi, and Kalpana, pulled
her hair and attacked her. The petitioner's brother was attacked with a
spade, aiming his head and the petitioner was strangulated by Pappa's
son-in-law- Ravichandran. By overcoming all of them, the petitioners
and family members brought his father inside their house . His father
vomited blood. He called 108 Ambulance. The Ambulance did not come
immediately. They tried to take his father to the hospital by motorbike.
Even at that time, the other family members prevented them, uttering that
the petitioners’ father should die there. Despite this, they managed to
take the petitioners’ father to Paramakudi Government Hospital. The
Doctor examined their father and said that he was already dead.
Therefore, he is praying for action against all the accused.
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4.3. On the said complaint, a case in Crime No.274 of 2018 was
registered for the alleged offences under Sections 147, 148, 294(b), 323,
324 and 302 I.P.C.
E. The Case – II :
5. On the same day, at about 06.00 am itself on behalf of the
opposite side, Gangadevi, wife of Kaleeswaran, came to the police
station and lodged a complaint. As per her version, she is residing with
her family in Tiruppur. On 06.11.2018, she came for Diwali to her
father's house along with her husband-Kaleeswaran. Her husband and
son left for Tiruppur in the morning at about 06.15 pm. Kannusamy's
grandchildren burst crackers in front of their house. Her mother – Pappa
objected to that and admonished them to burst the cracker a little farther
away.
5.1. For that, Kannusamy came to her mother and questioned how
she could shout his grandchildren and a wordy quarrel ensued.
Kannusamy scolded her mother in filthy language hit her with his hands
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and pushed her down. When Gangadevi tried to intervene and separate
them, Kannusamy hit her with her hands and pushed her also. Then,
Duraisingam came from behind the house and separated them.
Kannusamy's sons Dharmendran, Pramothkumar, Kannusamy's wife
Revathy, Kannusamy's daughters, Kowsalya, Priyanka, Priyanka's
husband-Durai came there and by calling them in unparliamentary
language and by questioning how dare that my mother can say that the
children could not burst crackers, Dharmendran took a spade
(kz;ntl;b) and by uttering the words ‘to die’ attempted to hit her uncle.
She pulled her uncle, but, for the same, her uncle Duraisingam would
have got hit on the left side of the head. Revathi, Kowsalya, Priyanka
got hold of her hair and pushed her down and repeatedly kicked her with
their legs. At that time, Pramothkumar and Durai hit her, her mother
Pappa and her uncle Duraisingam with a stick on the left side of the head.
Her mother suffered a bleeding injury and Duraisingam also got bleeding
injuries on the head and nose. Thereafter, Duraisingam went to
Ilayangudi Government Hospital for treatment in his two-wheeler.
Thereafter, she called 108 Ambulance she and her mother Pappa also
went to the hospital and were treated as outpatients and went home.
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Therefore, she requested action against the persons, who abused them
and hit them with hands, wooden sticks, iron rods and spade.
5.2. On the strength of the said complaint, a case in Crime No.275
of 2018 was registered by the very same Ilayangudi Police for the
offences punishable under Sections 147, 148, 294(b), 323, 324 and 307
I.P.C and Section 4 of TNPHW Act.
F. The Investigation and Final Reports :
6. After registration of both cases, it can be seen that the
investigating officer had examined the respective family members as the
witnesses in the respective cases and the other witnesses completed the
investigation and filed final reports in both cases. The first case with
reference to the major offence under Section 302 I.P.C, is taken on file as
P.R.C.No.9 of 2020 and the same is pending committal. In the said case,
the following final report is filed:
“,t;tof;fpd; rhl;rp 1 Md gpuNkhj;Fkhh;
23/18 vd;gth; kJiuapy; gapw;rp tof;fwpQuhf
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gzpahw;wp tUtjhfTk; rhl;rp 1-d; mg;gh fhty;
Jiwapy; rpwg;G rhh;G Ma;thsuhf gzpGhpe;J
Xa;T ngw;Wtpl;L tof;fhdpapy; FLk;gj;Jld;
jq;fp tptrhak; ghh;j;J tUtjhfTk;> rhl;rp 1-d;
jPghtsp tpLKiwf;F CUf;F te;jpUg;gjhfTk;>
rhl;rp 1-d; vjph; tPl;by; rhl;rp 1-d; jha;khkh
fUg;igah tPL ,Ug;gjhfTk;> rhl;rp 1-d; mf;fh
nfsry;ahTf;F jha;khkd; kfd; n[fjPrid
12.12.2010 md;W jpUkzk; nra;J
nfhLj;jjhfTk;> Nkw;gb jpUkzj;jpw;F gpwF
rhl;rp 1-d; mf;fh nfsry;ahit n[fjPrDk;
mtuJ mk;kh ghg;ghTk; njhlh;e;J tujl;riz
Nfl;L gpur;rid nra;Jte;jjhfTk;> gyKiw
rkhjhdk; nra;J nfsry;ahir n[fjPrDld;
tho itj;jjhfTk;> rhl;rp 1-d; mg;ghthd ,we;j
fz;Zr;rhkp fhty; Jiwapy; ,Ue;J Xa;T ngw;w
gpwF mtUf;F toq;fg;gl;l gzj;ij Nfl;L
gpur;rid nra;jjhfTk; rhl;rp 1-d; je;ij mij
juKbahJ vdf; $wp rhl;rp 1-d; jq;if
gphpaq;fhtpd; jpUkzj;jpw;F nryT nra;jjhfTk;>
,jid njhlh;e;J rhl;rp 1-d; khkhthd
fUg;igahTf;Fk;> rhl;rp 1-d; mk;kh
Nutjpf;Fk; ,ilapy; nrhj;J jfuhW ,Ue;J te;j
epiyapy; 06.11.2018-k; Njjp rhl;rp 1-d; mj;ij
ghg;gh> rhl;rp 1-d; jug;gpdiug; ghh;j;J vd; tPl;by;
fl;b FLj;j cd; kfSf;F ey;y rPh; nra;a
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Kbahj ehNa fz;Zrhkp hpl;ilL
gzj;jpy; ,Ue;J $l xU ,UgJ yl;rk;
nfhLf;fhj tf;fj;j ntz;z kfNd vd jpl;bAk;>
06.11.2018 md;W khiy 06.30 kzpastpy; mUfpy;
,Ue;j rhl;rp 1-d; Flk;gj;jhh; fl;b
nfhz;L ,Uf;Fk; fl;blj;jpy; tpsf;F
NghLtjw;fhf rhl;rp 1-d; mg;gh ntspapy; nrd;w
NghJ vjphpfs; 1 Kjy; 6 vjphpfSk; rhl;rp 1-d;
tPl;L Kd;G cs;s Nuhl;by; xd;W$b> rhl;rp 1-d;
je;ij fz;Zrhkp> rhl;rp 2 jh;Nke;jpud;> rhl;rp 3
Nutjp MfpNahh;fis jhf;fp nfhiy nra;a
Ntz;Lnkd;W Fw;wKW nghJ Nehf;Fld;; 1 Kjy;
4 vjphpfs; rhl;rp 1-d; je;ij fz;Zrhkpia
jq;fs; iffshYk;> fhyhYk; kpjpj;J jhf;fpAk;>
rhl;rp 1-d; je;ij fz;Zrhkpapd; fhg;ghj;Jq;f
vd myWk; rj;jk; Nfl;L> rhl;rp 1-k; mtuJ
FLk;gj;jhh;fSk; tPl;Lf;F ntspNa te;j ghh;j;j
NghJ> 1 Kjy; 4 vjphpfshd n[fjPrd;>
Jiurpq;fk;> fdpghyd;> tpNdhj;Fkhh; MfpNahh;fs;
rhl;rp 1-d; mg;gh fz;Zrhkpia mbj;J fPNo
js;sp kpjpj;Jk;> 5-tJ vjphp ghg;gh> 6-tJ vjphp
fq;fhNjtp MfpNahh;fs; me;j Rd;dp
kfid ,q;NfNa nfhy;Yq;fs; vd fj;jpf;
nfhz;Nl> rhl;rp 1-d; mk;kh Nutjpia Kz;l
cd;idAk; Nrh;e;J nfhy;yZk; vdf;$wp
jiyKbia gpbj;J ,Oj;J jhf;fpAk;> rhl;rp 1-d;
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mz;zd; jh;Nke;jpud; mk;kh Nutjpia fhg;ghw;w
tuNt 3-tJ vjphp fdpghyd; kz;ntl;bahy; rhl;rp
1-d; mz;zd; jh;Nke;jpuid ntl;l te;jJk;>
jh;Nke;jpud; tpyfpajhy; fhypy; kl;Lk; fhak;
Vw;gl;Lk;> rhl;rp 1-d; mg;gh fz;Zrhkp
rk;gt ,lj;jpNyNa ,uj;j the;jp vLj;J kaf;fk;
Nghl;L tpOe;jjhy; rhl;rp 1> fz;Zrhkpia
kUj;Jtkidf;F mioj;J nry;y 108
Mk;Gyd;];f;F jfty; nrhy;yp Mk;Gyd;]; tu
jhkjk; Mdjhy; rhl;rp 1 kw;Wk; 2 ,UtUk;
igf;fpy; gukf;Fb muR kUj;Jtkidf;F
nfhz;L nrd;W Nrh;j;jNghJ rhl;rp 1-d; mg;gh
fz;Zrhkp ,we;J Ngha;tpl;ljhf fz;Zrhkpia
ghpNrhjpj;j kUj;Jth; $wpaJk; ,t;tof;fpd; 1-
tJ vjphp n[fjPrd;> 2-tJ vjphp Jiurpq;fk;>
3-tJ vjphp fdpghyd;> 4-tJ vjphp tpNdhj;Fkhh;
MfpNahh;fs; fz;Zrhkpia nfhiy nra;a
Ntz;Lk; vd;w Fw;wKW nghJ Nehf;Fld;
jq;fsJ iffshYk;> fhy;fshYk; fz;Zrhkpapd;
clk;gpy; jhf;fpAk;> fPNo js;sp fz;Zrhkpapd;
tapw;wpy; fhy;fshy; kpjpj;jjhy; fz;Zrhkpapd;
fy;yPuypy; ghjpg;G Vw;gl;L ,wg;ig Vw;gLj;jpAk;>
5-tJ 6-tJ vjphpfs; rhl;rp 1 FLk;gj;jhh;fis
mrpq;fkhf Ngrp> rhl;rp 1-d; mk;kh Nutjpia
iffshy; jhf;fpa Fw;wk; Ghpe;Js;shh;fs;. vdNt>
1> 2> 4 vjphpfspd; nra;ifahdJ gphpT 147>
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294(b)> 323> 324> 302-d; gbAk;> 3-tJ vjphpapd;
nra;ifahdJ gphpT 147> 148 294(b)> 323 ,jr
gbAk;jz;bf;fg;gl Ntz;batuhfpwhh;fs;. ,JNt
,Wjp mwpf;if.'
6.1. In the second case, in Crime No.275 of 2018, in which the
major offence is under Section 307 I.P.C, the following final report is
filed:
',t;tof;fpd; rhl;rp 1 Md fq;fhNjtp 44/18
f/ng fhsP];tud; jw;NghJ jpUg;G+hpy; trpj;J
tUtjhfTk; 06.11.2018-k; Njjp jPghtspia Kd;dpl;L
rhl;rp 1Ak; mtuJ FLk;gj;jpdUk; kw;Wk; rhl;rp 1-d;
cld; gpwe;jth;fshd uNk];> n[fjPrd;> fd;ghyd;>
tpNdhj; MfpNahh;fSk; jq;fs; FLk;gj;Jld; kw;Wk;
rhl;rp 1-d; gpwe;j tPlhd tof;fhdpf;F te;J tpohit
nfhz;lhb te;j epiyapy; kw;Wk; rhl;rp 1-d; mg;gh
fUg;igahtpd; xz;Ztpl;l jq;ifahd 3-tJ vjphp
Nutjpapd; Flk;gj;jhh;fshd 1-tJ vjphp jh;Nke;jpud;>
2-tJ vjphp gphpaq;fhtpd; fzth; Jiu
MfpNahh;fSk; Nutjp tPl;Lf;F te;j epiyapy;> rhl;rp
1-d; jk;gp n[fjPrDf;F Nutjpapd; kfd; 1-tJ vjphp
nfsry;ahit jpUkzk; nra;J nfhLj;J> jpUkzk;
nra;jjpy; ,Ue;Nj n[fjPrd; nfsry;ahit
jtpu ,U FLk;gj;jpy; cs;sth;fspy; ahUk;
ahUlDk; Ngrhky; ,Ue;jth;fs;> 06.11.2018-k; Njjp
06.15 kzpastpy; 3-tJ vjphp Nutjpapd; Ngud;fs;
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tPl;L thrypy; ntb Nghl;ljw;F rhl;rp 1-d; jhahh;
ghg;gh ,q;f ntb NghlhjPq;f vd;W rj;jk;
Nghl;ljhy; 3-tJ vjphpapd; fzth; fz;Zr;rhkp
te;J rhl;rp 1-d; mk;kh ghg;ghtplk; Vd; vd;
Ngud;fis rj;jk; NghLfpwha; vd;W jfuhW nra;J
ghg;ghit mbj;J fPNo js;spAk;> jLf;f te;j rhl;rp
1-d; mbj;J fPNo js;spAk;> rj;jk; Nfl;L te;j
rhl;rp 3 Jiu rpq;fk;> Nkw;fz;l fz;Zrhkpia
rj;jk; Nghl;L tpyf;fptpl;l NghJ rj;jk; Nfl;L 1-tJ
vjphp jh;Nke;jpud;> 2-tJ vjphp gpuNkhj;Fkhh;> 4-tJ
vjphp nfsry;ah> 5-tJ vjphp gphpaq;fh> 6-tJ vjphp
Jiu MfpNahh;fs; rl;l tpNuhjkhf xd;Wf;$b rhl;rp
1> kw;Wk; 2> 3 MfpNahh;fis jhf;fp nfhiy
nra;a Ntz;Lnkd;W Fw;wKW nghJ Nehf;Fld;
rk;gt ,lkhd rhl;rp 1-d; tPl;L Kd;G te;J ,e;j
Njtpbah kfs;fs; vd;d ,q;f ntb Nghl $lhJD
nrhy;ywJD jpl;bf; nfhz;Nl> 1 tJ vjphp
jh;Nke;jpud; mtq;f tPl;L mUfpy; fple;j kz;
ntl;bia vLj;J ,j;Njhl nrj;J njhiyq;fkh
vd;W nrhy;yp nfhz;Nl rhl;rp 3 Jiurpq;fj;ij
jhf;fpa NghJ> rhl;rp 1> rhl;rp 3-ia ,Oj;J
fhg;ghw;wpAk;> mg;gb rhl;rp 1>rhl;rp 3-ia ,Of;fhky;
,Ue;jpUe;jhy; rhl;rp 3-f;F jiyapy; fhak; Vw;gl;L
capUf;Nf Mgj;J Vw;gl;bUf;Fk; vd;Wk;> mNj Neuk;
3-tJ vjphp Nutjp> 4-tJ vjphp nfsry;ah> 5-tJ
vjphp gphpaq;fh %d;W NgUk; rhl;rp 1-d; jiyKbia
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gpbj;J mbj;J rhl;rp 1-f;F new;wpapy; rhjhuz
fhak; Vw;gLj;jpAk;> rhl;rp 2 kw;Wk; rhl;rp 3-ia> 2-
tJ vjphp gpuNkhj;FkhUk;> 6-tJ
vjphpAk; JiuAk; fk;gpahy; khwp khwp
mbj;J ,UtUf;Fk; rhjhuz fhaj;ij Vw;gLj;jpa
Fw;wk; Ghpe;Js;fhh;fs;.
vdNt> 1-tJ vjphp gphpT 147> 148> 294(b)> 324>
307 kw;Wk; 4 of TNPHW Act gbAk;> 2 kw;Wk; 6
vjphpfs; gphpT 147> 148 294(b)> 324 ,jr gbAk;> 3> 4>
5 vjphpfs; gphpT 147> 294(b), 323 ,jr gbAk;
jz;bf;fg;gljf;f Fw;wk; Ghpe;jth;fs; Mfpwhh;fs;.
Vjphpfs; midtUk; rl;ltpNuhjkhf nghJ
Nehf;Fld; xd;W $b rhl;rp 1> rhl;rp 2 kw;Wk; rhl;rp
3 MfpNahh;fis jhf;fpa nra;ifahdJ ,jr
gphpTfs; 147> 148> 294(b)> 323> 324> 307 IPC & 4 of
TNPHW Act r/w 34 IPC gb jz;bf;fg;gljf;f Fw;wk;
Ghpe;jth;fs; Mfpwhh;fs;.'
G. The Discussion & Findings:
7. Thus, it can be seen that the findings of the investigating officer
and the final report filed are nothing but the respective versions as
maintained by both families. Both are contradictory and both cannot be
true. Therefore, this case is squarely covered by the dictum of the Full
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Bench of this Court in T.Balaji cited supra.
7.1. In the said case, the Full Bench of this Court, first considered
what is the meaning of a case and counter case. In paragraph No.14, it is
held that a case and counter case are rival versions of the same
incident/transaction, one of which, must be necessarily false. The Full
Bench terms this as the Type–I cases. This apart, in paragraph No.17, the
Full Bench also enunciated a different category of ‘case and counter’ as
Type - II cases, where the case and counter case are rival versions of the
same incident/transaction in which both the parties have exceeded in
bounds of law and have committed offence each other. After considering
the necessity of unearthing truth and the binding nature of the Police
Standing Orders issued, detailed guidelines in paragraph No.58 and the
following are the directions which are given at the stage of completion of
the investigation:
“B. For the Courts
(a) Pre-Cognizance stage :
i. While entertaining an application under
Section 173(4) BNSS, 2023, the Magistrate shall
ensure whether the complainant had approached
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thesuperiopolice
r officersassetouttherein.
ii. If the Magistrate is satisfied that the
complainant had approached the superior police
officer as set out in Section 173(4) BNSS 2023, he
may proceed to take the application on file and
deal with the same under Section 175(3) BNSS
2023.
iii. Where a final report is filed in one case
and a closure report in the other case, the
Magistrate will follow the procedure in Bhagwant
Singh v. Commr. of Police, (1985) 2 SCC 537. Till
a decision in the protest petition is arrived, the
inquiry or the trial in the pending case where the
final report has been filed shall be kept in
abeyance.
iv. Where two final reports are filed in a case
and counter case, , it is the duty of the Magistrate
to scrutinize the final reports carefully. If it is
found that the final reports put forward
inconsistent rival versions of the same incident (ie.,
if one version is true the other must necessarily be
false), or where it is found that the IO has filed two
final reports mechanically without properly
investigating and finding out the true aggressor the
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Magistrateshallreturnthefinalreportsanddirect
the IO to come up with a definitive case.
v. In rare cases, where such final reports are
not screened out at the level of the Magistrate, and
cognizance has been inadvertently taken, such
orders may be challenged under Section 528 BNSS
2023 in which case the orders of cognizance may
be set aside, depending upon the stage of the cases,
with a consequential direction to follow PSO 566.
(b) Post Cognizance and Trial in a case and
case in counter:
i. If the Magistrate finds that the two final
reports are rival versions of the same incident, but
both parties are found to have engaged in acts of
aggression etc., he may take cognizance of both
final reports. In such cases, the Magistrate shall
follow the procedure prescribed in Ekambaram v.
Sundaramurthy and State, 1988 LW (Cri) 127,
which we have extracted in paragraph 56, supra.
ii. If one case is exclusively triable by a
Court of Session and the other case is triable by a
Magistrate, the Magistrate shall commit both the
case and counter case to the Court of Session for
trial as prescribed by Section 362 BNSS 2023
(Section 323 Cr.P.C), who shall thereafter proceed
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in accordancewith the directionscontainedin
paragraph 56 supra.”
7.2. Thus, applying the dictum of the Full Bench to the instance
case, at the outset, it can be seen that the two versions as extracted above
in detail are regarding one and the same transaction. They are rival
versions in contradiction with each other and both cannot be true and
certainly a case and counter. The investigating officer thus ought to have
found the true and correct version which is the purpose of the
investigation. On the other hand, the investigating officer had agreed
with both versions and filed two final reports.
7.3. The investigating officer ought to have verified the truth and
the veracity of the rival version. If she finds that one version is true and
the other is false, she ought to have filed final reports pointing out the
commission of the offence in one case and referring to the other case. If
she has found that both the parties have committed excesses and hit each
other and if one party is the aggressor and the other was a defender, then
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offenses should have been charged only as against the aggressor. After a
thorough investigation, if there is no aggressor and defender but both the
parties are aggressors and attacked each other she can file a final report
in both the cases, but, both the cases should not be inconsistent with each
other and should be a compatible common version in the both the cases.
7.4. Thus, the investigating officer should first come out with one
single version true version of the occurrence and then based on the same
it was open for her to file a final report (a) stating that the pappa’s family
was the aggressors and thus referring the complaint given by them and
pointing out to the offence of murder or culpable homicide and other
committed by them; (b) stating that Kannusamy’s family were only the
aggressors and the death was by way of right to private defence and that
the family members of Kannusamy alone are to be tried for the offences
of Hurt and the other offences; or (c) that this is a quarrel which arose on
account of the incident in which there is no real aggressor or defender
but both sides exceeded the limits and committed offences of culpable
homicide and hurt against each other.
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7.5. A perusal of the final reports filed by the investigating officer,
it can be seen that they contradict each other. In one case it is agreed that
Pappa’s family had a motive and from the morning itself, they were in a
murderous mood and attacked murdered Kannusamy. In the second case,
it is agreed that merely because Pappa had admonished the grandchildren
of Kannusamy he had attacked the said Pappa and thereafter the rest of
his family members attacked the family members of Pappa and attempted
to murder them. Thus, a thorough investigation was not conducted by
the investigating officer to unearth the truth and one correct version is
not at all unearthed by the investigating officer.
7.6. In that view of the matter, the final report filed in both cases
are unsustainable. As per the dictum of the Full Bench of this Court,
when such cases are brought to the notice of the Higher Forum at the
early stage, the Higher Forum can set things right by ordering a fresh
investigation. Therefore, though the prayer is made to quash one of the
final reports alone, both the final reports are liable to be set aside and the
matter is remanded back to the investigating officer to investigate afresh
thoroughly and find out one common correct version and come out with a
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definitive case.
8. The Result:
8. In view thereof, this Petition is disposed of on the following
terms:
i) the final report in P.R.C.No.9 of 2020 on the file of the Judicial
Magistrate, Elayangudi, arising out of Crime No.275 of 2018 and the
final report in P.R.C.No. 5 of 2020, on the file of the Judicial Magistrate,
Elayangudi, arising out of Crime No.274 of 2018, are set aside;
(ii) the first respondent, viz., the Inspector of Police, Elayangudi
Police Station, Sivagangai District, is requested to take up the matter for
fresh investigation thoroughly and the investigating officer shall come to
a definitive common truth and lay final reports accordingly in
compliance of the dictum of the full bench judgment in T. Balaji (cited
supra);
(iii) the said exercise shall be completed within a period of three
months from the date of receipt of copy of this order. Consequently,
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connected Miscellaneous Petition is closed.
01.10.2024
Internet : Yes
Index : Yes
NCC : Yes
LS
TO
1. The Judicial Magistrate,
Ilayangudi
2. The Inspector of Police,
Elayangudi Police Station,
Sivagangai District.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
D.BHARATHA CHAKRAVARTHY,J
LS
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ORDER
IN
Date : 01.10.2024
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