Vellapandy Thevar and Others vs State

S.A. Kader, J.—Crl. M.P. No. 4487 of 1983 has been filed by accused 1 to 13 to quash the proceedings in C.C. 151 of 1983 on the file

of the Assistant Sessions Judge, Tenkasi and Crl. M.P. 5503 of 1984 has been filed by accused 1 to 6 to quash the proceedings in C.C. 132 of

1983 on the file of the II Additional Sessions Judge, Tirunelveli. As both these prosecutions arise out of the same transactions, they may be dealt

with together.

On 24th June, 1982 at about 10:30 a.m. in South Street, at Thurumangadur village, within the jurisdiction of the Police station of Keerakeralam

Pudur, in Tirunelveli Dt., there was a fight between the two groups of persons, viz., the Petitioners and others in Crl. M.P. 4437 of 1983 on the

one hand and the Petitioners in Crl. M.P. 5503 of 1984 on the other. Several persons on either side were injured and one Chelladurai belonging to

the party of the Petitioners in Crl. M.P. 4437 of 1983, died of the injuries sustained by him. One Tmt. Ramasundaram, mother of the deceased

Chelladurai, gave a report at the police station and the Sub Inspector of Police registered it as Crime No. 64 of 1982 against the Petitioners in Crl.

M.P.5503 of 1984 under Sections 147, 148, 324 and 302 , Indian Panel Code and this is pending trial in S.C. 132 of 1982 on the file of the II

Additional Sessions Judge, Tirunelveli. One Thangathai wife of the fourth Petitioner in Crl. M.P. 5503 of 1984 gave a complaint before the police

at Veerakoralamurpudur. against the Petitioners 1 to 8 in Crl. M.P. 4437 of 1983 and the same was registered as Crime No. 65 of 1982 under

Sections. 147, 148, 427, 337 and 307, Indian Panel Code and it is pending trial in C.C. 151 of 1983 on the file of the Assistant Sessions Judge of

Tenkasi. The Inspector of Police enquired into both these complaints and filed a charge-sheet against the Petitioners in Crl. M.P. 5503 of 1984 for

offences under Sections 147, 148, 427, 324 and 302, Indian Panel Code in respect of Crime No. 64 of 1982 and another charge-sheet against

the Petitioners in Crl. M.P. 4437 of 1983 for offences under Ss. 147, 148, 427, 327 and 307, Indian Panel Code in respect of Crime No. 65 of

1982.

The accused in S.C. 151 of 1983 have filed Crl. M.P. 4437 of 1983 to quash the proceedings in C.C. 151 of 1933 and the accused in S.C.

132 of 1983 have filed Crl. M.P. 5503 of 1984, to quash the proceedings in S.C. 132 of 1983. It is urged by the learned Counsel on both sides

that the Inspector of Police has not followed the statutory provisions of O. 588-A of the Madras Police Standing Orders and hence both the

prosecutions must be quashed.

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 Panel 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 Panel 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 cans 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 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 riling 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 Panel 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 Panel 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.

As pointed out by this Court in Thota Ramakrishnayya and Others Vs. The State,

It is improper for the police to prosecute at 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 be prosecuted honestly either by the police or the public prosecutor.

The course adopted by the investigating officer is not only improper, but also bad in law. The prosecution launched by him in Cr. No. 65 of 1982

against the Petitioners in Cr. M P. 4437 of 1983 has to fail and has to be quashed. There is no ground whatsoever to quash the proceedings in S.

C. 132 of 1983 against the Petitioners in Cr. M. P. 5503 of 1984.

In the result Crl. M. P. 4437 of 1983 is allowed on the proceedings in C.C. 151 of 1983 on the file of the Assistant Sessions Judge, Tenkasi

are quashed. The police are directed to give a final report in the matter in accordance with Order 588-A of the Madras Police Standing Orders

and the counter complainant Thangathai, bedeviled to seek remedy before the court, if aggrieved by disposal of the case by the Police, as pointed

out in Order 588-A . Crl. P. 5503 of 1084 is dismissed.