M. Krishnaraj and 2 Others (Petitioners) 'B' Party vs The State

Janarthanam, J.—This is a petition under S. 482 of the Code of Criminal Procedure by the "B" Party to quash the proceedings in C.C.8954 of 1987 on the file of the seventh Metropolitan Magistrate, George Town, Madras.

The 1st petitioner herein viz., M. Krishnaraj lodged an information before B-1-North Beach Police Station, Madras, in respect of an occurrence which took place on 23.9.1987 around 11.30 A.M. in front of Anchor Gate Building, Rajaji Salai, Madras-1 which was registered in Crime No. 787 of 1987 for offences under Ss. 323 and 324 of the Indian Penal Code against one E. Devadoss and three others. In respect of the same occurrence, the aforesaid E. Devadoss lodged an information before N-1-Royapuram Police Station against the petitioners herein, which was registered in Crime No. 737 of 1987 for an offence under S. 324 of the Indian Penal Code. Since the place of occurrence was within the jurisdiction of B-1-North Beach Police Station, the F.I.R. registered in Crime No. 737 of 1987 by N-1-Royapuram Police Station was transferred to B-1-North Beach Police Station which in turn registered the transferred F.I.R. in Crime No. 788 of 1987. The Sub Inspector of Police, B-1-North Beach Police Station, instead of completing the formalities of investigation in respect of both the crime numbers and filing a report either positive or negative under S. 173(2) of the Code of Criminal Procedure, adopted a short circuit method of charging both the parties for an innocuous offence of affray under S. 160 of the Indian Penal Code arraying the petitioners herein as "B" party and the other party as "A" party in the court below, giving arise to the present petition by the "B" Party.

Learned counsel for the petitioners would submit that the station House Officer of B-1-North Beach Police Station had abdicated his function enjoined upon him under law viz., investigation of the case and counter, and adopted a short circuit method of filing a report against both the parties under S. 173(2) of the Code of Criminal Procedure for the innocuous offence of affray under S. 160 of the Indian Penal Code and therefore it is, that the proceedings initiated before the Court below are liable to be quashed. In support of his argument learned counsel would place implicit reliance upon the provisions of Rule 588-A of the Madras Police Standing Orders, which is couched in the following terms:

588-A Charge sheets in case and counter cases - In a complaint and counter complaint obviously arising out of the case transaction the investigation 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 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 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-complainant, as the case may be, should be advised about the disposal by a notice in F.96 and to seek remedy before the specified magistrate, if he is aggrieved by the disposal of the case by the police.

From a bare perusal of the above rule it is crystal clear that in a complaint and counter complaint arising out of the same transaction, a mandate is cast upon the investigating officer to 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 finds untrue. If the investigating Officer finds that either of the courses is difficult, he should seek the opinion of the Public Prosecutor and act accordingly. A final report should be sent in respect of the cases 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 Form 96 and to seek remedy before the specified Magistrate if he is aggrieved by the disposal of the case by the police.

So far as the case on hand is concerned, notwithstanding the fact that the complaint as well as the counter complaint reveal the commission of cognizable offences, the respondent/investigating officer failed in his duty enjoined upon him under Rule 588-A of the Madras Police Standing Orders, which has now been sanctified into a rule of law to be followed by the Police as has been held by a recent Division Bench decision of this court in Kandaswami and others v. Samayathurai Criminal Appeal Nos. 715 and 716 of 1984 dated 28.4.1989 and others to which I was a party.

Prejudice is likely to be caused to the parties by the adoption of the short circuited procedure of charging both the parties for an offence of affray under S. 160 of the Indian Penal Code in the cause of one of the parties, not being aggressors and thereby not liable to be charged at all, likely to face the music of being punished for an offence of affray under S. 160 of the Indian Penal Code. In such circumstances, it cannot be said that the course adopted by the respondent/investigating Officer is not an abuse or misuse of the process of law. The petition, therefore, deserves to be allowed.

If the petition is allowed in so far as the petitioners are concerned, who are "B" Party, it is likely to cause prejudice to the other party viz., "A" party, who are not now before this Court. As such, interest of justice requires that the proceedings initiated before the Court below both against the present petitioners as "B" party as well as the "A" Party are liable to be quashed. In this view of the matter, the petition is allowed by quashing the entire proceedings in C.C. No. 8954 of 1987 on the file of the seventh Metropolitan Magistrate, George Town, Madras-1 against the petitioners as well as the other party.