No Bar In Registering Case And Counter Case Arising Out Of Same Incident, IO Must Probe Both Versions According To Standing Orders: Madras HC

A full bench of Justice G Jayachandran, Justice M Nirmal Kumar, and Justice N Anand Venkatesh were answering a reference made to it relating to case and counter case and how the courts and investigation agencies were required to handle them.

“There is no legal bar in registering two FIR's in a case and a counter case arising out of rival versions of the same incident. Where rival versions are preferred an FIR may be registered for the rival complaints and the investigation officer is required to thoroughly investigate both rival versions by keeping in mind PSO 566,” the court observed.

The question that was referred to the full bench was whether the police were required to mandatorily follow the procedure prescribed in the Police Standing Order 566 while investigating a case and counter case and what was the effect of its non-compliance.

As per PSO 566, while investigating a complaint and counter-complaint arising out of the same transaction, the investigating officer was to enquire about both cases and either charge the case where the accused were the aggressors or refer both cases if he finds them untrue. The police were thus required to find the real aggressor and file a final report only against such a person.

The court noted that a case and countercase had to arise from the same incident and if a final report was filed in both the cases, it would result in a grave miscarriage of justice. The court added that the object of bringing the PSO under the executive power of the State was to avoid such situations as such a procedure would be detrimental to the court. The court thus noted that the PSOs were binding on the police and the police was required to be mandatorily followed while dealing with a case and case in counter.

Though a question was raised about the state's power to issue such a Government Order introducing the PSO, the court noted that since neither the CrPC nor any other statute, the State was competent to pass the executive order in respect of the subject.

The court observed that there was no legal bar in registering two FIRs in a case and a counter-case arising out of rival versions of the same incident. In such cases, the court added that the investigation officer was required to thoroughly investigate both rival versions keeping in mind the PSO.

The court added that if the IO refuses to register a case on the rival version, the rival complaint was at liberty to approach the superior police officer and thereafter the Magistrate under Sections 173(4) and 175(3) of BNSS 2023. Further, the aggrieved rival complainant may also file a complaint before the jurisdictional magistrate for proceeding under Chapter XVI of the BNSS 2023.

The court observed that if the rival versions of the same incident are inconsistent with each other, the IO was duty-bound to come forward with a definitive case and could not file a final report in both cases. If the IO finds that one version is true and the other is false, he shall file a final report in the former case and refer to the latter case as a mistake of fact/law. The court emphasized that the IO was to specifically state the gist of the counter case and the result of the investigation in that case.

Further, the court held that when the IO found that the divergent versions of the same incident were not absolutely inconsistent with each other, he should file a final report only against the aggressor. The court added that when the IO was unable to find the real aggressor or when both the parties were the aggressors and exceeded the bounds of the law, the IO could file a final report in each of the cases.

Finally, the court held that when the case and counter-case arose out of factious rioting, communal and political clashes, etc, the IO was the follow PSO 703(i) and investigate the case thoroughly. The court underlined that the IO was to adhere to the PSO scrupulously and failure to follow the standing orders would cause departmental action to be initiated against him.

Counsels: Mr.P.S.Raman, the learned Advocate General assisted by Mr. R. Muniyapparaj, Mr. V.C. Janardhanan, Mr. Sharath Chandran, Mr. Aiyapparaj and Mr. G.R Hari

Citation: 2024 LiveLaw (Mad) 309

Case Title: T Balaji v The State

Case No: Crl OP 4587 of 2023 (batch)