CRL.O.P No.3922, 4587, 6052, 6154, 3081,2662, 6162, 6222, 2706, 6692,5382 of 2024 & Crl.OP.Nos.19312 & 11133 of 2023N.ANAND VENKATESH , JHeard Mr.V.C.Janarthanan, M.Mohamed Riyaz, Mr.K.Thiruvengadam,Mr.R.Hari Krishnan, Mr.C.Iyyapparaj and Mr.C.Arun Kumar.2.This is a case involving a case and a case-in-counter. Two FIR’s were registered by the respondent police in Crime Nos. 604 and 607 of 2021 resulting in two final reports in C.C.Nos. 248 & 740 of 2023 before the trial Court. The final report in one of these cases is now under challenge in this petition

CRL.O.P No.3922, 4587, 6052, 6154, 3081,2662, 6162, 6222, 2706, 6692,5382 of 2024 & Crl.OP.Nos.19312 & 11133 of 2023
N.ANAND VENKATESH , J
Heard Mr.V.C.Janarthanan, M.Mohamed Riyaz, Mr.K.Thiruvengadam,
Mr.R.Hari Krishnan, Mr.C.Iyyapparaj and Mr.C.Arun Kumar.
2.This is a case involving a case and a case-in-counter. Two FIR’s were registered by the respondent police in Crime Nos. 604 and 607 of 2021 resulting in two final reports in C.C.Nos. 248 & 740 of 2023 before the trial Court. The final report in one of these cases is now under challenge in this petition. This matter had come up for admission on 22.02.2024. While ordering notice and directing the proceedings to be kept in abeyance, this Court made the following observations:
“It is seen that there is a trend on the side of the Police where they do not strictly investigate the case in counter in line with PSO 588A (new Rule No.566).This Rule mandates the Police to find the real aggressor and to file the final report.However, the Police find it convenient to file final reports in both the case in counter and as a result, the burden is shifted on the Court to find out the realaggressor.The Police cannot shift the burden to the Court in finding outtheaggressor when the Rule mandates that it is the Police who will have to find out the real aggressor. That apart, there is also a practical difficulty in implementing the guideline issued by the Apex Court in Nathi Lal and others Vs. State of U.P. and others reported inMANU/SC/0736/1988. Hence, it must be seen if that judgment of the Apex Court was delivered by taking into account the real position as it existed in Uttar Pradesh. Some guidelines are required to be given by this Court in so far as dealing with a case in counter. Therefore, this Court is inclined to take this case as the test case and pass orders. This Court requests the Bar to assist the Court in this regard.”
3.A close examination of the precedents of this Court on the point reveals two divergent views. The earliest view is the decision of a Division Bench of this Court in
Goriparthi Krishtamma v Emperor (1929 MWN 881) wherein it was held as under:
A case and a counter case—arising out of the same affair—should always, if practicable, tried by the same court. Each party represent themselves as having been the innocent victims of the aggression the other. Neither will as prosecution witnesses admit that they retaliated on the other, for the obvious reason, that they are themselves on trial in the other case. As accused, they do not as a rule, let in any defence evidence, relying on the evidence they have given in the other case as prosecution witnesses. The results is that no court can grasp the real facts unless it tries
4.A similar view was taken by Jackson, J in Re: Krishna Pannadi, AIR 1930
Mad 190, but this decision was held by a subsequent bench in
PaladuguLakshminarayana v Tadiboyina Suryanarayana, AIR 1932 Mad 502, as applying to the facts of that case. In Thota Ramakrishnayya v State, AIR 1954 Mad
442, Ramaswami, J has, with great force and conviction pointed out as under:
“But occasionally two counter cases relating to the same incident one of which must be false, are sent to the sessions court for trial either by the same magistrate or by different magistrates. According to the procedure which it has been understood has been prescribed by Jackson J. in Krishna Pannadi, In re [ [1929] M.W.N. 883: Cr. 187] though I must repeat that I have great difficulty in believing that he really meant this both cases must be heard in full by the same Judge and assessors or by the same judge and jury before the assessors express any opinion or the jury gives any verdict in either. Let us see how this affects the Public Prosecutor, and it must be remembered that in every trial in sessions court the prosecution must be conducted by a Public Prosecutor. Let us suppose that the two cases relate to the murder of X, in the one case RamaswamiGoundan being the accused, in the other Palaniappa Naidu. If it be thought that this is an extreme instance to take, I can only say that I have known of two such counter cases of murder and have been invited to use the revisional powers of this Court to order that the man charged by the police with murder and a man charged by the accused person with the murder of the same victim be tried at a combined trial in the sessions court in accordance with the procedure supposed to have been prescribed by Jackson J. How is the Public Prosecutor to conduct himself in such circumstances? According to Krishna Pannadai In re [ [1929] M.W.N. 883: Cr. 187] it is not proper for him to suggest to the sessions judge that the case which appears to him to be true should be tried first; the two cases must be heard one after the other in a combined trial before the assessors express any opinion or the jury gives any verdict. Is the Public Prosecutor to conduct each case whole heartedly as if against a man whom he has reason to believe to be guilty? Is he to prosecute the case against RamaswamiGoundan in the ordinary way and then open the case against Palaniappa Naidu in some such way as this:
“For the last two days I have been endeavouring to prove to you that this murder was committed by RamaswamiGoundan, and I trust that of that I have completely satisfied you. It it now my duty to demonstrate that the story is entirely false and that the murderer was not RamaswamiGounden but Palaniappa Naidu. And of that too I trust that I shall convince you to your entire satisfaction.”
Or is he to adopt the attitude that he knows who was the murderer of the victim but that he is not going to let the Judge or the assessors or the jury into the secret; they must find it out for themselves? Or, is he to represent himself as entirely in the dark about the whole matter? Is he to say something of this sort?
“That a murder was committed, I think I shall have no difficulty in convincing you. The question is whether that murder was committed by RamaswamiGoundan or Palaniappa Naidu. All the resources of the Crown have been devoted to the investigation of that very serious question. But I regret to have to tell you that after months of patient labour we are still in the dark. We have no idea whatever which was the murderer. So we have decided to lay the whole facts before you and leave you to make your choice.”
Whichever method he adopts, it is likely that the proceedings will he reduced to a disgraceful and wicked farce. The Public Prosecutor will be required to run with the hare and hunt with the hounds, to appear alternatively in the same proceedings for the prosecution and for the defence and to be in the counsels of both, to ride two horses at once in a scandalous competition. If those were the duties of the Public Prosecutor, no honourable member of the profession would demean himself by accepting the office. Nor could these difficulties really be escaped by appointing two public prosecutors for the occasion, one to conduct the prosecution of each man. Would it be less scandalous that two counsel should appear for the Crown in the same proceedings each making out that the other’s case was false”
The learned judge went on to lay down the following principles: “The principles which can be evolved from these decisions can be compendiously set out as follows: If complaints of the offence of rioting be given by both the parties during investigation, the investigating officer should enquire into both of them and adopt one or the other of the two courses, viz., to charge the case where the accused were the aggressors or to refer both the cases if he should find them untrue in material particulars. If he finds that the choice of either course is difficult, he should seek the opinion of the Public Prosecutor of the District and act accordingly. A magistrate before whom such a case is charged by the police and a private complaint from the party whose case was referred, should hear both the cases together and commit both the cases to the Sessions even if only one of them is exclusively triable by a court of session. If, however, the magistrate feels that there is no acceptable evidence in both the cases, he should discharge the accused. If however in one case a more serious offence like S. 148 I.P.C. is made out then in the interest of justice, both the cases should be sent to the First Class Magistrate for disposal, and he may commit both the cases, or discharge the committal case and himself try the other or if he finds the committal case after recording evidence one triable by himself proceed to enquire into both and convict or discharge or acquit, the accused in both the cases. The Sessions Judge should, if both the cases had been committed, hear them in succession with different assessors and come to independent conclusions keeping as far as possible the evidence in the one case distinct from the other. If in respect of an occurrence, there is a variation in time, or place, or other circumstances warranting a reasonable inference that they are not parts of the same transaction, but that the earlier occurrence may even be a motive for the later one, then the two cases may be tried separately and the aforesaid rules of procedure need not be applied. If in respect of a single incident, two different versions are offered, and they are substantially divergent from one another, then it is the duty of the investigating officer to find out which version is true and charge that case only leaving the other version to be prosecuted if so advised after a referred charge-sheet being served on the complainant and in such cases also the rules for enquiry and trial as in case and counter should be followed. If in trials not exclusively triable by a court of session, a magistrate has to hear and dispose of the cases himself and he frames charges in one case and does not frame any charges at all in the other, it cannot be considered that the magistrate had made up his mind in the other case by not framing the charges and some kind of reasonable apprehension cannot be said to be created in the minds of the accused in respect of the other case where charges had been framed and transfer asked for on that ground.

5. The then Government of Madras appears to have acted upon the decision
   of Ramaswami, J by introducing PSO 588-A vide G.O.Ms.No. 182, Home, dated 23rd
   January I958 incorporating the aforesaid principles laid down by the learned judge. In VellapandyTheaver v State, 1984 LW (Crl) 257, a learned single judge followed the decision of Ramaswami, J and quashed a final report directing the police to follow PSO 588-A. However, in V.R Ranganathan v State, 1985 LW Crl 86, another learned single judge refused to follow the decision in VellapandyTheaver v State, 1984 LW (Crl) 257 on the ground that PSO-588A was not law and that violation of such administrative instructions to police officers would not vitiate the prosecution. Subsequently, inPandurangam v State, 1987 LW 400, another learned judge took the view that there was no conflict between the aforesaid two decisions.
6. When things stood thus, in Krishnamoorthi v State, 1992 LW Crl 415, a
   Division Bench of this Court while acquitting the accused followed the decision of Ramaswami, J in Thota Ramakrishnayya v State, AIR 1954 Mad 442, and PSO 588-A and observed as under:
   “It is clear from the above said Order what is the duty of the investigating officer when there is a case and a counter-case. It is found that these instructions are not followed by the police on the quasi-totality of cases. The learned Public Prosecutor would do well in bringing these instructions to the notice of the investigation officer in Tamil language in a clear manner, so that the investigating machinery is not making a perfunctory Investigation, when faces with the investigation of a case and a counter-case. So far as the case on hand is concerned, the investigating officer has not proceeded with the case according to the instructions given in the Madras Police Standing Orders noted above. He has simply suppressed one case and it is only at the time of his cross-examination that he cursorily referred to the other case, without explaining why he has chosen the version of PW.1 rather than that of the accused.”
7. In Venthimuthu v State, 2007 2 MLJ (Crl) 405, another Division Bench reiterated the applicability of PSO 588-A and held as under:
   “The Investigating Officer has to place on record before the Court complaint given by the accused. The procedure as per Order 588-A of the Madras Police Standing Orders which deal with charge-sheets in cases and counter cases has to be followed. He must adopt one of 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. If he finds the choice of either course is difficult, to charge one of the 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 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. When he proceeds on the basis of one 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 wants it to accept.”
8. However, in R. Velladurai v State, 2016 Cri LJ 3985, another Division Bench took the following view:
   “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.
   In view of the above well-settled position of law in the instant case at no stretch of imagination it could be held that filing of final report in both the instant cases would amount to illegality. We hold that the investigating officer, who was unable to find as to who was the aggressor, was right in placing all the materials before the Trial Court by way of two final reports and therefore, it was for the trial court to appreciate the evidence let in both the cases and to punish the guilty.”
   In arriving at the above conclusion, the Division Bench has observed that PSO-588-A is merely an administrative instruction having no force of law.
   9.Turning to the decisions of the Hon’ble Supreme Court, the decision in Nathilal v State of UP, 1990 Supp SCC 145, was a case from Uttar Pradesh. The observations made in the judgment deal with the procedure to be followed by the trial court while trying a case and counter case. This decision is not an authority for the proposition as to the procedure to be followed by the police while investigating a case and case in counter. Similarly, the decision in Sudhir v State of M.P (2001) 2 SCC 688 deals with a case from Madhya Pradesh and the procedure to be followed in the trial of a case and case in counter.Therefore, these two decisions are not an authority for the proposition on the procedure to be followed by the police in investigating a case and case in counter.
9. At this juncture, it is necessary to point out that the police investigation is a matter governed by the Code of Criminal Procedure, 1973 which is a Central Act whose source is traceable to Entry III of the Concurrent List in the 7th Schedule to the Constitution. The Code does not lay down any definite procedure to be followed for the investigation of a case and case in counter. Where there is no law holding the field it is open to the State to issue executive orders/instructions exercising executive power under Article 162 of the Constitution. In Paul Manoj Pandian v Veldurai, (2011) 5 SCC 214, this Court had arrived at an identical conclusion as in the instant case that administrative instructions did not have the force of law. The decision of this Court was reversed by the Hon’ble Supreme Court with the following observation:
   “The powers of the executive are not limited merely to the carrying out of the laws. In a welfare State the functions of the executive are ever widening, which cover within their ambit various aspects of social and economic activities. Therefore, the executive exercises power to fill gaps by issuing various departmental orders. The executive power of the State is coterminous with the legislative power of the State Legislature. In other words, if the State Legislature has jurisdiction to make law with respect to a subject, the State executive can make regulations and issue government orders with respect to it, subject, however, to the constitutional limitations. Such administrative rules and/or orders shall be inoperative if the legislature has enacted a law with respect to the subject. Thus, the High Court was not justified in brushing aside the Government Order dated 16-11-1951 on the ground that it contained administrative instructions.”

11.There is yet another aspect. The Government of Tamil Nadu has issued a fresh set of revised standing orders vide GO.Ms.No.362 dated 28.09.2020 and GO. Ms.No. 438, dated 29.10.2020 which have been issued in the exercise of power under Article 162 of the Constitution. PSO 588-A has now been reintroduced as PSO 566. The decision in R. Velladurai v State, 2016 Cri LJ 3985, has purported to follow a decision of the Hon’ble Supreme Court in State of Andhra Pradesh v Venugopal, AIR 1964 SC 33 wherein it was held that administrative instructions have no force of law. However, this position has undergone a paradigm shift in light of the subsequent decision in Paul Manoj Pandian v Veldurai, (2011) 5 SCC 214. Prima facie, as on date, it may not be possible to simply brush aside the Police Standing Orders on the ground that they are administrative instructions.

12. In the light of the above discussion, I am faced with two sets of decisions of Division Benches ie., Krishnamoorthi v State, 1992 LW Crl 415 and Venthimuthu v State, 2007 2 MLJ (Crl) 405, on the one hand, holding that the procedure under the PSO must be adhered and given effect to and R. Velladurai v State, 2016 Cri LJ 3985, on the other hand, holding that the PSO has no binding force. In the face of the aforesaid conflict, the only course available to me is to refer the case to a larger Bench. Considering the fact that there is a complete lack of uniformity in this very important issue concerning the investigative machinery of the State, there is an urgent need for an authoritative pronouncement of this issue by a larger Bench of this Court as cases of this genre crop up on a daily basis.
13. Accordingly, the Registry is directed to place the papers before the Hon’ble Chief Justice on the administrative side with a request that a Bench of appropriate strength may be constituted to resolve the following questions:
    i.Whether the police is required to mandatorily follow the procedure prescribed in Police Standing Order 566 while investigating a case and case in counter?
    ii. What is the effect of non-compliance with PSO 566? If and in
    what circumstances does non-compliance vitiate the prosecution?
    iii. If in the event of the Court holding that the procedure provided under PSO 566 is not mandatory, should the Court come up with a set of guidelines to ensure proper investigation in a case and a case-in-counter?
    iv. What is the procedure to be adopted by the Court trying offences in cases where the prosecution files a report under Section 173(2) Cr.P.C in both the case and case in counter?
    21.03.2024
    Index: Yes/No kp

N.ANAND VENKATESH.,J
kp
CRL.O.P No.3922,4587,6052,6154,3081,2662, 6162, 6222,2706,
6692,5382 of 2024 & Crl.OP.Nos.19312 & 11133 of 2023
21.03.2024