The police must mandatorily follow PSO 566 in investigating case and counter cases, ensuring thorough investigations to avoid conflicting judgments.

ORDER :

(N. Anand Venkatesh, J.)

The genre of case and counter-case is not a new phenomenon. In Kautilya’s, Arthasastra cases and counter cases were dealt with only in a limited class of cases like robbery, duel etc., where there was a possibility of aggression on both sides. Kautilya said:

“In cases other than duel, robbery, as well as disputes amongst merchants or trade guilds, the defendant shall file no counter case against the plaintiff, nor can there be any counter case for the defendant.”

Though times have changed since the days of Kautilya, the central focus on the aggressor remains the same. In this reference, we are called upon to examine certain seminal questions relating to a case and counter case and the manner in which Courts and investigation agencies are required to handle them.

2. This Full Bench has been constituted pursuant to an order of the Hon’ble Chief Justice dated 26.03.2024, to answer the following questions of law:

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?

3.The circumstances giving rise to the reference are as follows:

a. When Crl.O.P 3922 of 2024 had come up for hearing before one of us (N.Anand Venkatesh, J) a trend was noticed whereby investigations in a case and a case-in-counter were not being conducted in line with the Police Standing Order No.566 (Old No. 588-A) which required the police to find out the real aggressor and file a final report only against such a person or persons. However, the police were filing final reports in both cases mechanically resulting in the burden being shifted to the Courts to plough through conflicting versions to decide who was the real aggressor.

b. It was also noticed that there were conflicting judgments of single judges on the issue as to whether PSO 588-A had any force of law and whether the investigating officers were enjoined to follow them while investigating a case and case in counter. In Vellapandy Thevar v State (1984 LW Cri 257), S.A Kader, J had quashed a final report for the failure of the investigation officer to follow the mandate of PSO 588-A. However, in V.R Ranganathan v State, T.N Singharavelu,J held that violation of the PSO did not vitiate the order of cognizance. In Pandurangam v State, (1987 LAW Cri 400) Ramalingam, J held that the PSO had no statutory force and that a failure to observe the PSO did not constitute an illegality. A few years later, in Krishnamoorthi v State, a Division Bench of this Court consisting of David Annoussamy and Janarthanam, JJ took a contrary view, without noticing any of the earlier decisions, and issued directions to the police to follow the requirements of PSO 588-A while investigating a case and case-in-counter. The pendulum swung the other way when in Karthikeyan v State, 1992 LW Cri 74, T.S Arunachalam, J held that the PSO had no force of law thereby essentially reiterating the earlier decision of this Court in Pandurangam v State, (1987 LW Cri 400). The attention of Arunachalam, J was unfortunately not drawn to the decision of the Division Bench in Krishnamoorthi v State.

c. After a decade, the pendulum once again swung the other way when a Division Bench of Prabha Sridevan and K.N Basha, JJ in Venthimuthu v State, (2007 2 MLJ Cri 405), reiterated the requirement of the police following PSO-588A and held that the omission to do so had resulted in a perfunctory investigation. However, in