IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.10.2024 CORAM THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Crl.O.P.No.26846 of 2024 & Crl.M.P.Nos.14901 & 14903 of 2024

1. K.Rajendran, 2. Madhubalan, 3. Gunasekaran, 4. Jaishankar, 5. Lakshmanan, 6. Parimala ... Petitioners/Accused 1 to 6 /versus/

1. The State Represented by, The Sub Inspector of Police, Ethappur Police Station, Salem District.

(Crime No.58 of 2024). ... 1^st Respondent/Complainant

2. Sathya. ... 2^nd Respondent/Defacto Complainant Prayer: Criminal Original Petition has been filed under Section 528 BNSS, pleased to call for records in C.C.No.236 of 2024 on the file of the Learned Judicial Magistrate No.I, Attur, Salem and quash the same.

For Petitioners : Mr.V.Krishnamoorthy.

For R1 : Mr.S.Udaya Kumar.

Government Advocate (Crl.Side)

O R D E R

The petitioner herein is an accused in C.C.No.236 of 2024 investigated by the Sub Inspector, Ethappur Police Station, Salem in Crime No.58/2023.

2. The present petition is filed to quash the final report on the ground that on the same transaction, the complaint against (i) K.Rajendran, (ii) Madhubalan, (iii) Gunasekaran, (iv) Jaishankar, (v) Lakshmanan, (vi) Parimala was registered in Crime No.58 of 2023.

3. The Learned Counsel appearing for the petitioner submits that being case and case in counter, arising out of same transaction, the Investigating Officer ought to have ascertain who is the aggressor and should have filed final report only against the aggressor and should have dropped action against the other party following Police Standing Officer 566. Whereas, in this case, both the complaints were investigated and final report filed without reference to the other complaint. Hence following the decision of the full bench of this Court in T.Balaji and others vs. The State Rep. by, The Inspector of Police, New Washermenpet Police Station, Chennai (Crl.O.P.No.4587 of 2023, dated

08.08.2024), the final report has to be quashed.

4. The Learned Government Advocate (Crl.Side) appearing for the

1^st respondent submits that, accused in case and case in counter, both are found to be an aggressors and therefore, two separate final report filed and pending before the Judicial Magistrate No.I, Attur in C.C.No.236 of 2024 and C.C.No.371 of 2024. The omission to refer about the counter case will not led to quash of the case. However, by following the guidelines issued by this Court in T.Balaji case cited supra, the Magistrate shall follow the procedure prescribed in Ekambaram v. Sundaramurthy and State reported in 1988 LW (Cri) 127 in case of this nature. The relevant portion of the full bench judgment is extracted below:-

56. In Ekambaram v. Sundaramurthy and State, 1988 LW (Cri) 127, David Annoussamy, J had laid down the following procedure for trial of a case and case in counter:

“In some rare cases where he finds himself to be in such a predicament, what he should do is, to try those cases separately, but immediately one after the other. When the first case is over, he should not pronounce judgment till the trial of the other case is completed. He cannot legally use the evidence of one case in the other case if it is not on record in the other case. But, if any relevant evidence comes to his notice in one case, which may be used in the other, he has the power to bring it on record in the proper manner in the other case also. The Magistrate can, at any time of the proceeding till the judgment is delivered, gather further evidence in the case. The Court has vast powers to this effect under Section 311 of the Code of Criminal Procedure and Section 165 of the Indian Evidence Act. In that way, one case will not be artificially isolated from the other and thus lead to injustice. The Court can come to the right conclusion in taking all the facts and circumstances of the transaction. The judgments should be pronounced in both the cases at the same time.”

Guidelines:

(b) Post Cognizance and Trial in a case and case in counter:

i. If the Magistrate finds that