Cri. N.P. Nos. 3861 and 4041 of 1989

22nd July, 1991.

Petitioner Counsel: Mr. V. Sairam and P. M. Sundararn, for
Respondent Counsel: Mr. I. Subramaniam, Addl, Public Prosecutor, in both Petitions.

Cases Cited:
1990 Mad LW (Cri) 525 [Para 14]
(1989) 1 Crimes 458,1988 Mad LW (Cri) 127 [Para 12]
1988 Mad LW (Cri) 467 [Para 18]
1988 Cri LJ 914,AIR 1988 SC 805 [Para 11]
1987 Mad LW (Cri) 400,1986 Mad LJ (Cri) 451 [Para 17]
1985 Mad LW (Cri) 86,1985 TLNJ 107 [Para 15]
1985 Mad LW (Cri) 181 [Para 18]
1984 Mad LW (Cri) 257 [Para 10]
1981 Cri LJ 712,1981 SCC (Cri) 407,AIR 1981 SC 1007 [Para 13]
1979 Mad LW (Cri) 165 [Para 9]
1964 (1) Cri LJ 16,AIR 1964 SC 33 [Para 17]
1955 Cri LJ 526,AIR 1955 SC 196 [Para 7]
1954 Mad LW (Cri) 9 [Para 5]

JUDGMENT

ORDER :-These two petitions are disposed of together by a common order, since the question raised is identical,

2. Both these petitions have been filed under S. 482, Cr. P. C. to call for the records in pending prosecutions and quash the proceedings therein as not maintainable on the sole ground that the investigating Agency had not followed the provisions of police, Standing Order (for short 'P. S. O.') 588A.

3. Facts in each of the petitions need not have to be stated, for, both the counsel fairly state that in respect of the same incident, two complaints had been given by opposite parties both of which resulted in final reports being filed by the investigating Agency.

4. The question, whether non-observance of the provisions of P.S.O. 588A would constitute illegality comes up for consideration quite often and it will be better to set at rest any controversy so that similar petitions canvassing this issue could be avoided in future.

5. All the decisions of this Court and a few of the apex Court have been placed before me. It is better to initially look into the law enunciated by the Supreme Court about the extent of validity of P.S.O. In State of Andhra Pradesh v. Venugopal, AIR 1964 SC 33 : (1964 (1) Cri LJ 16) the Supreme Court was concerned about the statutory force of P.S.O. 145. The observations of the Supreme Court need extraction.

"It is contended that the provisions of the Code of Criminal Procedure for investigation of Crime are superseded by this Standing order and so the investigation by the Inspector, C.I.D., was illegal. In our opinion, there is no substance in this argument. It appears to us that this standing order is nothing more than administrative instructions by the Government of Madras and has not the force of law. It is worth noticing in this connection that in the Madras Police Standing Orders as published by the Government of Madras it is mentioned in the prefatory note that the order marked with asterisk were issued by the Inspector General of Police under S. 9 of the Madras District Police Act. The Standing O. 145 is not marked with asterisk and could be safely held that it was not issued under S. 9 of the Madras District Police Act. The marginal note against the order as pointed shows that it was issued by a Government order of the Home Department dated October 12, 1985. It does not appear that this was done under any statutory authority. There can be no doubt that quite apart from the fact that the Government may and often should issue instructions to its officers, including police officers, such instructions have not, however, the authority of law. We are not satisfied therefore that the standing order No. 145 had the force of law.

We are further of opinion that in any case, the requirement of this order was merely directory and not mandatory. Non-compliance

with the provisions of this order, therefore, does not make the investigation of the case ilegal."

It is quite true that P.S.O. 145 does not contain an asterisk mark, while P.S.O. 588A contains the said mark. The Supreme Court observed, that since P.S.O., 145 had not been marked with asterisk, it can safely be held that it was not issued under S. 9 of the Madras District Police Act.

6. There is no controversy that P.S.O. 588A has been issued under S. 9 of the Madras District Police Act. If that be so, it has to be decided, whether the asterisk mark would make any difference to hold that unlike P.S.O. 145, P.S.O. 588A will have to be deemed to be mandatory.

7. Before this question is answered, a quick survey of the decisions rendered by this Court will be needed. In A. R. Veerapandian v. State by the Collector of North Arcot at Vellore, 1979 LW Cri 165, Paul, J., while considering P.S.O. 145, observed thus :

"The Madras police standing orders do not show that they were rules framed under any statute. Prima facie, they appear to be administrative orders relating to the work of the Police Department. The Tamil Nadu District Police Act does not confer any powers to frame rules under the Act....... An enquiry under O. 145 of the Police Standing Orders which prescribes the procedure to be adopted in regard to charges of torture or causing death or grievous hurt against Police Officials, cannot be said to be a rule framed under S. 50 of the Tamil Nadu District Police Act."

We are not now concerned with the provisions of the Madras City Police Act, which has also been referred to by the learned Judge in the aforesaid decision.

8. In Thota Ramakrishnayya v. State (1954 MWN Cr 9) P. N. Ramaswami, J. thought it fit to make certain observations as to how a complaint made and a counter complaint made, have to be dealt with the Investigating Agency. At that time, P.S.O. 588A was not available. Mr. V. Sairam, learned counsel for petitioners in Cri M.P. No. 3861/1989, represents that P.S.O. 588A was the outcome of the decision in Ramakrishnayya's case. The learned Judge observed, that it is improper for the police to prosecute at the same time two counter cases in regard to the same occurrence, one of which must be false. The Police cannot charge both cross-cases and must either find out the truth and charge that version which is true, or if they are unable to do so to throw out both the cases or charge one version leaving it open to the aggrieved party to resort to his own remedies. If he finds out 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 had been referred should hear both the cases together and commit both of them to the Sessions, even if only one of them is exclusivery triable by a Court of Session. The procedure suggested is salutary and may help the Investigating Agency when they are confronted with two complaints in respect of the same occurrence.

9. Kader J. has occasion to consider the effect of non following of the procedure contemplated under P.S.O. 588A Vellapandy Thevar v. State, 1984 LW Cri 257. The learned Judge did not go into the question whether P.S.O. 588A had statutory force. After referring to the judgment of P. N. Ramaswami, J. in Ramakrishnayya's case Kader, J. held that the Investigating Officer had evidently contravened the express provisions of P.S.O. 588A which laid down, that in the case of doubt he ought to refer the matter to the opinion of the Public Prosecutor and act accordingly. The learned Judge further observed that the Investigating Officer had to enquire into both the complaints, find out who were the aggressors and file a charge sheet against them or refer both the cases if he found them untrue. Only if that course is not adopted he had to obtain the opinion of the Public Prosecutor and act accordingly. That was a case where the Investigating Officer chose to obtain the opinion of the Public Prosecutor but failed to act in accordance

with the opinion offered. On the facts of the said case, the learned Judge concluded :-

"The course adopted by the Investigating Officer is not only improper, but also bad in law."

10. The very same question cropped up before Singaravelu, J. in Ranganathan V. R. v. State (1985 LW Cri 86). The decision of Kader, J. was placed before Singaravelu, J. but the latter with respect declined to agree with the reasoning of the former, The question of agreement or disagreement may not loom large for obviously, Kader, J. had no occasion to consider whether P.S.O. 588A had statutory force. While steering clear of the dissent of Singaravelu, J. in Ranganathan's Case, the other observations regarding Validity of P.S.O. 588A need extraction :-

"The police Standing orders cannot be said to be a statute but only a set of rules framed for the guidance of the investigating officers and, therefore, a violation of a standing order in the matter of investigation will not constitute an illegality. In other words, a defect or an irregularity in investigation, however serious, had no direct bearing on the competence or the procedure relating to the cognizance of the trial."

It was further observed.

"...,.........it cannot be said that taking cognizance of an invalid police report is a nullity. The error, if at all, is only in a proceeding antecedent to a trial and it cannot therefore affect the legality of the cognizance by the trial that follows :-

The learned Judge in that context referred to the settled law enunciated in H. N. Rishbud v. State of Delhi, AIR 1955 SC 196 : (1955 Cri LJ 526)."

11. Janarthanam, J. had considered the effect of contravention of P.S.O. 588A by the Investigating Agency in a case of complaint and counter-complaint, in Justin v. The State Represented by the Inspector of Police, 1988 LW Cri 467. The observations are :-

"The Investigating Officer in this case has evidently contravened the express provisions of 588A of the Madras Police Standing orders in Charge-sheeting both the cases. The result is that there are now two prosecutions in respect of the same matter against opposite parties. The course adopted by the Investigating Officer is not only improper, but also bad in law."

There were the very observations made by Kader, J. in Vellapandy Thevar's Case. Janarthanam, J. also had no occasion to consider the statutory force or otherwise of P.S.O. 588A.

12. David Annoussamy, J., in Ekambaram v. Sundarmurthy, 1989 (1) Crimes 458 while considering the procedure to be followed by the Investigating Officer in respect of complaints of two rival parties in respect of the same transaction, held as follows :-

"If one case comes to the Magistrate and another case goes to the police and it is made unknown to the Magistrate that a counter case is pending investigation before the Police Officer, the best course for the Magistrate is to forward his case to the Police Officer under the power conferred on him under S. 202 of the Code of Criminal Procedure, in which case, the Police Officer will follow the Standing Order referred to above. If for the reason or the other, both the cases come before the Magistrate, without one having been screened out by the investigating officer, the Magistrate has to make his preliminary scrutiny of both the cases and discharge the accused in one of the cases, if the records available before him and the information he is entitled to gather before framing the charges justify such a course. If the above provisions are properly followed, the Magistrate will be rarely in the predicament of trying the case and the counter case in respect of the same transaction.

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."

The learned Judge made these observations, after referring to P.S.O. 588A. The procedure to be followed was considered, but the

statutory force of this order did not attract the attention of the learned Judge.

13. K.M. Natarajan, J. in Mangala Thanaraj v. State represented by Inspector of Police, 1985 LW (Cri) 181 quashed the first information report on the ground that its registration was in contravention of P.S.O. 145. That case related to a complaint against an Inspector of Police, for having committed rape. Without making a formal investigation, the Superintendent of Police directed the Inspector of Police to register a case under S. 376, I.P.C. The learned Judge observed that, by quashing the first information report, the enquiry conducted by the Sub-Collector and Revenue Divisional Officer would not be affected: it had to be continued under P.S.O. 145, on the basis of the complaint given by the alleged victim. As far as P.S.O. 145 is concerned, it can easily be said, that on the enunciation of law by the Supreme Court in State of Andhra Pradesh v. Venugopal, AIR 1964 SC 33 : (1964 (1) Cri LJ 16), it does not have any statutory force. In any case, the requirement of that order was merely directory and not mandatory.

14. I had occasion to consider P.S.O. 145 in N. George v. R. Krishnaswami, 1990 LW Cri 525. Following the enunciation of law by the Supreme Court, I held that P.S.O. 145 did not have any statutory force and, therefore, proceedings challenged on the ground, that the Magistrate was not competent to take cognizance of the offence under S. 352 read with S. 34, I.P.C. was rejected.

15. The last of the case to be referred to will be the pronouncement of S.T. Ramalingam, J. in Pandurangam v. The State by Inspector of Police, Thirukazhukundram, 1987 LW Cri 400. In an exhaustive judgment, the learned Judge had taken note of the prior decisions of P. N. Ramaswami, J., Kader, J. and Singaravelu, J. and ultimately concluded, that P.S.O. 588A had no statutory force and the non-observance by the Investigating Officer to follow the said P.S.O. was not an illegality. The learned Judge entirely agreed with the view expressed by Singaravelu, J., while pointing out that there was practically no conflict between the views of Kader, J. and Singaravelu, J. since Kader, J. had not gone into the vires of P.S.O. 588A. The learned Judge, after eatracting S. 9 of the Madras District Police Act which enabled the Director General of Police to make rules so as to control the police force in the State, observed that the said section did not enable the Director General of Police to frame a police standing order in the nature of P.S.O. 588A.

16. Now that the case law placed before me had been analysed, the question that remains to be considered in whether the asterisk mark in P.S.O. 588A will make any difference to distinguish the judgment of the Supreme Court in State of Andhra Pradesh v. Venugopal, AIR 1964 SC 33 :(1964(1) Cri LJ 16) which had taken the view that P.S.O. 145 did not have statutory force, since it did not contain the asterisk mark and, therefore, could be safely, held as one not issued under S. 9 of the Madras District Police Act. S. 9 of the Madras District Police Act reads as hereunder:-

"Director General to Control Force and make Rules- The Director General may, from time to time, subject to the approval of the State Government frame such orders and regulations as he shall deem expedient, relative to the general government and distribution of the force, the places of residence, the classification, rank and particular service of the members thereof; their inspection, the discription of arms, account rements and other necessaries to be furnished to them; to the collection the communicating intelligence and information; and all such other orders and regulations relative to the said Police force as the said Director-General shall, from time to time, deem expedient for preventing abuse or neglect, and for rendering such force efficient in the discharge of all its duties."

A reading of this section under the head Director-General to control force and makes rules' does not anywhere refer to the scope of framing rules to govern investigation in a case and counter. The Act itself was intended for the better regulation of the police within the State of Tamil Nadu. The object was to

reorganise and make the Tamil Nadu Police Force, a more efficient instrument for the prevention and detention of crime. Obviously, in terms of S. 9 of the Madras District Police Act, P.S.O. 588A could not have been validly passed. The presence of asterisk will neither invest nor enhance the power of the Director General of Police, which he did not possess under S. 9 of the Act. P.S.O. 588A was added to P. S. O. 588 by G.O. Ms. No. 182 Home dated 2-1-1958. P. S. O. 588A carries an asterisk mark and in the prefaratory note to Madras Police Standing Orders, Volume I, 1960, it is stated,

".......orders marked with asterisk are issued by the Inspector General of Police, under S. 9 of the Madras District Police Act XXIV of 1859 with the approval of the Government."

This position has been noticed by S.T. Ramalingam, J. It looks apparent that asterisk marks were given whenever approval of the Government was obtained. So the presence or absence of asterisk mark may not change the statutory validity of P.S.O. and more so when such power is not conserved under S. 9 of the Madras District Police Act. 1 entirely agree with S. T. Ramalingam, J., that the Director General of Police could not have made P.S.O. 588A in the nature it exists, under S. 9 of the Tamil Nadu District Police Act.

17. Once this conclusion is arrived at, the judgment of the apex Court steps in and there could be no difference then between P.S.O. 145 and P.S.O. 588A. Chapter II of the Code of Criminal Procedure invests the police with the statutory rights to receive and record information of the commission of a cognisable crime and carry on investigation, before a prosecution is launched. Police Standing Orders cannot override the provision of the Code of Criminal Procedure. In State of Punjab v. Rajkumar, AIR 1988 SC 805 : (1988 Cri LJ 914) after considering the nature and purpose of R. 16.38 of the Punjab Police Rules, the Supreme Court held :

"The rules were not intended to replace and cannot certainly override the provisions of the Criminal Procedure Code. In State of Punjab v. Charan Singh, 1981 SCC Cri 407: (1981 Cri LJ 712) it was declared that R. 16.38 cannot govern criminal prosecution, against the members of the police as it could not override the provisions of the Code of Criminal Procedure. The Punjab Police Act, under S. 12, made a provision for the Inspector General of Police, subject to the approval of the State Government to frame such orders and rules, as stated in the said section, and the Punjab Police Rules were framed in the exercise of the powers conferred under S. 12 and S. 7 which dealt with the appointment, dismissal, etc. of inferior officers. This provision appears akin to S. 9 of the Madras District Police Act. The net result is that P.S.O. 588A will have to be held as only directory and not mandatory. P.S.O. 588A is nothing more than administrative instructions and it cannot have the force of law. The non-following of the procedure prescribed under P.S.O. 588A will not constitute an illegality to quash the impugned prosecutions. The law laid down by the Supreme Court, coupled with the lack of power under S. 9 of the Tamil Nadu District Police Act to issue P.S.O. 588A as a statutory mandate, would answer the question involved and here reference to a Division Bench, does not arise.

18. Administrative instructions in P.S.O. 588A issued on the basis of the decision of P. N. Ramaswami, J. in Ramakrishnayya's case, commend observance, but merely because the provisions of the order have not been followed in a particular case by the investigating Agency, that would not constitute illegality to quash the prosecutions launched. The decisions rendered by P. N. Ramaswarni, J. in Ramakrishnayya v. State, 1954 MWN Cr. 9; David Annoussamy, J. in Ekambaram v. Sundaramurthy, 1989 (1) Crimes 458 and S.T. Ramalingam, J. in Pandurangan v. State by Inspector of Police, Thirukazhukundaram, 1987 LW Cri 400 have dealt with the procedure to be followed in cases and counter, taken on file either on the basis of two final reports or one final report and not her private complaint.

19. The question of prejudice, if any, to the case of the petitioners in both these petitions due to non-observance of P.S.O.

588A will be a question of fact, to be canvassed and considered, after evidence is brought on record. On the score of a possible prejudice, trial cannot be halted or avoided.

20. In view of my decision that P.S.O. 588A has no statutory force, both these petitions will have to be necessarily dismissed and they are accordingly dismissed.

Petition Dismissed