Introduction
A cross-criminal case or a counter criminal case refers to an interesting situation wherein two criminal cases relate to the same incident and/or happening at the same location. Any man of reasonable prudence recognises it to have occurred together or at the same time either in whole or in parts.
This counter criminal case is a complex legal procedural situation that conventionally occurs in many cases and happens to not have been addressed adequately. The Code of Criminal Procedure, 1973 (CrPC)1provides for different types of trials and their consequent procedure. The closest provision that could be invoked pertains to provisions relating to joint trials but, the same is not designed exclusively and therefore incapable of dealing with counter criminal cases.
According to the common law jurisprudence, an accused is presumed to be innocent until proved guilty and the standard of proof is beyond all reasonable doubt. In a counter criminal case, an accused in one case could pose as a victim in another. Henceforth, it poses complicated logical questions as to the presumption of innocence and conclusion of facts.
The authors through this paper attempt to bring out the nuances of a cross-criminal case/counter criminal case. Part II discusses the position of law in India as the Supreme Court through a few notable decisions has tried to address this issue, thereby setting up the tone for further discussions. Part III briefly describes certain problematic instances in counter cases, strategies that are being adopted to overcome, and tries to explore the crucial role of the participants — the courts, the prosecutors, and the investigators who are material to the justice-delivery system. Part IV concludes with suggestions on types of reform that may be considered to address the issue.
Position of law
In India, the courts have made an earnest attempt in formulating a procedure for dealing with counter criminal cases recognising the absence of any specific provisions.
One of the earliest cases2, even before the commencement of the Code of Criminal Procedure, 1973, was dealt with by the Madras High Court which had taken the view that a case and counter-case derived from the same affair should be tried by the same court to the extent possible. In this case, each party might represent themselves as the innocent victims of the act of the other.
Furthermore, in Krishna Pannadi, In re3, the Madras High Court had once again expressed its concern for not having a proper procedure to deal with counter criminal cases and held that the Judge should hear both cases and not pronounce the judgment till both the cases are being heard. The Court felt that this way it could prevent two contrary judgments on the same facts and avert the danger of an accused being convicted without hearing the whole facts. The High Court had also remarked that counter criminal case procedure is against the cardinal principle of the law holding that facts on one case should not be considered in the other case. The High Court further observed:
… To take an illustration, suppose in the first of the cases the accused succeeds in showing that the prosecution has failed to prove its charge, and then in the second case the same accused as complainant goes into the witness box and breaks down in cross-examination to convince the court that the truth lies with the other side: Can the court be expected to dismiss this circumstance from its mind, and if it does not do so, what legal justification is there for importing it into the case already heard?4
In the instant case, the same prosecutor conducted the prosecution of both the cases numbered 157 and 158respectively. Upon the Magistrate first trying Case No. 158 which led to a conviction the prosecutor consequently withdrew Case No.157. Subsequently, upon appeal, the Sessions Judge who heard the matter found no prejudice to the accused in the matter. The Sessions Court even went to extent of saying that the accused in Case No.158 which resulted in conviction would have called and examined all his prosecution witnesses in Case No.157 as defence witnesses in Case No.158 itself. The High Court5 rightfully repelled this view of the Sessions Court thereby holding that the accused in Case No.158 cannot be compelled to examine all his prosecution witnesses in Case No.157 as a defence witness in Case No.158 as he may wish to avoid an earlier cross-examination of his witnesses. Moreover, the Court also held that the accused in Case No. 158 might not have been warned by the trial Judge that if he were against him, Case No. 157 in which he is a victim would be dropped. The Madras High Court had finally ordered a retrial in this case.
The Madras High Court has taken a view that in the case of counter-case both cases should be considered as one case by legal fiction and that only the legislature can intervene in this matter. Whereas these decisions were rendered before the enactment of the Code of Criminal Procedure, 1973, the legislature had somehow missed on this important aspect of procedural law.
Further again in Nathi Lal v. State of U.P.6, the Supreme Court had to come up with certain guidelines to be followed in counter-cases after the Code of Criminal Procedure, 1973 came into force realising the absence of a such provision in the then recently codified legislation.
In Nathi Lal v. State of U.P.7, the Supreme Court issued the following guidelines:
(1) The same Judge should try both cases.
(2) The learned Judge should hear one case after the other.
(3) The evidence should be heard first and then the Judge should go to hear the arguments. However, he should reserve the judgment in that case.
(4) He should then hear the counter-case, record the evidence, and hear the arguments. Here he should reserve the judgment.
(5) Later pronounce two separate judgments.
(6) However, the evidence recorded, or arguments made in one case cannot be looked into while deciding another case.
(7) The Judge should pronounce both the judgments one after the other.
With all humbleness, the authors of this paper find the view of the Supreme Court of referring to the evidence in the cross-case while deciding one case may not result in finding the truth. The authors are raising the same doubts as those raised by the Madras High Court in Krishna Pannadi, In re8. How can it be logical if the court is not considering the evidence in another case when both are two different versions of the facts? The authors even doubt the necessity of conducting a trial by the same court when one case is not influencing the other. The criminal cases are to be proved beyond all reasonable doubts and henceforth if A alleges that B attacked him and B had a counter-case that A attacked him; the criminal court can acquit both of them if the court is not satisfied beyond all reasonable doubts about both the stories. However, it does not mean that the court need not consider the evidence in the other case.
The problems and legal strategies
When there is a lack of proper provision the court has to design a procedure without disturbing the existing norm that one case should influence the other case. Given below is the list of instances where the ruling of the Supreme Court had caused some practical difficulty.
Cases involving different triability
In another notable decision of the Supreme Court of Sudhir v. State of M.P.9 wherein the problem was that one among the case was exclusively triable by the Court of Session as it involved the charge of Section 30710 IPC while the other cross-case was triable by Judicial Magistrate. In this case, the Chief Judicial Magistrate committed both the cases to the Court of Session while the Court of Session transferred the case under Section 228(1)11 of the Code of Criminal Procedure, 1973 to the Chief Judicial Magistrate.
The Supreme Court explained Section 228(1)(a) and interpreted that the expression “he may” indicates that a case not exclusively triable by the Court of Session may be transferred to the Chief Judicial Magistrate or any other Judicial Magistrate of First Class. The Court held that it is an option and discretion of the Court of Session and in cases of counter-case where one is a case triable exclusively by the Court of Session and the other is not, the guidelines in Nathi Lal v. State of U.P.12 should be followed and both the cases are to be tried by the Court of Session. The Supreme Court held that the Court of Session can try any offence under Section 2613 of the Code of Criminal Procedure, 1973. Moreover, the Court even held that a Judicial Magistrate may invoke Section 32314 of the Code of Criminal Procedure, 1973 and commit the counter-case along with the case triable exclusively by the Court of Session. Section 323 of the Code of Criminal Procedure, 1973 empowers a Magistrate to commit a case to the Court of Session during inquiry or trial if he finds that the case ought to be tried by the Court of Session.
The expression “ought to be tried by the Court of Session” could be interpreted as different from exclusively triable by the Court of Session. Henceforth, this kind of counter-case could be committed to the Court of Session. In State of M.P.v.Mishrilal15, the Supreme Court reiterated the necessity of following the guidelines in Nathi Lal v. State of U.P.16 and held that in cross criminal cases the same Judge should try both the cases.
Cases involving presumption of culpability
Some enactments like the Protection of Children from Sexual Offences Act, 2012 (POCSO)17 have presumptions against the accused. In such situations, the problem is much more complicated. If a counter-case arose in such kinds of cases, there would be great difficulty in applying the law. The POCSO Act, 2012 is gender neutral. There is no exception given to child offenders, of course, the Juvenile Justice (Care and Protection of Children) Act, 201518 would be available in appropriate cases. If both children involved in a sexual act (consider both above 16 years also) claim sexual abuse from the other side as a case and counter-case, it would be a debatable legal issue.
Role of the court
The Magistrates could play a vital role in dealing with counter-cases. When a case is instituted, whether generally or otherwise than on a police report under Section 17319 of the Code of Criminal Procedure, 1973 and it is made to appear to Magistrate currently conducting the inquiry or trial of such a case that an investigation by the police on that subject-matter is in process, the Magistrate will stay the inquiry or trial pending before him. He shall call for the report from the police officer conducting the investigation. If such Magistrate has taken cognizance on such report against any person who is an accused in the earlier complaint case, the Magistrate shall inquire into or try together both the cases as if one of them were derived from the police report. If he has not taken any such cognizance as mentioned earlier against any person accused in the earlier complaint case, based on that police report, the Magistrate shall proceed with the trial of the complaint case.
Duties as an investigator and the task of a prosecutor
Investigators in cross-criminal cases should find the truth of the matter and attempt to see the allegation and find out which side is right before submitting a charge-sheet20. In State of Karnataka v. Hosakeri Ningappa21, the Full Bench of the Karnataka High Court held that in cross-criminal cases the investigation should be conducted by one investigation officer and by two different Public Prosecutors.
A similar view was taken by the Karnataka High Court, as recently in Daya v. State of Karnataka22 on 16-1-2021. In this case, the Karnataka High Court while relying on the Full Bench decision in State of Karnataka v. Hosakeri Ningappa23, referred to the 1975 Circular issued by the Government of Karnataka and cited Gooti Sannaiah v. State of Karnataka24, in discrediting the process of the same prosecutor conducting cross-case prosecution. The Court observed:
5. … The prosecution in both the cases was conducted by the same prosecutor. What is said above would aptly attract the age-old saying that a person cannot ride on two horses running in opposite directions and if he attempts to do so, the earth would be his destination.
Provision under Police Standing Orders
The Madras High Court in this case encountered the provision Order 588-A of the Madras Police Standing Orders (hereinafter called “PSO 588-A”).25In Vellapady Thevar v. State26, the Madras High Court held that any contravention of the procedure mentioned in PSO 588-A would be illegal and bad in law. The same view was followed by the Madras High Court in Justin v. State27. In Vellapady Thevar case28, the Court held that contravention of PSO588-A would be bad in law.
In State of Punjab v. Charan Singh29, the Supreme Court had already declared that the Punjab Police Rules cannot override the Code of Criminal Procedure. In V. Karthikeyan v. State30, the Madras High Court held that PSO 588-A cannot override the Code of Criminal Procedure, 1973.
In Sujin v. State31, the Madras High Court took view that non-compliance with PSO 588-A is not illegality, and two police reports could be filed in appropriate cases by the police officer conducting the investigation. Unlike in the case of the investigator when both the prosecutions have been conducted by the same person it would be against the principle of the rule against bias. In Sujin v. State32, the Madras High Court further held that in appropriate cases the investigating officer can file two charge-sheets when he could not find the real aggressor in the investigation. In such circumstances, whether the court has to conduct the trial in both cases? The Madras High Court, in this case, observed:
“… it is not an illegality to file a final report in both the case and the counter-case, where the investigating officer is unable to find out as to who was the real aggressor. In such cases, it would require an appreciation of evidence for the trial court by conducting a simultaneous trial in both cases. In cases of this nature, the procedure that has been prescribed by the Supreme Court in Nathi Lal v. State of U.P.33 has to be followed.”34
Through these cases, the Madras High Court has evolved upon the view that filing a report on both the case and counter-case in a situation where the police officer cannot find who is the aggressor, is not an illegality but the correct procedure. The High Court in this case held that it is appropriate for the investigating officer to submit two police reports to the court when he could not find who the aggressor was. The High Court took a view that in such a case the trial court should come to a conclusion based on the evidence.
Conclusion
In the humble opinion of the authors, the legislature should intervene and legislate a separate chapter in the Code of Criminal Procedure, 1973 to deal with counter criminal case trials. Despite the observation made by the Madras High Court in Krishna Pannadi, In re35 in the pre-constitutional period, the legislature never chose to legislate on this even in the Code of Criminal Procedure, 1973. The legislature considering all the circumstances involved must enact such a chapter. It is also humbly suggested that the legislature has to think of enacting such a chapter/provision in special statutes where presumptions are created by the legislature against the accused persons. The legislature has to decide on considering the need for specific circumstances of such cases as to the burden of proof and presumptions in the trials of such counter-cases.
† Sr. Asst. Professor, School of Law, SASTRA Deemed to be University. Author can be reached at<sanjith@law.sastra.edu>.
† Professor, School of Management/Law, SASTRA Deemed to be University. Author can be reached at <balachandran@mba.sastra.edu>.
1. Criminal Procedure Code, 1973.
2. Goriparthi Krishtamma v. Emperor, 1929 SCC OnLine Mad 420.
4. Krishna Pannadi, In re, 1929 SCC OnLine Mad 166.
5. Krishna Pannadi, In re, 1929 SCC OnLine Mad 166.
7. 1990 Supp SCC 145, para 2.
8. Krishna Pannadi, In re, 1929 SCC OnLine Mad 166.
10. Penal Code, 1860, S. 307.
11. Criminal Procedure Code, 1973, “228. Framing of charge.— (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which —
13. Criminal Procedure Code, 1973, S. 26.
14. Criminal Procedure Code, 1973, S. 323.
18. Juvenile Justice (Care and Protection of Children) Act, 2015.
19. Criminal Procedure Code, 1973, S. 173.
20. State of M.P. v. Mishrilal, (2003) 9 SCC 426.
25. Order 588-A of Madras Police Standing Orders provides as follows—In a complaint and counter-complaint arising out of the same transaction, the investigation officer has to enquire into both of them and adopt one or the other of the two courses, namely, (1) to charge the case where the accused were the aggressors; or (2) to refer both the cases if he finds them untrue. If the investigating officer finds that either of the course is difficult, he should seek the opinion of the Public Prosecutor and act accordingly. A final report should be sent in respect of the case referred to as a mistake of law and the complainant or the counter-complainant, as the case may be, should be advised about the disposal by notice in Form 96 and to seek a remedy before the specified Magistrate if he is aggrieved by the disposal of the case by the police.
27. 1988 LW (Cri) 467.
31. 2019 SCC OnLine Mad 38972.
32. 2019 SCC OnLine Mad 38972.
Excellent article. The counter FIR has become a tool for extortion as the police doesn’t file one charge sheet but one against both accused and complainant . In Mishrilal the SC has commented that both conflicting versions cannot held to be correct in same incident but this is not being followed in subsequent judgments this is a fuzzy area which has to be clarified urgently