Case and counter case: What it is
Two different versions of the same incident resulting into two criminal cases are described as case and counter case by some High Courts or just cross cases by some others. The cross cases shall be tried by the same court says the High Court of Kerala in Faizal v State of Kerala [2024 (3) KHC 322].
Since there is no clear law regarding the procedure to be followed in such cases, the High Court points out some principles to be followed in such cases based on precedents.
Such cases to be tried by the same judge
A case and counter case arising out of the same event (called cross cases) shall be tried by the same court and each party would represent themselves as innocent victims of the aggression of the other.
Both should be tried in quick succession
The counter case should be tried in quick succession by the same judge who should pronounce judgement on conclusion of both cases.
Such a practice prevents the danger of an accused being convicted before his whole case is concluded and it deters the court from delivering conflicting judgements on one incident.
SC provides the procedure in cross cases
There is no provision in the Code of Criminal Procedure (CrPC) or in the Indian Evidence Act dealing exclusively with trial of cross cases. The procedure to be adopted in a case and counter cases is elucidated in supreme Court (SC) judgement in Nathi Lal & Others v State of UP [1990 SCC (Cri) 638].
The procedure that the SC prescribes
The SC says in the Nathi La case that the fair procedure to be adopted where there are cross cases, is that the same learned Judge must try both cross cases one after the other.
After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment.
Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case.
The same learned Judge must thereafter dispose of the matters by two separate judgments.
In deciding each of the cases, he can rely only on the evidence recorded in that case.
The evidence recorded in the cross case cannot be looked into, nor can the judge be influenced by whatever is argued in the cross case.
Each case must be decided based on the evidence which has been placed on record in that case without being influenced in any manner by the evidence or arguments urged in the cross case.
But both the judgments must be pronounced by the same learned Judge one after the other.
Investigation in counter cases
Investigation in counter cases (cross cases) pose some complex issues. The Supreme Court (SC), in State of MP v Mishri lal [ AIR 2003 SC 4089], has emphasized that in counter cases investigation should be conducted by one and the same investigation officer.
In such cases both the complaints cannot be said to be right. Either of them must be false. In such a situation, legal obligation is cast upon the investigating officer to make an endeavour to find out the truth and to cull out the truth from the falsehood.
In counter cases, both the parties cannot be aggressor. If both the cases are investigated by one and the same investigating officer truthfully, sincerely, and objectively it would not be difficult to find as to who was the aggressor. Ideally, only one charge sheet should be filed by the police indicating clearly as to who was the aggressor and the cross case should end up in a final closure report.
It must be left to the aggrieved party to choose his future course of action. If the aggrieved party files a protest petition or a complaint as per the legal advice and cognizance is taken by the magistrate, both the cases can be tried together.
References
- Faizal v State of Kerala [2024 (3) KHC 322]
- Nathi Lal & Others v State of UP [1990 SCC (Cri) 638]
- State of MP v Mishri lal [ AIR 2003 SC 4089]
