This article is written by Medha Shrivastava, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.com.
The cases and counter cases have nowhere been expressly defined in criminal law, but it is generally understood as 2 criminal cases, generally taking the opposite sides, lodged relating to the same incident occurring at the same time and place but taking a different or contradictory view.
They can be many types, for example of:
- Cases relating to political rivalry between two factions.
- Cases relating to property disputes by opposite parties.
- Cases relating to communal clash between 2 factions.
- Any clash between 2 groups.
- Matrimonial dispute between husband and wife.
These cases are decided by the same judge, in separate trials, one after another, based on the same evidence, or on the same police report given by the same investigating officer u/s 173 of CRPC.
But the judge considers all arguments and evidence and hears all the witnesses, in fresh light for each case. The trial is conducted separately, uninfluenced by the previous trial and in total fairness.
The purpose of the provision of cases and counter cases and the procedure written to be followed, is:
- That it deters the possibility of conflicting judgements over the same issue in different trials.
- It removes the possibility of an accused, of being convicted in the same case in one trial, before one court, while the other case is still going on before the other court.
Procedure for investigation in counter-cases
- When the complaint of the same offence is made by two different parties, the investigating officer should inquire into both of them.
- It is also the duty of the investigating officer, to find out which one of those cases is true and which one is false.
- He should make a police report u/s 173 of CRPC stating one party as the aggressor and other party as the victim.
- The investigating officer should also proceed with the case and file charge-sheet only in the case which appears to be true.
Procedure for trial in counter-cases
- The police report of both the cases in submitted u/s 173 of CRPC. The magistrate should frame charges only on the case which appears to be true u/s 240 of CRPC.
- In case the charge is framed by the magistrate, on the facts and circumstances of both the cases, and if he is competent to try both of them, he should try them one after another.
- In cross cases where one of the cases involves the offences exclusively triable by a Court of Sessions and in the other case none of the offence is exclusively triable by the Court of sessions, then as provided in Sec.323 of Cr.P.C, the Magistrate should commit both the cases for trial to the Court of sessions.
- If the court of session finds both the cases to be based on the same incident, then it shall try both the cases one after another.
- The learned/magistrate proceeds with the trial, and hears the arguments of the 1st cross case, records the evidence and reserves its judgement.
- Then he proceeds with the trial of the 2nd cross case, hears its arguments, records the evidence and reserves its judgement.
- The same learned judge must then dispose off the matter by two separate judgements and the arguments put forward and the evidence recorded in one case should affect the judgement and trial of the other cases.
- The statements of the accused u/s 313 of CRPC in the case of counter cases should be recorded once completion of taking of the evidence in both the case and the whole case of the parties is before the court.
- That means the counter cases should be disposed of one after another in the most fair way possible by the courts.
Draw-backs of the procedure followed in counter-cases
- It’s a cumbersome process, involving lots of repetitive work.
- It’s almost impossible for a judge’s mind to remain uninfluenced by arguments and evidence recorded in each case, in order to give two separate, unbiased and fair judgements.
- The repetition of entire evidence and statements in both the trials leads to a lot of contradictions, which can confuse the court.
- Such a lengthy and time consuming plus complex procedure for trial can give rise to a lot of loopholes which the guilty party can utilize to escape from justice.
- It is almost impossible for the judge, to not treat the counter-cases as two aspects of the same case rather than two separate cases, which fails the entire rationale behind constructing such a procedure.
Important case laws and judgements
State of M.p Vs Mishrilal (Dead) and Others
- It is a case or rivalry where two opposite parties filed counter-cases against each other.
- According to the case or prosecution: Babulal was moving his bullock cart in front of Mishrilal’s (accused) house, from where he was told to return back and take another route.
- Babulal when returned home, narrated the incident to his family members including his grandfather, uncle and Gopal they got agitated.
- Meanwhile the accused party with Mishrilal and other came and opened fire and attacked them with deadly weapons, where Babulal’s grandfather died, and others were rushed to hospital with grievous injuries.
- An FIR was lodged against Mishrilal and others u/s 149, 34, 302, 307 1of IPC.
- A counter FIR was filed by the accused party against Babulal and others of committing aggression against then u/s 34, 149, 302, 307 of the IPC.
- It was alleged that here the prosecution was in fact the aggressors, and in retaliation to them stopping Babulal’s bullock cart, they came armed with guns, lathis and deadly weapons and attacked Mishrilal and others, leading to them being grievously injured.
- They filed a chargesheet for both of these cases, and failed to recognize who was the aggressor and who was the victim.
- The matter was presented before the court as two counter cases, and their trial had to be separately conducted.
- In this case the police failed to find out which of the two accounts of the incident is true, even though it is very clear that the prosecution case was false, as the logical sequence of the events described by them did not make any sense.
- It cannot be explained why the accused party after stopping the aggrieved party from taking a route, would also go ahead and enter their house to beat them.
- Also, it cannot be explained how the aggrieved party had all possessed deadly arms to retaliate to such an attack by the accused, when there is no way they could have foreseen such an attack coming.
- By the injuries and wounds succumbed by the accused party it is pretty clear that the aggrieved party, following the bullock cart incident went to Mishrilal to beat them up, resulting in the fight, and they were in fact, in this case the aggressive party.
- But the police failed to see this and filed two separate chargesheets for both the cases.
The sessions court on the basis of prosecution’s case convicted Mishrilal and others, but the matter was put for appeal before the High Court and it reversed the lower court’s judgement. The High court after taking the overall view on the basis of both the counter cases, acquitted the accused party, Mishrilal and others.
Here due to lacuna in the investigation by the investigating officer who failed to make out who was the actual aggressor and who was the actual victim, presented the victim party as the aggressor party, which led to the sessions court passing the wrong judgement which later had to be reversed by the high court.
After this case the High court laid down the guidelines to be followed by the police in investigating counter-cases such as:
- The same police officer will investigate both the counter-cases simultaneously.
- Two separate FIRs have to be lodged as counter cases, if they are based on the same incident, occurring at the same place and time but lodged by the opposite factions.
- The investigating officer has to try his best to find out which case is true and which is false.
- The charge has to be framed only on the basis of the true account of the incident and the false one should not be taken to the court.
- In case, the police fails to find out which account is true, two separate charge sheets have to be filed before the court.
Kewal Krishan S/o Lachman Das Vs Suraj Bhan and Others
- There was a land dispute between Kewal Krishan and Suraj Bhan where the former was obstructing the transfer of possession of the property to the latter.
- Kewal Krishan & others went with some land officers to the disputed property only to find that Suraj Bhan and his accomplices were present there already with arms.
- There was a fight between the two groups and an accomplice of Suraj Bhan named Banta singh was shot dead and his body was thrown in the field of Kewal Singh.
- Kewal Singh and his accomplices admitted the dead person to the hospital and got treatment for their injuries too.
- Meanwhile, Suraj Bhan and others lodged an FIR against them u/s 302, 307, 149 and 34 of the IPC.
- The police made out Kewal Krishna and his party as the aggressors and refused to lodge an FIR from their side.
- Kewal Krishan approached the court with a criminal complaint u/s 302, 307, 149 of the IPC against Suraj Bhan and others.
- The magistrate took cognizance upon the complaint, and examined the witnesses u/s 200, 202 of CRPC even though it was a session triable case.
- The magistrate dismissed the complaint u/s 203 of CRPC, and the appeal was made to the sessions court.
In the procedure laid down under criminal law for trial in counter cases, does the magistrate have the power to take cognizance and dismiss the complaint of a sessions triable case, by himself without transferring it to the sessions court?
The sessions court held that the magistrate had no power to proceed with the trial of counter cases when it is a sessions triable case and dismiss the complaint. He should have just taken cognizance, framed charges based upon the facts of the case and then transferred it to the sessions court. The sessions judge reversed the judgement of the magistrate in the appeal, heard the case in new light, and after reaching a conclusion, acquitted the accused Kewal Krishan and others due to insufficiency of evidence and the crime not being proved beyond reasonable doubt against them.
The court cannot usurp the authority not given to it, for the trial of criminal offences, by the law. It has to follow a certain procedure laid down for the trial of counter cases along with following the normal procedure for any other criminal offence. For example, in the case of counter cases, the court cannot assume that it can try the cases (ex- the ones which are triable only be the sessions court) which it does not have the authority to try, otherwise.
- Criminal procedure code bare act
- India Penal Code bare act
- Books like: Ratanlal and Dhirajlal for CRPC
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