-Nehaol Sri L V
Two criminal cases with conflicting versions arising out of the same incident are called as counter or cross-cases[2] These cases represent opposing views of the same incident happening at the same time and space, and are usually seen at the level of trial courts. There is no standard definition or procedure for trial of cross-cases in the Cr.P.C. or any other statute. Therefore, the judiciary have evolved the procedure to be followed in cross-cases through common law. The Court in 1929 held that “cross-cases should be tried in quick succession by the Same-Judge, who should not pronounce judgment before both cross-cases are heard.”[2]Since then, there are various judgements on the procedure to be followed in cross-cases.
Judicial Precedents on Trial of Cross-Cases:
The Supreme Court (for short ‘SC’) in Nathi Lal and Ors. v State of U.P.[3] establishedthe procedure for trial in cross-cases. The court held that both cross-cases must be tried by the Same-Judge successively. After recording evidence and hearing arguments in one case, the Judge must reserve the judgement and hear the cross-case. Then, after recording evidence and hearing arguments in the cross-case, the Same-Judge must dispose both cross-cases by two separate judgements simultaneously on the same day. Each case must be decided on the evidence recorded in that particular case, without being influenced by the evidence or arguments in its cross-case.[4] Only if the evidence recorded in one case is legally brought on record in the other cross-case, it can be referred but not otherwise.[5]
In State of M.P. v Mishrilal (Dead)[6],the court explained that “this procedure is adopted to avoid conflicting judgments, because if cross-cases are tried separately by different courts, there is likelihood of conflicting judgments.” Investigation in cross-cases must be conducted by the same Investigating-Officer but prosecution should be conducted by two different Public Prosecutors (for short ‘PP’) and the trial must be conducted by the same Court.[7] Therefore, the Sessions-Judge should see that a separate PP proceeds with the cross-case, before framing of charges and recording evidence of witnesses. Otherwise, the trial may be vitiated. The SC explained inSudhir v State of M.P.[8] that this procedure protects accused from being convicted before his entire case is presented before the court, to ensure a fair-trial.
Accused Statement under Section-313 of Cr.P.C.:
Another matter which has not been addressed in trial procedure of cross-cases is when the accused’s statement should be recorded under Section-313(1)(b) of Cr.P.C. The object of Section-313(1)(b) is to bring the substance of accusation to the accused and enable him to explain all the circumstances and incriminating evidence against him in the trial.[9] Currently, the procedure requires the evidence of first case to be recorded, with only reserving the judgement before proceeding with the cross-case. But if the accused’s statement is recorded after the evidence in first cross-case before proceeding with second cross-case, it will be prejudicial to the accused as it can cause disclosure of his case before both cross-cases are heard. Therefore, to ensure fair-trial in cross-cases, the accused’s statement under Section-313(1)(b) should be recorded after recording evidence in both cross-cases.
Cross-Cases Exclusively Triable by Sessions Court:
In Kewal Krishnan v Suraj Bhan[10], the court held that in cross-cases exclusively triable by Sessions-Court, both cases should be tried separately by the same Court. In these cases, the Magistrate has to just check whether on cursory perusal, there is a prima facie case made out and if so, commit the case for trial in Sessions-Court. The magistrate cannot proceed with the trial of cross-cases exclusively triable by Sessions court and dismiss the complaint.
But the question of procedure in cross-cases where one is exclusively triable by Sessions-Court while the other cross-case is not, was dealt in Sudhir v State of M.P.[11]. The court held that the Magistrate should commit both cross-cases to the Sessions-court as the first case is mandated to be committed to Sessions-Court under Section-209 of Cr.P.C. The Magistrate must also commit the second cross-case to Sessions-Court under Section-323 of Cr.P.C.Though such cross-cases are committed separately under Section-209 and 323, they would subsequently be governed by the provisions in Chapter XVIII of Cr.P.C. Furthermore, the Sessions-Court must not transfer the cross-case not exclusively triable by Sessions-Court under Section-288 of Cr.P.C. and both cross-cases ought to be tried by the same court.[12]
But there are many instances when this procedure is not followed properly because of problems in investigation, etc. In such cases where the trial procedure of cross-cases is not in accordance with the established procedure, the proceedings ipso facto will not be vitiated and would only amount to an irregularity under Section-465 of Cr.P.C.[13] Only if the irregularity has occasioned a failure of justice, the proceedings will be reversed or altered.[14] Furthermore, merely because an appeal is not filed in one cross-case while an appeal is preferred in another, the proceedings will not be automatically vitiated in the latter case.[15]
But when the judgement of one cross-case has already been decided separately by a Judge, it would be prejudicial to the accused to be tried by the Same-Judge in the other cross-case. This is especially important when the Judge has convicted the accused in prior case, as the Trial Judge might be influenced by his decision in that case. Therefore, in Zora Singh v State of Haryana[16], the court held that if one cross-case is given a judgement which bears a strong opinion against the accused in other pending cross-case, then the pending case can be transferred to another court of competent jurisdiction to ensure fair-trial.
Challenges:
Though the Courts have established the procedure for trial in cross-cases, the lack of provisions dealing exclusively with cross-cases in Cr.P.C. or other statutes might lead to ambiguity at times. This is because there are various aspects in cross-case procedure which are still not addressed by courts. So, the Courts have also repeatedly contended the need to incorporate the procedure of cross-cases in the statute.[17]
Furthermore, this trial procedure mostly requires repetitive work. For instance, both cross-cases are on the same incident and generally deal with same evidence. By the established procedure, the evidence and arguments for both cases have to be heard separately one after another. This will practically require the entire evidence to be repeated in the subsequent cross-case which indicates its time-consuming nature in reality. The procedure requires each case to be decided without being influenced by evidence or arguments in cross-case.[18] But both cross-cases are heard by the Same-Judge successively and it is practically impossible for the Judge to not be influenced by the evidence and arguments in the other cross-case.
Furthermore, this trial procedure might create loopholes which can hamper the chances of fair-trial, as the procedure is complex and requires the entire evidence, irrespective of them being recorded in prior cross-case, to be repeated in subsequent cross-case. This can lead to contradictions such as differences in witness statements as it is difficult for people to repeat the exact same statement again, etc. Such loopholes can be exploited by the accused to avoid the clutches of justice. In addition to this, there are various instances where the procedure is not properly followed such as two investigating officers investigating the cases, etc.
Current procedure mandate that the evidence and arguments for one case has to be heard following the evidence and argument in cross-case. Only after both cases are heard, the judgement can be delivered. From this, we can infer that the Court’s intent is to not prejudice the accused and to ensure fair-trial. But the established procedure prevents evidence or arguments in the other cross-case to be considered in the concerned case. But only if both cross-cases are not treated as independent-cases but as a ‘whole case’ in trial, we can truly achieve the objective of fair-trial as all evidences can be considered in deciding the judgement.
Conclusion:
Thus, it is clear that though the Courts have extensively laid down the procedure to be followed in trial of cross-cases, there are still various issues which are still not addressed. The lack of exclusive provisions dealing with cross-cases show the need for Legislature to introduce suitable amendments to Cr.P.C. Therefore, it is necessary for the Legislature and the Courts to further regulate the procedure for trial in cross-cases so as to ensure Fair-trial and Rule of Law which is of paramount importance.
[1] State of Karnataka v Hosakeri Ningappa ILR 2012 KAR 509
[2] Krishna Pannadi v Emperor AIR 1930 Madras 190
[3] 1990 (Supp) SCC 145
[4] ibid
[5] State of Karnataka v Hosakeri Ningappa ILR 2012 KAR 509
[6] AIR 2003 SC 4089
[7] State of Karnataka v Hosakeri Ningappa ILR 2012 KAR 509
[8] AIR 2001 SC 826
[9] Nar Singh v State of Haryana (2015) 1 SCC 496
[10] (1980) Supp. SCC 499
[11] AIR 2001 SC 826
[12] ibid
[13] State of Karnataka v Hosakeri Ningappa ILR 2012 KAR 509
[14] ibid
[15] ibid
[16] 1996 CriLJ 1374
[17] ibid
[18] Nathi Lal and Ors. v State of U.P. 1990 (Supp) SCC 145
[ Nehaol Sri L V, is a fourth year law student pursuing her BBA LLB (Hons) in Jindal Global Law School]
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