Judgment in cross/counter cases must be pronounced by the same judge one after the other in the same day

In Nathi Lal vs State of UP reported in 1990 Supp SCC 145, the Apex Court has succinctly held that the case and counter case should be tried by the same judge one after the other and both the judgments must be pronounced by the same Judge one after the other. Observation of the Apex Court in this regard is as under:

"2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the 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 particular 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 on the basis of the evidence which has been placed on record in that particular 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"[Para No.9]

    The same law was reiterated by the Apex Court in Sudhir and Ors. vs. State of MP reported in (2001) 2 SCC 688 in which the Apex Court held as under:

"8. It is a salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of by the same court by pronouncing judgments on the same day. Such two different versions of the same incident resulting in two criminal cases are compendiously called "case and counter case" by some High Courts and "cross cases" by some other High Courts. Way back in nineteen hundred and twenties a Division Bench of Madras High Court (Waller, and Cornish, JJ) made a suggestion (In Re Goriparthi Krishtamma - 1929 Madras Weekly Notes 881) that "a case and counter case arising out of the same affair should always, if practicable,

be tried by the same court, and each party would represent themselves as having been the innocent victims of the aggression of the other."[Para No.10]

    In the said judgment the Apex Court further held as under:

"12. How to implement the said scheme in a situation where one of the two cases (relating to the same incident) is charge-sheeted or complained of, involves offences or offence exclusively triable by a Court of Sessions, but none of the offences involved in the other case is exclusively triable by the Sessions Court. The Magistrate before whom the former case reaches has no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Once the said case is committed to the Sessions Court, thereafter it is governed by the provisions subsumed in Chapter XVIII of the Code. Though, the next case cannot be committed in accordance with Section 209 of the Code, the Magistrate has, nevertheless, power to commit the case to the Court of Sessions, albeit none of the offences involved therein is exclusively triable by the Sessions Court. Section 323 is incorporated in the Code to meet similar cases also. That section reads thus:

"323.If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of chapter XVIII shall apply to the commitment so made."

13. The above section does not make an inroad into Section 209 because the former is intended to cover cases to which Section 209 does not apply. When a Magistrate has committed a case on account of his legislative compulsion by Section 209, its cross case, having no offence exclusively triable by the Sessions Court, must appear to the Magistrate as one which ought to be tried by the same Court of Sessions. We have already adverted to the sturdy reasons why it should be so. Hence the magistrate can exercise the special power conferred on him by virtue of Section 323 of the Code when he commits the cross case also to the Court of Sessions. Commitment under Sections 209 and 323 might be through two different channels, but once they are committed their subsequent flow could only be through the stream channelised by the provisions contained in Chapter XVIII.

14. Now we have to deal with the powers of the Sessions Court in the light of Section 228 of the Code which says that when the Sessions Court, after hearing under Section 227, is of the opinion that none of the offences presumed to have been committed by an accused is triable by a Court of Sessions he is to transfer the case for trial to the Chief Judicial Magistrate.

15. In this context, we may point out that a Sessions Judge has the power to try any offence under the Indian Penal Code. It is not necessary for the Sessions Court that the offence should be one exclusively triable by a Court of Sessions. This power of the Sessions Court can be discerned from a reading of Section 26 of the Code. When it is realised that the Sessions Judge has the power to try any offence under the Indian Penal code and when a case involving offence not exclusively triable by such court is committed to the Court of Sessions, the Sessions Judge has to exercise a discretion regarding the case which he has to continue for trial in his court and the case which he has to transfer to the Chief Judicial Magistrate....."[Para No.11]

    This High Court in Marani Nama vs. Dilip Datta(supra) referred to the decision of the Apex Court in the case of Nathi Lal and Ors. (supra) and Sudhir vs. State of MP(supra)and held as under:

"[5] In Sudhir vs. State of M.P., the apex court has approved the practice to be followed in such a case as enunciated in Nathi Lal vs. State of U.P : 1990 Supp SCC 145. In Nathi Lal vs. State of U.P, it has been enunciated that where there are cross cases, those cases must be tried by the same Judge 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 evidences he must hear the arguments but reserve the judgment in that case. The same Judge must thereafter dispose of the matters by two separate judgments. What has been further held in Nathi Lal vs. State of U.P : 1990 Supp SCC 145 is that in deciding each of the cases, the trial Judge can only rely on the evidence recorded in the particular 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 on the basis of the evidence which has been placed on record in the particular case, without being influenced in any manner by the evidence or arguments placed in the cross case but both the judgment must be pronounced by the same learned Judge one after the other in the same day."[Para No.12]

Tripura High Court

Shri Asim Das

Vs.

State Of Tripura

Decided on 05/03/2021