The Kerala High Court laid down the procedure to be adopted when there is a case and a counter case and the trial court is of the opinion that the counter case is to be discharged.
Justice P.V Kunhikrishnan opined that trial courts should refrain from taking shortcuts by dismissing the counter-case on flimsy grounds through non-speaking orders.
"When a Sessions court tries a case and counter case, the trial court cannot take such flimsy stand to discharge the accused in the counter case and thereafter proceed with the main case. It will only defeat the procedure laid down by this Court and the Apex Court on the trial of the case and counter case. I am sorry to say that, the learned judge tried to avoid the trial of the counter case by discharging the accused in it on a flimsy ground. This type of short cut methods should be avoided by the trial courts while dealing with case and counter cases."
The Court added:
"Even in a fit case, if the trial court feels that the accused in the counter case is to be discharged, it is desirable to pass such orders along with the judgment in the main case, especially in cases where the counter case is committed after the trial in the main case is started. In other situations in which both cases are committed together and came up for consideration together, the Court should conduct a hearing at the stage of framing charge in both cases, and the charge can be framed in one case if the Court thinks so and a discharge order can be passed in the other case if it is a deserving case, but it should be on the same day by the same judge. The order should be separate and should pronounce one after the other. In such situation also, it is desirable to pass a speaking order while framing charge in the main case separately while passing the discharge order in other case."
The Judge suggested the following procedure to be followed while adjudicating a case and its countercase:
"Usually, the main case will be tried first, and after the trial the counter case will be started. In a situation where the trial of the main case is over and thereafter the counter case committed and the trial court is of the opinion that this is a case to be discharged under Section 227 of the Cr.P.C., the matter can be heard at that stage itself and order of discharge can be passed along with the decision in the main case, one after other. Such a procedure should be followed unless there are other practical difficulties to proceed like that."
The Court was hearing a matter where the appellant, along with another accused were booked for verbally abusing and attacking a man with a knife. While the case against the appellant was pending, the appellant registered a counter-case against the injured man, however, the trial court discharged him. Thereafter, the trial court heard the case against the appellant and issued a separate judgment, finding the appellant guilty and sentencing him under Sections 341 (wrongful restraint) and 307 (attempt to murder) r/w Section 34 (common intention) of the IPC.
Aggrieved by this, the appellant moved the High Court.
Advocate B Renjith Marar appeared for the appellant and argued that the trial court had not followed the correct procedure stipulated for deciding cases and counter cases.
The Court found that the trial court had discharged the accused in the counter case mainly for the reason that there was a delay in filing the counter case. This was held to be an insufficient reason to discharge an accused at the stage of Section 227 Cr.P.C.
"It is well settled that, as far as case and counter cases are concerned, each case has to be decided on its own merit and the evidence is to be recorded in one case cannot be used in its cross case. The only caution is that both trials should be conducted one after the other."
However, since the appellant did not challenge the discharge order of the trial court, the Court restrained itself from commenting further on the same. "
Further, after considering the facts and circumstances of the case, the Court set aside the conviction under Sections 307 and 34 and upheld the conviction under Section 341, but the corresponding sentence was modified.
Case Title: Amir & Anr v. State of Kerala
Citation: 2022 LiveLaw (Ker) 307