The Kerala High Court recently held that when trial courts are dealing with a case and a counter-case, they should avoid taking short cuts by dismissing the counter-case on flimsy grounds, through non-speaking orders [Amir & Anr. v State of Kerala].
Justice PV Kunhikrishnan opined that while a court is not required to go deep into the merits of case at the stage of framing charge under Section 227 of the Code of Criminal Procedure (CrPC), it is desirable for the same judge to hear the cases together at the stage of framing charge and passes orders on the same day.
“But 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….short cut methods should be avoided by the trial courts while dealing with case and counter cases. The reason to prescribe such a procedure by this Court and the Apex Court in case and counter case is to avoid conflicting decisions,” the High Court held.
On the procedure to be followed while trying a case and counter-case, the Court said both trials should be conducted one after the other, and speaking orders should be passed in both even if one is a discharge order.
“It is desirable to pass a speaking order while framing charge in the main case separately while passing the discharge order in other case. Suppose the counter case is discharged by a presiding officer and thereafter he was transferred or retired from service after superannuation, the successor judge will have to decide the main case. At that stage there is a chance for a conflicting decision also,” the Court said in its judgment.
The Court was dealing with an appeal against an order of a trial court finding the appellant guilty and sentencing him for committing offences punishable under Sections 341(wrongful restraint) and 307 (attempt to murder) read with Section 34 (acts done by several persons in furtherance of common intention) of the Indian Penal Code.
The prosecution case was that the appellant, along with another accused had verbally abused and later, attacked a man with a knife.
The appellant had also registered a counter-case against the injured but the trial judge discharged him.
Subsequently, the trial judge heard the original case against the appellant and issued a separate judgment.
Advocates B Renjith Marar and Arun Poomulli, appearing for the appellant, contended that the trial judge had not followed the correct procedure to be adhered to when cases and counter cases are considered.
It was also argued that the offence under Section 34 wasn’t fully established by the prosecution and that the right to private defense cannot be ruled out.
On the point regarding the procedure to be followed when there is a case and counter-case, the Court found that the trial court had adopted a short cut method by discharging the accused in counter case and proceeding with the main case, defeating the principle laid down by the High Court as well as the Supreme Court in a catena of decisions.
Moreover, the Court noticed that the main ground for discharging the accused in the counter-case was the delay in filing the same, which the Court termed as “flimsy”
However, since the appeal did not challenge the discharge order of the trial court, the Court let the matter rest.
As far as the offences alleged, upon considering the facts and circumstances of the case, the Court set aside the conviction under Sections 307 and 34 of the IPC. The conviction under Section 341 was upheld but the corresponding sentence was modified.
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