1. What are Cross Cases?
The Supreme Court in Sudhir & Ors. etc. vs State of M.P. etc., (2001) 2 SCC 688 observed as follows:-
"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 the 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.""
2. Procedure for trial of Cross Cases
In 1929, much before India’s independence, the then Madras High Court in Krishna Pannadi vs Emperor (AIR 1930 Madras 190) observed as follows:-
"There is no clear law as regards the procedure in counter cases, a defect which the legislature ought to remedy. It is a generally recognized rule that such cases should be tried in quick succession by the same Judge, who should not pronounce judgment till the hearing of both cases is finished. This precludes the danger of an accused being convicted before his whole case is before the Court, and also prevents there being conflicting judgments upon similar facts."
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The Supreme Court in Nathilal & Others vs State of Uttar Pradesh 1990 (Supp.) SCC 145 pointed out the procedure to be followed by the Trial Court in the event of cross cases–
“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.”
3. Cross Cases should be tried by the same Court
In State of Madhya Pradesh vs Mishrilal (2003) 9 SSC 426, the Supreme Court while giving guidance observed-
“It would have been just fair and proper to decide both the cases together by the same court in view of the guidelines devised by this Court in Nathilal’s case. The cross-cases should be tried together by the same court irrespective of the nature of the offence involved. The rational behind this is to avoid the conflicting judgments over the same incident because if cross cases are allowed to be tried by two courts separately there is likelihood of conflicting judgments.”
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The Supreme Court in Sudhir & Ors. etc. vs State of M.P. etc., (2001) 2 SCC 688 also stated:-
"The practical reasons for adopting a procedure that such cross cases shall be tried by the same court, can be summarised thus: (1) It staves off the danger of an accused being convicted before his whole case is before the court.
(2) It deters conflicting judgments being delivered upon similar facts; and
(3) In reality the case and the counter case are, to all intents and purposes, different or conflicting versions of one incident."
4. Evidence recorded in one case cannot be used in its Cross-Case
The Supreme Court in A.T. Mydeen & Ors. Vs. The Assistant Commissioner, Customs Department & Ors., Criminal Appeal No. 1306 of 2021, SLP (Crl.) No. 374 of 2020 observed as follows:-
"25. So far as the law for trial of the cross cases is concerned, it is fairly well settled that each case has to be decided on its own merit and the evidence recorded in one case cannot be used in its cross case. Whatever evidence is available on the record of the case only that has to be considered. The only caution is that both the trials should be conducted simultaneously or in case of the appeal, they should be heard simultaneously."
5. When one of the Cross Case is exclusively triable by a Sessions Court
In Sudhir & Ors. etc. vs State of M.P. (supra) the Supreme Court stated:-
"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.
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."
Section 323 of CrPC (Code of Criminal Procedure) reads:-
Section 323 in The Code of Criminal Procedure, 1973 323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed. 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] [Inserted by Act 45 of 1978, Section 26 (w.e.f. 18-12-1978).].