The investigating officer has discretion in filing charge-sheets based on conflicting versions in 'case and counter-case' scenarios, and it is not mandatory to file separate charge-sheets in both cases. Both cases should be tried by the same court for a proper appreciation of evidence.

P. JANAKI AMMA, J.

The nine accused in SC No. 11 of 1980 of the Court of the Additional sessions Judge, Parur, were tried for the murder of one Michale, for causing injuries to his wife and two sons and other offences. It so happened that accused 1, 6 and 7 also sustained some injuries in the course of the same transaction. The police registered Crime No. 97 of 1979 on the basis of the information given by PW-1, one of the injured sons of Machael, and Crime No. 99 of 1979 on the basis of the statement of the sixth accused. After investigation a charge-sheet was presented in respect of Crime No. 97 of 1979. Crime No. 99 of 1979 was referred as false and a report to that effect was filed. After trial accused 1, 2 and 4 to 7 were convicted for murder, rioting and other cognate offences. Criminal Appeal No. 305 of 1980 was filed before this Court against the conviction and sentence of the above accused. The State filed Criminal Appeal No. 430 of 1980 against the acquittal of accused 3, 8 and 9.

The appeals came up for hearing before a Division Bench. In the course of arguments a contention was raised to the effect that a serious irregularity has been committed by the investigating agency in having filed a refer report in Crime No. 99 of 1979 and by the Court in accepting the same, that the said case and the present case came under what is known by the expression "case and counter-case", that for the proper appreciation of the evidence in the present case the evidence in Crime No. 99 of 1979, which is the counter-case, should also have been placed before Court, that the counter-case should also have been committed for trial and the two cases should have been disposed of simultaneously.

In support of the plea of the accused-appellants placed reliance on the decision in Thami v. State of Kerala, 1965 Ker LT 697. In that case the appellant, Thami, was tried for the murder of one Madhavan Nair and for causing hurt to PW-1 who according to the prosecution tried to wrest the knife of the accused and for that purpose beat the accused. The accused had his own version of the occurrence and if that version was true he was entitled to right of private defence. Even though a case was registered under S. 324 of the Penal Code on the basis of the statement of the accused after investigation it was referred as non-cognizable and falling under S. 334 of the Penal Code. The Division bench of this Court which disposed of the appeal observed that the circumstances made out indicated that the while thing took place in darkness, that none could have seen the occurrence and that the whole case appeared to have been reconstructed afterwards, because a man died of injuries, Anna Chandy J., speaking on behalf of the Division Bench observed :

"If the accused's arrest was illegal and the accused was acting in private defence he could certainly have afforded no provocation to his assailants so as to justify the conversion of the offence under S. 324 into one under S. 334 of the Penal Code. In any case the Circle Inspector need not have usurped the functions of the Court to decide subtle questions of law of the prejudice of the accused who was in custody all along and who was too poor to have gone in for legal assistance. Both the case and the counter-case could well have been sent up to the Court leaving the Court to take a proper decision".

2. The appellants contended that the investigating agency in the instant case should not have referred Crime No. 99 of 1979 registered on the basis of the statement of the sixth accused, that a charge-sheet should have been filed in Court and the case and the counter-case should have been tried by the same Court. The omission, according to the learned counsel appearing for the accused, seriously prejudiced their defence and the conviction should be set aside on that sole ground.

3. No doubt there are instances where the police do file separate charge-sheets in respect of the same transaction, one in the main c