PINK – Cross Trials
After years of watching cringe-worthy, over-the-top ‘court room dramas’, the movie “Pink” was a welcome and refreshing change for the legal fraternity.
Apart from its cinematic and thematic brilliance, the movie stands out not only because it sent a strong social message, but also because, unlike a social commentary, it did which no Indian movie had done before – back its social message by way of legal provisions. Although the contribution of Mr. Bachchan’s baritone and strong presence was instrumental in creating awe in the viewer’s mind, making his arguments even more powerful and effective, yet, even without his enigma, in isolation too, the concepts touched upon in the movie were a lawyer’s delight.
Credits to the makers for bringing concepts such as Zero FIR and availability of bail to women and minors in non-bailable offences, before the audience, who are largely unaware of the rights and aids provided to them in law. The movie touched upon the nuances of cross-examination and gave a clear perspective on a sensitive topic, ‘consent’, which has been a topic of debate for a while now.
However, here I would like to discuss a relatively little discussed/thought of part of the movie. An important part of the movie was the judgment at the end, which brought an end to the stress and angst of the audience after sitting through the ordeal of the three young women in the movie.
There are two FIRs in the movie. The first is the FIR lodged by the girls; the second one is lodged by the boys.
Interestingly, the entire case which was being argued is based on the FIR of the men. The court room comes into picture when one of the female protagonists is arrested by the police based on the FIR filed by the boys. The FIR further implicates the arrested girl along with her two friends under various sections of the IPC.
For simple understanding the case was “Whether the girls are guilty of what they are being accused of or not?” It is left on the defense counsel, Mr. Bachchan, to prove that the charges leveled against his clients, the girls, are false.
As such, on pure technical grounds, did the trial court, which simply had to determine whether the girls were guilty of the charges against them or not, had the jurisdiction to convict the boys for the same?
Can the court convict the prosecution, under various provisions of the IPC (other than for filing a false and frivolous complaint or such similar grounds), while acquitting the defendant(s), as it did in the movie? The movie did not give a satisfactory portrayal as to why (or whether) both the FIRs were heard together (or not). It appears in the movie that the boys who were accused consequent to the FIR filed by the girls and found guilty by the court did not have an attorney to defend them, as the public prosecutor was representing the state and the girls had a defense attorney. Therefore, should the court have provided the accused boys an opportunity to be represented by an attorney for a fair trial?
Ideally, there should’ve been two separate trials, based on both the FIRs, and the boys should have been convicted in the trial where the girls were the prosecuting party.
It wasn’t just the movie where two contradictory FIRs were filed for the same incident. In real life too, trial courts are plagued by FIRs and counter FIRs for one and the same occurrence. Often than not, an FIR is filed by both the Parties, presenting their version of the matter in the same incident, counter challenging each other. Such cases are commonly known as “cross cases”.
There is no legal provision/procedure, either in CrPC, or in the Evidence Act, for the courts to follow in such situations, and the courts have simply come to accept and recognize such situations as “case and counter case” or simply, “cross case”. The complexities presented before the court due to such cases are multiple, such as whether or not to appoint the same investigating officer for both the FIRs? Whether the FIRs should be heard in different courts, if yes, then what happens if the two courts pronounce contradictory judgments? Whether the evidence put up in one case can be used and considered in the other one too?
Due to the various complexities presented before the court due to such cases, courts have not been able to formulate standard procedure to follow in such matters. For now, courts mostly rely on the various judgments and observations of the apex court to deal with such matters.
The Supreme Court in NathiLal&Ors.v. State of U.P, tried more or less formulated a certain procedure to be followed in such matters. It was observed that, to avoid conflicts, the same judge must hear both the cases, one after the other. After hearing the arguments in the first case, the judge should reserve his judgment, till the arguments in the second case are over. Judgment must be delivered by the same judge one after the other.
This approach was further upheld in State of M.P v. Mishrilal, where the Court 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 rationale 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 separate judgments.”
The courts have followed this approach. That is, when there is an FIR and a counter FIR, for a fair trial, the courts considers both the versions, preferably, one after the other, in two separate cases albeit, by the same judge. The judge shall not take into account the evidence put before him in one matter for the other matter.
In light of this, it is to be noted that in Pink the movie:
· The trial was based on the FIR lodged by the three men. As such, State was represented by the public prosecutor, while the girls had a counsel defending them from the charges that were leveled against them.
· This being a clear instance of a ‘cross case’, ideally, trial should have happened on both the FIRs.
Taking into account the problems faced by the courts in dealing with such matters, it is justified that the movie makers took some liberties in the technical aspects of the trial.
Cross cases tend to raise serious procedural questions, for not only the hearing in such matters are marred by the vicious cycle of allegations and counter-allegations, it is also very difficult for the investigating agencies to investigate impartially in a matter where once a party is the accused, and another time, under identical circumstances, it is the one making accusations.
As such, there have been demands over time, to make such amendments in the CrPC so as to formulate a definitive procedure for hearing of cross cases.
The present approach of the courts is bound to be burdensome and time consuming. A more practical approach would be (as unwittingly shown in the movie too) that the two matters should be heard together, which would ensure a fair trial and also speedy justice.
Deepti Arya, Associate.
(Patanjali Associates is a boutique, proprietary law-firm based out of Delhi