Cross-FIR Strategy in Mutual Affrays: Protecting the Right of Private Defence in Police Investigation

Authored by: Advocate Kishan Kumar (Advocate & Legal Consultant)

Mutual physical altercations, group clashes arising out of property boundary disputes, road rage incidents, and village factional feuds across Haryana, Delhi NCR, and Punjab frequently culminate in the registration of cross-FIRs (counter-cases). When both factions sustain physical injuries and rush to police stations to lodge competing complaints, the criminal justice system is confronted with two conflicting versions of the exact same violent occurrence. Navigating a cross-FIR demands an intricate understanding of the substantive law of private defence under the Bharatiya Nyaya Sanhita, 2023 (BNS), the procedural trial framework under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and binding constitutional precedents of the Supreme Court of India.

1. Anatomy of Cross-FIRs in Violent & Mutual Fights

A cross-case arises when two adversarial factions involved in the same physical clash or criminal transaction lodge independent complaints against each other, asserting contradictory narratives regarding:

• The First Aggressor: Each faction claims the other initiated the unprovoked assault, armed themselves with lethal weapons, and trespassed upon private premises.
• The Right of Self-Defence: Both parties assert that any physical violence, weapon usage, or vehicular collision caused by them was an emergency act executed purely in exercise of lawful private defence to save human life or protect property.
• Severity & Provenance of Injuries: While Party A claims that Party B inflicted grievous hurt using sharp-edged or blunt weapons, Party B counters with Medico-Legal Examination Reports (MLCs) proving that Party A inflicted fractured bones, incised wounds, or blunt trauma.

The substantive penal charges routinely invoked in cross-FIRs under the Bharatiya Nyaya Sanhita, 2023 include:

2. Private Defence Framework: Sections 34–44 BNS 2023

The cornerstone of defending a cross-FIR lies in establishing that the accused was exercising the statutory right of private defence codified under Sections 34 to 44 of the Bharatiya Nyaya Sanhita, 2023 (corresponding to Sections 96 to 106 of the old Indian Penal Code).

Under Section 34 BNS, nothing is an offence which is done in the exercise of the right of private defence. Every citizen has a legal right to defend their own body and the body of any other person against any offence affecting the human body (Section 35 BNS), as well as to defend movable or immovable property against theft, robbery, mischief, or criminal trespass.

3. The Free Fight Doctrine & Individual Criminal Liability

A pivotal distinction drawn by Indian criminal jurisprudence is between legitimate private defence and a mutual free fight. In numerous group clashes, both sides actively prepare for combat, arm themselves, and assemble at a common spot to settle scores.

As authoritatively enunciated by the Supreme Court in Gajanand v. State of U.P. (AIR 1954 SC 695) and reaffirmed in Dharman v. State of Punjab (AIR 1957 SC 324) and Munir Khan v. State of M.P. (2003) 11 SCC 110:

• Exclusion of Private Defence: In a mutual free fight, where both factions engage in armed combat by mutual agreement or pre-arranged understanding, the plea of private defence is completely unavailable to either side. Neither party can claim to be an innocent victim resisting an unprovoked attack.
• No Constructive Liability (Absence of Common Object): In a true free fight, the doctrine of vicarious liability under Section 190 BNS (old Section 149 IPC - unlawful assembly) or Section 3(5) BNS (old Section 34 IPC - common intention) does not automatically apply to rope in every member for the fatal acts of one participant. Each individual combatant is held criminally responsible solely for the specific overt injuries inflicted by their own hand.

4. The Supreme Court's Golden Rule for Simultaneous Trial

Trying cross-cases requires an extraordinary procedural safeguard to prevent conflicting judicial findings and premature disclosure of defence arguments. In a trilogy of authoritative verdicts—Nathi Lal v. State of U.P. (1990 Supp SCC 145), Sudhir v. State of M.P. (2001) 2 SCC 688, and State of M.P. v. Mishrilal (2003) 9 SCC 426—the Supreme Court established the mandatory Golden Rule governing the trial of cross-cases:

5. Statutory Duties of Police Investigation under BNSS 2023

Under the Bharatiya Nagarik Suraksha Sanhita, 2023, an Investigating Officer (IO) confronted with cross-complaints cannot arbitrarily elect which faction to favor. The statutory scheme imposes strict duties upon the police:

• Registration of Counter-FIR (Section 173 BNSS): When a counter-version disclosing a cognizable offence is presented, the police officer is bound under Section 173(1) BNSS to register the cross-FIR. The police cannot decline registration on the pretext that an FIR for the same incident has already been lodged.
• Independent Investigation & Distinct Case Diaries (Section 192 BNSS): The IO must maintain separate Case Diaries for each FIR under Section 192 BNSS. Statements under Section 180 BNSS (old 161 CrPC) and site inspection plans must be compiled independently.
• Forensic Scene of Crime Preservation (Section 176 BNSS): Under Section 176(3) BNSS, for offences punishable with imprisonment of seven years or more, the visit of a forensic expert to the crime scene and videographic recording of the collection of evidence is mandatory. This includes seizing weapons used by both sides, collecting blood-stained earth, and inspecting ballistic trajectories.
• Prohibition on Acting as Judge: As held by the Punjab & Haryana High Court in Babu Ram v. State of Haryana, the police cannot act as an adjudicatory court to decide who was the aggressor during the investigation phase; their sole statutory duty is to collect evidence impartially and place all material before the competent Magistrate under Section 193 BNSS.

6. Non-Explanation of Injuries on the Accused: The Lakshmi Singh Rule

One of the most potent weapons available to criminal defence counsel in mutual combat cases is the presence of un-explained injuries on the accused person. In the locus classicus judgment of Lakshmi Singh v. State of Bihar (1976) 4 SCC 394, the Supreme Court laid down that:

"Where the prosecution witnesses fail to explain serious, un-superficial injuries sustained by the accused in the course of the same occurrence, the omission is a very important circumstance from which the court can draw the following three inferences: (1) that the prosecution has suppressed the true genesis and origin of the occurrence; (2) that the witnesses who have denied presence of injuries on the accused are lying on a most material point; and (3) that the defence version that the accused acted in exercise of the right of private defence is rendered highly probable."

This principle has been consistently reaffirmed by the Supreme Court in State of Rajasthan v. Madho (1991 Supp (2) SCC 396) and Nand Lal v. State of Chhattisgarh (2023 10 SCC 470). If Party A's witnesses completely conceal that Party B also suffered fractured ribs or skull trauma, their credibility is shattered, entitling the accused to an acquittal.

7. Procedural Remedies if Police Refuse Counter-FIR

Local police stations frequently succumb to local political influence or race to favor the party that reached the Thana first, refusing to register the cross-FIR of the injured counter-claimants. When confronted with such refusal, the aggrieved faction must execute these sequential remedies under BNSS 2023:

1. Representation to SP / DCP under Section 175(3) BNSS: Send a written complaint setting forth the complete cross-version accompanied by certified MLC copies by registered post or verified email to the Superintendent of Police or Deputy Commissioner of Police under Section 175(3) BNSS.
2. Magisterial Application under Section 175(4) read with Section 223 BNSS: If the senior police officer fails to direct registration of the FIR, file an application before the Chief Judicial Magistrate (CJM) / Metropolitan Magistrate under Section 175(4) BNSS seeking court directions for registration of the counter-FIR or initiating a private complaint proceeding under Section 223 BNSS.
3. Writ Petition for Mandamus under Article 226: Approach the High Court of Punjab & Haryana or Delhi High Court by filing a Criminal Writ Petition under Article 226 of the Constitution seeking a writ of mandamus directing the registration of the cross-FIR and transfer of the investigation to an independent agency (Crime Branch / State CID) under the guidelines of Lalita Kumari v. Govt. of U.P. (2014) 2 SCC 1.

8. Evidentiary Preservation & Electronic Records under BSA 2023

Modern mutual clashes almost invariably generate digital footprints: CCTV footage from nearby residential societies or market complexes, dashboard cameras, and mobile phone video recordings captured by bystanders. Under the Bharatiya Sakshya Adhiniyam, 2023 (BSA), preserving this electronic evidence is crucial:

• Section 63 BSA 2023 Certificate: Any digital video, audio recording, or CDR (Call Detail Record) submitted as defence proof must be accompanied by a valid Section 63 BSA electronic certificate executed by the person in lawful control of the recording device.
• Section 94 BNSS Production Notice: Serve an immediate written application under Section 94 BNSS upon the Investigating Officer requesting the immediate seizure and preservation of CCTV DVRs from surrounding shops or residential complexes before the footage is overwritten in 15 to 30 days.
• Forensic Voice & Video Authentication: Moving the court under Section 39 BSA to dispatch original mobile phone recordings to the Forensic Science Laboratory (FSL) to establish that the complainant faction arrived armed at the scene as the initial aggressors.