Penal Code, 1860: ss.302/149 – Five persons tried for murder – Trial court convicted one accused under s.302 IPC and under s.27 of Arms Act and other four co-accused under s.27 of Arms Act only – On appeal, High Court convicted four co-accused also under ss.302/149 along with the accused – In the instant appeal, only one co-accused challenged the order of High Court – Held: High Court completely under misconception misdirected itself by forming an opinion as if all the five accused were convicted under ss.302/149 and convicted four co-accused also under s.302/149 along with the accused – High Court failed to apply its judicial mind and committed fundamental jurisdictional errors – There was no appeal filed by the State against the order of acquittal of co-accused under ss.302/149 nor was there any notice of enhancement of their sentence issued by the High Court suo motu to these four accused – High Court failed to see that the trial court had acquitted all the accused under s.149 IPC, yet proceeded to convict all the accused under s.149 IPC without there being any appeal filed by the State on this issue – Further, although the High Court wrongly convicted the appellant along with three others for the offence punishable under ss.302/149 IPC, yet did not award any sentence to any of the four accused under ss.302/149 IPC which was mandatorily required to be awarded to each convicted accused as provided under s.354(3), Cr.P.C. – Impugned order is set aside qua all the co-accused persons – Matter remanded to High Court for adjudication on respective merits in accordance with law – Code of Criminal Procedure, 1973 – s.354(3) – Arms Act, 1959 – s.27. Appeal: Non-appealing accused – Effect of decision in appeal on the non-appealing accused – In the instant case, appeal of sole appellant is allowed – Whether the entire impugned order is to be set aside or only qua the sole appellant – Held: The entire impugned order is to be set aside against all the accused – An order, which is based entirely on wrong factual premise once held illegal by a superior Court at the instance of one accused, cannot be allowed to stand against other non-appealing accused persons also – An illegality committed by a Court cannot be allowed to be perpetuated against a person to a lis merely because he did not bring such illegality to the notice of the Court and instead other person similarly placed in the lis brought such illegality to the court’s notice and succeed in his challenge – Non-appealing co-accused are also entitled to get benefit of the order of this Court and are, therefore, entitled for re-hearing of their appeals along with the appellant – Judgment/Order – Penal Code, 1860 – ss.302/149. Allowing the appeal and remitting the matter to High Court, the Court
HELD: The High Court proceeded on wrong factual premise that all the five accused have suffered conviction under Section 302/149 IPC read with Section 27 of the Arms Act by the Additional Sessions Judge. It was not so. The entire impugned order deserves to be set aside against all the five accused. An order, which is based entirely on wrong factual premise once held illegal by a superior Court at the instance of one accused, cannot be allowed to stand against other non-appealing accused persons also. It will be a travesty of justice delivery system where an accused, who is convicted of a lesser offence (Section 27 of the Arms Act alone) and was acquitted of a graver offence (Section 302/149 IPC) is made to suffer conviction for commission of a graver offence (Section 302/149 IPC) without affording him of any opportunity to defend such charge at any stage of the appellate proceedings. If the other four accused had filed the appeals in this Court, they too would have got the benefit of this order. A fortiori, merely because they did not file the appeals and the case is now remanded for re-hearing of the appeal at the instance of one accused, the benefit of re-hearing of the appeal cannot be denied to other co-accused. In other words, the non-appealing co-accused are also entitled to get benefit of the order of this Court and are, therefore, entitled for re-hearing of their appeals along with the present appellant. It is for all these reasons, the impugned order stands set aside also qua all the accused persons.[Paras 17, 28, 29, 31-33][527-F; 530-B,C, D, G]
Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors. AIR 1954 SC 520 : [1955] SCR 287 – followed. Harbans Singh v. State of U.P. & Ors., (1982) 2 SCC
101 : [1982] 3 SCR 235; Raja Ram & Ors. v. State of M.P. (1994) 2 SCC 568 : [1994] 2 SCR 114; Chellappan Mohandas & Ors. v. State of Kerala (1995) Supp(1) SCC 259; Dandu Lakshmi Reddy vs. State of A.P. (1999)
7 SCC 69 : [1999] 1 Suppl. SCR 535; Anil Rai v. State of Bihar (2001) 7 SCC 318 : [2001] 1 Suppl. SCR 298; Bijoy Singh & Anr. v. State of Bihar (2002) 9 SCC 147 : [2002] 3 SCR 179; Gurucharan Kumar & Anr. v. State of Rajasthan (2003) 2 SCC 698 : [2003] 1 SCR 60; Suresh Chaudhary v. State of Bihar (2003) 4 SCC 128; Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra (2003) 2 SCC 708; Pawan Kumar v. State of Haryana (2003) 11 SCC 241 : [2003] 1 Suppl. SCR 710 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.