DEEP NARAYAN CHOURASIA versus STATE OF BIHAR

Citation: [2019] 4 S.C.R. 521 · Decided: 25-02-2019 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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DEEP NARAYAN CHOURASIA
v.
STATE OF BIHAR
(Criminal Appeal No. 180 of  2019)
FEBRUARY 25, 2019
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
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
[2019] 4  S.C.R. 521
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SUPREME COURT REPORTS
[2019]  4  S.C.R.
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 

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