whether we should set aside the entire impugned order or set aside only qua the sole appellant herein because the other four accused though suffered conviction under Section 302/149 IPC alike the appellant herein did not file any appeal against their conviction and secondly, the other accused ­ Kanhai Prasad Chourasia whose conviction and sentence under Section 302/149 IPC read with Section 27 of the Arms Act was upheld has also not filed any appeal in this Court.= It is a fundamental principle of law that 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. 31. 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 15 graver offence (Section 302/149 IPC) without affording him of any opportunity to defend such charge at any stage of the appellate proceedings. 32. Needless to say, 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 re­hearing of the appeal at the instance of one accused, the benefit of re­hearing of the appeal cannot be denied to other co­accused. In other words, the non­appealing co­accused are also entitled to get benefit of the order of this Court and are, therefore, entitled for re­hearing of their appeals along with the present appellant.


Hon’ble Mr. Justice Abhay Manohar Sapre

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.180 OF 2019
Deep Narayan Chourasia ….Appellant(s)
VERSUS
State of Bihar ….Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.

  1. This appeal is filed against the final judgment
    and order dated 14.11.2017 passed by the High
    Court of Judicature at Patna in Criminal Appeal
    (DB) No.77 of 1994 whereby the High Court
    dismissed the appeal filed by the appellant herein.
    1
  2. In order to appreciate the short question
    involved in this appeal, a few relevant facts need
    mention infra.
  3. Five persons, namely, (1) Lukho Prasad
    Chourasia, (2) Birendra Prasad Chourasia, (3) Binod
    Prasad Chourasia, (4) Deep Narayan Chourasia and
    (5) Kanhai Prasad Chourasia were tried for
    commission of offence of murder of Kaushalya Devi
    on 06.02.1992 under Section 302/149 of the
    Indian Penal Code, 1860 (hereinafter referred to as
    “IPC”) and Section 27 of the Arms Act by the
    Additional Sessions Judge, Munger in Sessions
    Case No. 264/1992.
  4. By judgment dated 08.02.1994, the Additional
    Sessions Judge convicted the accused­Kanhai
    Prasad Chourasia for the commission of offence
    under Section 302 IPC and Section 27 of the Arms
    Act and he was accordingly sentenced to undergo
    life imprisonment under Section 302 IPC and
    2
    rigorous imprisonment for seven years under
    Section 27 of the Arms Act. Both the sentences were
    to run concurrently.
  5. So far as co­accused­Lukho Prasad Chourasia,
    Birendra Prasad Chourasia, Binod Prasad
    Chourasia and Deep Narayan Chourasia are
    concerned, all the four were acquitted from the
    charge of commission of offence under Section 302
    IPC. However, all the four accused were convicted
    for commission of offence under Section 27 of the
    Arms Act and accordingly sentenced to undergo
    rigorous imprisonment for five years. The
    concluding para of the order of Sessions Judge
    reads as under:
    “Accordingly, on the basis of my findings,
    accused Kanhai Prasad Chaurasia, who is in
    custody, is convicted u/ss 302 IPC and 27 of
    Arms Act and is again remanded to custody
    to serve his sentence and accused Lukho
    Prasad Chaurasia, Birendra Prasad Chaurasia,
    Binod Prasad Chaurasia and Deep Narain
    Chaurasia; who are on bail; are convicted u/s
    27 of Arms Act and, consequently, their bail
    3
    bonds are cancelled and are taken into
    custody to serve their sentences.”
  6. All the five accused named above felt aggrieved
    by their respective conviction and the award of jail
    sentence and filed two criminal appeals in the High
    Court.
  7. So far as Kanhai Prasad Chourasia is
    concerned, he filed Criminal Appeal(DB)
    No.112/1994 whereas the remaining four accused
    are concerned, they jointly filed Criminal
    Appeal(DB) No.77/1994 in the High Court of Patna.
    Both the Criminal Appeals were clubbed together for
    hearing.
  8. So far as Criminal Appeal No.112/1994 filed
    by the accused Kanhai Prasad Chourasia is
    concerned, the question to be considered therein
    was only one, namely, whether the Additional
    Sessions Judge was justified in convicting him
    4
    (Kanhai Prasad Choursia) under Section 302 IPC
    read with Section 27 of the Arms Act.
  9. So far as Criminal Appeal No.77/1994 filed by
    remaining four accused, namely, Lukho Prasad
    Chourasia, Birendra Prasad Chourasia, Binod
    Prasad Chourasia and Deep Narayan Chourasia is
    concerned, the question involved therein was
    whether the Additional Sessions Judge was justified
    in convicting these four accused under Section 27 of
    the Arms Act and sentenced them to undergo
    rigorous imprisonment for five years.
  10. The High Court, however, was completely
    under misconception and misdirected itself by
    forming an opinion as if all the five accused were
    convicted under Section 302/149 IPC and
    accordingly went on to appreciate the evidence and
    while dismissing both the appeals by a common
    judgment convicted four accused under Section
    302/149 IPC along with Kanhai Prasad Chourasia.
    5
  11. This is clear from the first and concluding
    paras of the impugned judgment, which are
    reproduced below:
    First Para
    “As both these appeals arise out of a
    judgment dated 8th February, 1994, passed by
    the 12th Additional Sessions Judge, Munger in
    Sessions Trial No. 264/92, convicting the
    appellants under Section 302 of I.P.C. with
    life imprisonment and the other accused for
    offence under Sections 302/149 I.P.C. to life
    imprisonment, so also each of them for
    offence 27 of the Arms Act to five years’ R.I.,
    these appeals have been filed by the
    appellants and they are being disposed of by
    this common judgment.” (Emphasis supplied)
    Concluding Paras
    “Even though learned counsel for the
    appellants by taking us through the evidence
    tried to point out minor contradictions in the
    same, but we find that considering the
    complete reading of the evidence, the story
    as is narrated by the witnesses and as it is
    recorded in the fardbeyan by P.W.5 Sundar
    Tanti is proved. It is a case where the
    appellants after the incident that took place
    in the morning, with an intention to commit
    the crime, armed with rifles and pistols came
    to the spot, committed the offence and while
    fleeing away, to threaten the villagers who
    had assembled there, firing in the air ran
    away. It is a case where they formed an
    unlawful assembly, committed the offence
    6
    and, therefore, conviction under Section 302
    and 302/149 of I.P.C. is proper and as the
    entire conviction is based on the evidence
    that came on record, we see no reason to
    interfere into the matter and allow this
    appeal. The prosecution has proved its case
    and the conviction, in our considered view,
    does not suffer from any infirmity.
    Accordingly, we see no reason to
    interfere into the matter. The appeals being
    devoid of merit are dismissed. The appellants
    are on bail. Their bail­bonds are cancelled.
    They are directed to be arrested and taken
    into custody for undergoing the remaining
    part of their sentence.” (Emphasis supplied)
  12. The effect of the judgment of the High Court is
    three­fold. First, both criminal appeals stand
    dismissed; Second, conviction and sentence of
    Kanhai Prasad Choursia under Section 302 IPC
    read with Section 27 of the Arms Act is upheld; and
    Third, the remaining four accused ­ Lukho Prasad
    Chourasia, Birendra Prasad Chourasia, Binod
    Prasad Chourasia and Deep Narayan Chourasia
    also stand convicted under Section 302 IPC read
    7
    with Section 149 IPC and Section 27 of the Arms
    Act.
  13. It is against this judgment, only one accusedDeep Narayan Chourasia has felt aggrieved and filed
    this appeal by way of special leave in this Court.
  14. So, the question, which arises for
    consideration in this appeal, is whether the High
    Court was right in dismissing the appeal filed by the
    appellant herein.
  15. Having heard the learned counsel for the
    parties and on perusal of the record of the case, we
    are constrained to allow the appeal, set aside the
    impugned judgment of the High Court and remand
    the case to the High Court for re­hearing of the
    appeal in question on merits in accordance with
    law.
  16. In our opinion, the Division Bench failed to
    apply its judicial mind and committed fundamental
    jurisdictional errors as detailed below.
    8
  17. The first error was that 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.
  18. The second error was that the appellant (Deep
    Narayan Chourasia) along with other three accused
    (Lukho Prasad Chourasia, Birendra Prasad
    Chourasia and Binod Prasad Chourasia) were
    acquitted from the charge of commission of offence
    under Section 302/149 IPC by the Additional
    Sessions Judge but were convicted only under
    Section 27 of the Arms Act and were sentenced to
    undergo rigorous imprisonment for five years.
    However, as a result of the High Court’s order, they
    were convicted under Section 302/149 IPC without
    there being any appeal filed by the State against the
    order of their acquittal and without there being any
    9
    notice of enhancement of their sentence issued by
    the High Court suo motu to these four accused.
  19. In other words and as mentioned above, the
    question before the High Court was whether the
    appellant herein (Deep Narayan Chourasia) and
    other three accused were rightly convicted and
    sentenced to undergo rigorous imprisonment for five
    years under Section 27 of the Arms Act by the
    Additional Sessions Judge or not. Instead of
    recording any finding of affirmation of the conviction
    or acquittal, as the case may be, the High Court
    convicted all the four accused under Section
    302/149 IPC also.
  20. The third error was that the High Court failed
    to see that the Additional Sessions Judge had
    acquitted all the accused under Section 149 IPC, yet
    the High Court proceeded to convict all the accused
    under Section 149 IPC without there being any
    appeal filed by the State on this issue.
    10
  21. The fourth error was that though the High
    Court wrongly convicted the appellant along with
    three others for the offence punishable under
    Section 302/149 IPC, yet did not award any
    sentence to any of the four accused under Section
    302/149 IPC.
  22. Since the appellant and other three accused
    were acquitted of the charge under Section 302/149
    IPC by the Additional Sessions Judge, yet the High
    Court convicted them under Section 302/149 IPC
    for the first time, the sentence prescribed under
    Section 302/149 IPC was mandatorily required to
    be awarded to each convicted accused as provided
    under Section 354(3) of the Code of Criminal
    Procedure, 1973.
  23. The effect of the impugned judgment,
    therefore, is that though the appellant along with
    three accused have suffered conviction under
    Section 302/149 IPC but without sentence.
    11
  24. Now, the next question, which arises for
    consideration though not urged by any parties, is
    whether we should set aside the entire impugned
    order or set aside only qua the sole appellant herein
    because the other four accused though suffered
    conviction under Section 302/149 IPC alike the
    appellant herein did not file any appeal against their
    conviction and secondly, the other accused ­ Kanhai
    Prasad Chourasia whose conviction and sentence
    under Section 302/149 IPC read with Section 27 of
    the Arms Act was upheld has also not filed any
    appeal in this Court.
  25. The Constitution Bench of this Court in Durga
    Shankar Mehta vs Thakur Raghuraj Singh & Ors.,
    AIR 1954 SC 520 examined the question as to
    whether the powers conferred upon this Court
    under Article 136 of the Constitution can be
    exercised suo motu to meet the ends of justice in
    favour of non­appealing accused.
    12
  26. The learned Judge B.K. Mukherjea (as he then
    was and later became CJI) speaking for the Bench
    in his distinctive style of writing answered the
    question in affirmative holding that:
    “The powers given by Article 136 of the
    Constitution however are in the nature of
    special or residuary powers which are
    exercisable outside the purview of ordinary
    law, in cases where the needs of justice
    demand interference by the Supreme Court of
    the land. The article itself is worded in the
    widest terms possible. ……. The Constitution
    for the best of reasons did not choose to
    fetter or circumscribe the powers exercisable
    under this article in any way……….
    This overriding power, which has been
    vested in the Supreme Court under Article
    136 of the Constitution, is in a sense wider
    than the prerogative right of entertaining an
    appeal exercised by the Judicial Committee
    of the Privy Council in England.”
  27. This Court has since then consistently
    extended the benefit of the order passed in appeal
    under Article 136 of the Constitution also to those
    accused who had not preferred the appeal against
    their conviction in the light of the aforementioned
    13
    principle in appropriate cases.[see Harbans Singh
    vs. State of U.P. & Ors., (1982) 2 SCC 101,Raja
    Ram & Ors. vs. State of M.P., (1994) 2 SCC 568,
    Chellappan Mohandas & Ors. vs. State of Kerala,
    1995 Supp(1) SCC 259, Dandu Lakshmi Reddy vs.
    State of A.P., (1999) 7 SCC 69, Anil Rai vs. State
    of Bihar, (2001) 7 SCC 318, Bijoy Singh & Anr.
    vs. State of Bihar, (2002) 9 SCC 147, Gurucharan
    Kumar & Anr. vs. State of Rajasthan, (2003) 2
    SCC 698, Suresh Chaudhary vs. State of Bihar,
    (2003) 4 SCC 128, Akhil Ali Jehangir Ali Sayyed
    vs. State of Maharashtra, (2003) 2 SCC 708 and
    Pawan Kumar vs. State of Haryana (2003) 11 SCC
    241].
  28. Having given our anxious consideration to this
    question and keeping in view the aforementioned
    principle of law laid down in decided cases, we are
    of the considered opinion that the entire impugned
    14
    order deservers to be set aside against all the five
    accused.
  29. In our view, 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 nonappealing accused persons also.
  30. It is a fundamental principle of law that 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.
  31. 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
    15
    graver offence (Section 302/149 IPC) without
    affording him of any opportunity to defend such
    charge at any stage of the appellate proceedings.
  32. Needless to say, 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 re­hearing of the appeal at the
    instance of one accused, the benefit of re­hearing of
    the appeal cannot be denied to other co­accused. In
    other words, the non­appealing co­accused are also
    entitled to get benefit of the order of this Court and
    are, therefore, entitled for re­hearing of their
    appeals along with the present appellant.
  33. It is for all these reasons, the impugned order
    stands set aside also qua all the accused persons.
  34. In the light of the foregoing discussion, the
    appeal succeeds and is accordingly allowed. The
    16
    impugned order is set aside in its entirety. Both the
    Criminal Appeals, i.e., Criminal Appeal(DB) No.
    77/1994 and Criminal Appeal(DB) No. 112/1994
    are restored to their original numbers before the
    High Court for their analogues hearing.
  35. We request the High Court to decide both the
    Criminal Appeals on their respective merits in
    accordance with law.
  36. Since the appellant­Deep Narayan Chourasia
    out of his total jail sentence of five years awarded by
    the Additional Sessions Judge for commission of
    offence under Section 27 of the Arms Act has
    already undergone jail sentence of five months, we
    release him (Deep Narayan Chourasia) on bail to the
    satisfaction of the concerned Trial Court pending
    Criminal Appeals before the High Court.
  37. We, however, make it clear that we have not
    expressed any opinion to the factual aspect of the
    case on their respective merits, which is subject
    17
    matter of the two criminal appeals and, therefore,
    the High Court will decide both the appeals on their
    respective merits uninfluenced by any observations
    made by this Court.
  38. A copy of this order be sent to other four
    accused persons by the Registry of this Court to
    enable them to appear before the High Court for
    prosecuting their appeals.
  39. The High Court will issue notice to other four
    accused persons before hearing the appeals, if
    anyone fails to appear. The High Court may also
    consider appointing a lawyer for providing them
    legal assistance.
    .……………………………………..J.
    [ABHAY MANOHAR SAPRE] ……………………………………….J.
    [DINESH MAHESHWARI]
    New Delhi;
    February 25, 2019
    18