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.
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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
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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
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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
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(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.
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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
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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
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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.
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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
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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.
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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.
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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.
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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
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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
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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
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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
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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
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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
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