DEEP NARAYAN CHOURASIAversusSTATE OF BIHAR

                        [2019] 4 S.C.R. 521                             521


                 DEEP NARAYAN CHOURASIA                                 A
                                 v.
                        STATE OF BIHAR
                 (Criminal Appeal No. 180 of 2019)
                       FEBRUARY 25, 2019                                B
              [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          C
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      D
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                 E
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       F
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      G
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       H
                                521
522            SUPREME COURT REPORTS                       [2019] 4 S.C.R.


A     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
B
      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,
C     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
D     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
E     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
F     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
G     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
H
     DEEP NARAYAN CHOURASIA v. STATE OF BIHAR                523


impugned order stands set aside also qua all the accused     A
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     B
     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   C
     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   D
     (2003) 2 SCC 708; Pawan Kumar v. State of Haryana
     (2003) 11 SCC 241 : [2003] 1 Suppl. SCR 710 – relied
     on.
                    Case Law Reference
                                                             E
[1955] SCR 287               followed              Para 25
[1982] 3 SCR 235             relied on             Para 27
[1994] 2 SCR 114             relied on             Para 27
(1995) Supp (1) SCC 259      relied on             Para 27
                                                             F
[1999] 1 Suppl. SCR 535      relied on             Para 27
[2001] 1 Suppl. SCR 298      relied on             Para 27
[2002] 3 SCR 179             relied on             Para 27
[2003] 1 SCR 60              relied on             Para 27   G
(2003) 4 SCC 128             relied on             Para 27
(2003) 2 SCC 708             relied on             Para 27
[2003] 1 Suppl. SCR 710      relied on             Para 27
                                                             H
524            SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      180 of 2019.
            From the Judgment and Order dated 14.11.2017 of the High Court
      of Judicature at Patna in Criminal Appeal (DB) No. 77 of 1994.
            Brajesh Kumar, A. P.Sinha,. Saurav Kumar, Advs. for the
B     Appellant.
            The Judgment of the Court was delivered by
             ABHAY MANOHAR SAPRE, J. 1. This appeal is filed against
      the final judgment and order dated 14.11.2017 passed by the High Court
C     of Judicature at Patna in Criminal Appeal (DB) No.77 of 1994 whereby
      the High Court dismissed the appeal filed by the appellant herein.
            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
D     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.
E
            4. By judgment dated 08.02.1994, the Additional Sessions Judge
      convicted the accused-Kanhai 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 rigorous imprisonment for seven years under Section 27 of
F
      the Arms Act. Both the sentences were to run concurrently.
             5. So far as co-accused-Lukho 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
G     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:

H
      DEEP NARAYAN CHOURASIA v. STATE OF BIHAR                                525
             [ABHAY MANOHAR SAPRE, J.]

      “Accordingly, on the basis of my findings, accused Kanhai               A
      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
                                                                              B
      27 of Arms Act and, consequently, their bail 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.                                                    C

       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.                                                                  D

       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 (Kanhai Prasad Choursia) under Section
302 IPC read with Section 27 of the Arms Act.                                 E

       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        F
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           G
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.

                                                                              H
526                SUPREME COURT REPORTS                     [2019] 4 S.C.R.


A          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
            8 February, 1994, passed by the 12th Additional Sessions
              th
B           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.,
C           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
D           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,
E
            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
F           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.
G
                 Accordingly, we see no reason to interfere into the
            matter. The appeals being devoid of merit are dismissed.
            The appellants are on bail. Their bail-bonds are cancelled.
            They are directed to be arrested and taken into custody
            for undergoing the remaining part of their sentence.”
H                                          (Emphasis supplied)
      DEEP NARAYAN CHOURASIA v. STATE OF BIHAR                               527
             [ABHAY MANOHAR SAPRE, J.]

       12. The effect of the judgment of the High Court is three-fold.       A
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
                                                                             B
under Section 302 IPC read with Section 149 IPC and Section 27 of the
Arms Act.
       13. It is against this judgment, only one accused- Deep Narayan
Chourasia has felt aggrieved and filed this appeal by way of special
leave in this Court.
                                                                             C
      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       D
aside the impugned judgment of the High Court and remand the case to
the High Court for re-hearing 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.      E
      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             F
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
                                                                             G
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 notice of enhancement of their sentence issued by the High
Court suo motu to these four accused.
                                                                             H
528            SUPREME COURT REPORTS                         [2019] 4 S.C.R.


A            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
B
      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
C     Section 149 IPC without there being any appeal filed by the State on this
      issue.
            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
D     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
E     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.
F
             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
G     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.

H
      DEEP NARAYAN CHOURASIA v. STATE OF BIHAR                              529
             [ABHAY MANOHAR SAPRE, J.]

       25. The Constitution Bench of this Court in Durga Shankar Mehta      A
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 non-appealing accused.
     26. The learned Judge B.K. Mukherjea (as he then was and later         B
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,            C
      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……….                                                           D

      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.”                                                  E

       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 principle in appropriate cases.[see
Harbans Singh vs. State of U.P. & Ors., (1982) 2 SCC 101,Raja               F
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               G
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].

                                                                            H
530             SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A            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 order
      deservers to be set aside against all the five accused.
            29. In our view, an order, which is based entirely on wrong factual
B     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.
             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
C     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)
D     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.
              32. Needless to say, if the other four accused had filed the appeals
E     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
F     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 impugned order is set aside in its entirety.
G
      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.
H
       DEEP NARAYAN CHOURASIA v. STATE OF BIHAR                                 531
              [ABHAY MANOHAR SAPRE, J.]

       36. Since the appellant-Deep Narayan Chourasia out of his total          A
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.
                                                                                B
       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 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.
                                                                                C
      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           D
may also consider appointing a lawyer for providing them legal assistance.


Devika Gujral                                                 Appeal allowed.


                                                                                E




                                                                                F




                                                                                G




                                                                                H