SC: Order illegal for 1 accused, is illegal for non-appealing co-accused too

Today, i.e. on 25th February 2019, the Hon’ble Supreme Court, in the matter of Deep Narayan Chourasia v. State of Bihar pronounced that in an appeal filed by the accused, instead of recording any finding of affirmation of the conviction or acquittal, as the case may be, the High Court cannot convict the accused under sections other than those on which the accused has been convicted/acquitted by the lower court, unless there is an appeal filed by the state on this issue.

The Hon’ble Supreme Court observed that:

In an appeal filed by the accused, instead of recording any finding of affirmation of the conviction or acquittal, as the case may be, the High Court cannot convict the accused under sections other than those on which the accused has been convicted/acquitted by the lower court, unless there is an appeal filed by the state on this issue. (This inference has been drawn on the basis of Para 19 and Para 20)

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. (Para 29)

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. (Para 30)

It will be a travesty of justice delivery system where an accused, who is convicted of a lesser offence and was acquitted of a graver offence is made to suffer conviction for commission of a graver offence without affording him of any opportunity to defend such charge at any stage of the appellate proceedings. (Para 31)

Copy of judgement: Judgement_25-Feb-2019

-Tushar Kaushik

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