Hon'ble Ramesh Sinha,J.
This Court while allowing the Criminal Appeal No. 98 of 2008 and connected criminal appeal vide judgment and order dated 24.7.2012 framed following issue for determination:-
"Whether the High Court while exercising appellate powers under Section 374 (2) of the Code of Criminal Procedure can extend the benefit of its judgment in favour of the non-appealing co-accused tried together, assigned identical role and punished for identical offence by the trial court?".
The registry of the High Court has provided a separate number and has registered the same as Misc. Application No. 227273 of 2012.
Sri P.N. Mishra, learned Senior Advocate, Sri G.S. Chaturvedi, learned Senior Advocate, Sri Satish Trivedi, learned Senior Advocate, Sri Gajendra Pratap, learned Senior Advocate, Sri D.S. Mishra, learned Senior Advocate and Sri Akhilesh Singh, Government Advocate were heard as friends of the court. Counsels have fairly stated the legal position on the issue involved. This Court at the outset records its appreciation for the valuable assistance provided.
Counsels have made reference to the revisional powers conferred upon the High Court under Section 397 and Section 401 Cr.P.C. and inherent powers conferred under Section 482 Cr.P.C. upon the High Court.
On the larger plain, it has been submitted by all the learned Senior Counsels that the High Court is the highest court of justice at the State level. It has been conferred revisional powers under Sections 397 and Section 401 Cr.P.C. and inherent power under Section 482 Cr.P.C. for doing complete justice, and to pass such orders as may be warranted in the facts of the case for securing the ends of justice. All forms of judicial injustice can be impinged upon by the High Court, if it is, so required even suo motu to hold otherwise would be bad for the criminal justice system.
The learned Government Advocate Sri Akhilesh Singh appearing for the State of U.P. has fairly stated before the Court that it can not, be disputed, as a proposition of law, that in exercise of revisional powers as provided under Section 401 Cr.P.C. and under inherent power under Section 482 Cr.P.C. the High Court can suo motu in its discretion pass such orders to do substantial justice or to meet the ends of justice as may be warranted in the facts of the case. It can extend the benefit of its judgment to a non appealing accused when it has come to a conclusion that the conviction and sentence of the appealing accused has been found to be contrary to law and has set aside the same and that the evidence against the non-appealing convicts is even weaker. He further urged that the legal pronouncements of the Apex Court and various High courts cited at bar lead to the same conclusion.
The power of revision as conferred upon the High Court under Sections 397, 401 Cr.P.C. reads as follows:-
"397. Calling for records to exercise powers of revision.
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398.
(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
401. High Court's Powers of revision:-
(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the power conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.
(2) No order under this Section shall be made to the prejudice, of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this Section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interest of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."
It is also relevant to quote Section 439 Cr.P.C. of the Old Cr.P.C. which was para-materia to Section 401 Cr.P.C. of the new Code. It reads as follows:-
"439. High Court's powers of revision.
(i) In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence; and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429.
(ii) No order under this Section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(iii) Where the sentence dealt with under this Section has been passed by a Magistrate acting otherwise than under Section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Presidency Magistrate or a Magistrate of the first class.
(iv) Nothing in this Section applies to an entry made under Section 273, or shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction.
(v) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
(vi) Notwithstanding anything contained in this Section, any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction."
Section 482 Cr.P.C. reads as under :-
"Saving of inherent power of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
The attention of the Court was invited to various decisions wherein the High Court in exercise of its revisional powers under Section 439 Cr.P.C. (of the Old Code) and Section 401 Cr.P.C. (of the present Code) extended the benefit of the judgment of acquittal as made in favour of appealing convict to the non-appealing accused also by setting aside there conviction and sentence in order to do substantial and complete justice. Some of the such judgments are detailed below.
In the case of Broja Rakhal Mozumdar Vs. The Empress reported in C.W.N. Reports Vol 5 1900-1 Page 330 it was held as under:-
"The High Court has power under section 439 of the Code of Criminal Procedure, in a proper case, to deal with the case of accused persons not appealing against their conviction, while considering and trying the appeal preferred by some other persons; and Cl. (5) of the Section does not in any was affect the jurisdiction vested in the High Court to deal with their case."
The Patna High Court in the case of Raghu Bhumij Versus Emperor reported in A.I.R. 1920 Patna 471, it was held as under:-
"Where one of several accused persons has not appealed to the High Court and the case against him is weaker than it is against those who have appealed and are acquitted, it is within the competency of the Court to set aside his conviction also."
In another case the Patna High Court in the case of Mt. Champa Pasin & others Versus Emperor reported in A.I.R. 1928 Patna 326 it was held as under:-
"The High Court is not precluded by sub-Section (5), Section 439, Criminal P.C., from interfering with the conviction of an accused who had not preferred an appeal when the case is before the Court otherwise than at his instance."
The Oudh High Court in its judgment reported in A.I.R. 1934 Oudh 151 Bhagwn Din and others Versus Emperor has held as follows:-
"Where the illegality of the sentence is patent and has come to its notice, the High Court should deal with the matter in the exercise of its power of revision under Section 439."
The Lahore High Court in the case of Pars Ram Versus Emperor reported in 32 Cr.L.J. 1931 Page 700 held as under:-
"There is no warrant for the proposition that the omission of a convict to appeal is by itself sufficient in law, or as a matter of well-established practice, to debar the High Court from examining the record suo motu or on a reference by a Session Judge, or at the instance of a third party, and from passing such order as it thinks appropriate. The prohibition contained in sub-Section (5), Section 439 Criminal Procedure Code, is limited only to those cases in which the Court is asked to interfere at the instance of the party who could have appealed, but has not done so. It leaves untouched the power of the Court to exercise its revisional powers under Sub-Section (1), Section 439, in all other cases. In applying Section 439, however, it is necessary to bear in mind that the powers of the Court under that section, wide though they are, purely discretionary and must be exercised not, as a matter of course, but only to further the ends of justice."
The Calcutta High Court in its judgment reported in 48 Cr.L.J. 1947 Page 46, Abdul Kader and others Versus Emperor, in paragraphs 15 and 16 has observed as under:-
"15. There remains one matter to be considered. In view of our decision that there must be a retrial of the three appellants, it becomes necessary to consider whether any action is called for with regard to the accused No.4, Abdur Rahim, who has not preferred an appeal to this Court and in respect of whom there is no reference before us. The only charge against him was one under Section 120-B/302 I.P.C. of which he has been convicted along with the remaining accused. With respect to that charge, the learned Judge directed the jury inter alia as follows:
"The principal evidence as regard the charge of conspiracy is the evidence of the fact that a murder took place under such circumstances and that such accused persons took part in it. If you disbelieve the evidence of Bahar , Rajab and Ramjan and find that the charge under Section 302 I.P.C. is not proved, then there is practically no evidence of conspiracy, because if Kader, Fazil and Kalu are not murderers, the association between them and the President Union Board will not raise any suspicions."
16. This direction, in our opinion, was correct, and it seems to us inconsistent that the question whether the present three appellants committed the murder should be directed to be investigated, and at the same time, a conviction of another accused person of conspiracy had on the basis that he and the appellants conspire to commit the murder, as evidenced by the fact that the murder was committed in pursuance thereof, should be maintained. As soon as the finding of murder is set aside, the foundation of the conviction of conspiracy, in the circumstances of the case, disappears. We think it all important to bear in mind that the conviction of the remaining co-conspirator of the charge under Section 120-B/302 I.P.C. is being set aside, with the result the Abdur Rahim remains convicted of having conspired with the appellants, while it remains to be found that the appellants,conspired with him. In these circumstances, it does not appear to us right that we should be cognizant of the position and yet refrain from taking any action as regards the conviction of Abdur Rahim. In situations like the present, this Court has set aside the conviction of the non appealing accused in exercise of its revisional powers without giving them any opportunity of being heard, and instances of the exercise of such powers will found in Rajani Kant v. Emperor (10), Broja Rakhal v. Emperor (11), and Mir Mouze Ali v. Emperor (12). In all those cases, however, the result was that the convictions and sentences of the non appealing accused were set aside the they were acquitted. Quite obviously, therefore, the orders were to their advantage."
The Simla High Court in the case of Ram Singh v. The Crown reported in 52 Cr.L.J. 1951 Page 116 held as under:-
"The High Court has power under Section 439, in a proper case to deal with cases of accused persons not appealing against their convictions while considering and trying the appeal preferred by some of the accused persons (In this case the High Court having come to the conclusion that the evidence of the approver was not corroborated in material particulars by reliable evidence acquitted all the three accused including the one who had not appealed)."
The Madhya Pradesh High Court in the case of Ratan Singh Vs. State of Madhya Pradesh reported in 1977 Crl. L.J. 1951 Page 673 has observed in paragraphs 6, 9,10, 12, 14, 16 and 17 as under:-
"6. However, so far as the question of taking the matter for consideration in suo motu exercise of revisional powers of this Court is concerned, we feel that it is a fit case where we must exercise our powers under Section 401 of the Code of Criminal Procedure (1974) in view of the particular facts and circumstances of this case for the reasons stated hereinafter.
9. If the undisputed illegality of conviction has been brought to our notice, we cannot refuse on our part to interfere merely because the accused concerned did not challenge the same by preferring an appeal. However willing an accused may be to submit to the sentence and however negligent or reluctant he might have been in moving this Court by preferring an appeal, this Court will have no hesitation in setting aside his conviction if it was satisfied that the same was illegal.
10. The State is the protector of its subjects and, therefore, it has to see that no innocent person, being its subject, shall suffer a sentence which is unjust and illegal. This duty and privilege of the State is entrusted to the High Court and this is the reason for conferring such wide powers under Section 439 of the Code of Criminal Procedure (old) or Section 401 of the Present Code. In the particular case before us, the Advocate, appearing on behalf of the State, has admitted that the conviction is illegal. It would then be the duty of this Court to interfere, it being immaterial for the purpose as to whether the accused had preferred an appeal or not or by whom and in what manner, we have been informed of the illegality of the conviction and sentence. The records have been requisitioned. The State had been heard. We are of the opinion that even if the judgment and conviction passed by the trial Court were appealable and the accused did not prefer an appeal, the prohibition contained in the provisions of Section 401 (4) of the Code of Criminal Procedure (Section 439 (5) old Cr.P.C.) against entertaining applications for revision against appealable orders, does not prevent this Court in taking the matter suo motu for exercising its revisional powers.
12. It was contended that this Court could make such an order suo motu in exercise of its revisional powers while deciding an appeal of the other accused persons, but could not give relief to the non appealing accused now, when the appeal by other two accused persons had already been dealt with and decided. We do not think that there is any force in this objection also. Once we are inclined to take up the matter suo motu for exercising out revisional powers, there is nothing to prevent this Court from making appropriate directions for setting aside the undisputed illegal conviction and sentence, which unfortunately the accused had suffered for six years. There is an obligation on this Court of superintendence and supervision on subordinate criminal courts to see that the order of conviction passed by such Courts are not illegal and nobody is made to suffer a sentence which is illegal and contrary to law.
14. In the appeal preferred by the other two accused persons Hansram v. State,Criminal Appeal No. 343 of 1970 we found that the prosecution had failed to establish even the identity of the dead body alleged to be the deceased person for whose murder the present applicant had also been convicted along with the other two persons. The fact that the identity of the dead body was not established remains applicable to all the accused persons, who had been convicted for causing the death of Ramu. There is no other evidence against the present applicant except that which had been relied on by the prosecution for the conviction of the two accused persons. We had found that the same was false and cooked up. On the same evidence, when we had held that the conviction and sentence imposed by the Sessions Judge were illegal and contrary to law, we cannot permit the illegal conviction and sentence to be operative in respect of the present applicant by relying too much on the procedural policy of law. It is not a case that we have no power to set aside the conviction even in cases of non-appealing accused. The provisions of Section 439 of the Code of Criminal Procedure (old)=Section 401 of the Code of Criminal Procedure (1974), Permit this Court to take up the case suo motu and make an appropriate order. The only question is of propriety of doing so. We think that there cannot be a better case of propriety and in the interest of justice, we must shift away from technical legalistic. In this context, it will be relevant to quote that by relying too much on the technicalities of procedure at the cost of interests of justice, the Judicature is not to 'aid its own grave-diggers.
16. For exercising revisional power suo motu it is not necessary that the same shall be exercised only while deciding the appeal of the other accused persons. Whenever, the matter is brought to the notice of the Court and the Court is satisfied that in the facts and circumstances of the case, a case is made out for exercising the revisional powers suo motu, it can always do so in the interest of justice.
17. We, therefore, for the reasons stated in out judgment dated 10.3.1976 in Criminal Appeal No. 343 of 1970 (Madh. Pra.) Hansram v. The State of M.P., set aside the conviction and sentence of imprisonment for life imposed on accused Ratan Singh son of Pancham Singh, in suo motu exercise of our revisional powers under Section 401 (439 of the old Code) Code of Criminal Procedure (1974) and direct that he shall be set at liberty forthwith, if not required in any other case. The application moved under Section 482 Cr.P.C. is rejected as not maintainable and the appeal (No.692/76) preferred by Ratansingh is also dismissed being barred by limitation."
The Karnataka High Court in the case of M.P. Ponnamma and another v. The State of Karnataka, reported in 1978 Crl. L.J. 1241 has observed in paragraphs 6, 7, 8 and 9 as under:-
"6. In the course of the judgment, I have mentioned that A-2 and A-3 have not appealed. But, in the view that I have taken in this judgment, I think, this Court must intervene in exercise of its revisional jurisdiction without any appeal by A-2 and A-3. This Court has power under Section 401. Cr.P.C. in a proper case to deal with the cases of accused persons not appealing against their conviction while deciding the appeals preferred by other accused. Section 401 does not in any way affect the jurisdiction vested in this Court to deal with the cases of non-appealing accused.
7. This finds support in Sunilakhya v. H.M. Jadwet (AIR 1968 Cal 266 (1968 Cri L.J. 736). Therein it was pointed out (at p.743 of Cri. L.J.):-
................ Even if a party does not apply to this Court in revision but the said case be brought before the Court by some other party nothing would stand in the way of this Court to exercise its revisional or inherent powers to make such orders as may be necessary for the ends of justice. There is no form of injustice that the long arms of the Court cannot reach the inherent power of the Court is ex debito justitiae to dispense real and substantial justice for the administration of this alone Courts exist.
8. The revisional jurisdiction of the High court is very extensive. There is no form of judicial injustice which this Court, if need be, cannot reach. It would be unfortunate if it were otherwise. This is a case in which the accused were wrongly convicted. It may be pointed out that injustice may equally be done where persons, in fact guilty, are improperly acquitted as well as where innocent persons are convicted. Therefore, this is eminently a fit case in which I should interfere by exercising my revisional powers to set aside the conviction and sentence passed against A-2 and A-3 though they have not appealed.
9. Accordingly, I set aside the conviction and sentence passed against A-2 and A-3 and acquit them. I direct that they be set at liberty forthwith."
Reference has been made to the judgment of Hon'ble Supreme Court reported in (2006) 3 SCC (Crl.) 245, Popular Muthiah Versus State represented by Inspector of police specially paragraphs 27, 29 and 30 which read as follows:-
"27. While exercising its appellate power, the jurisdiction of the High Court although is limited but, in our opinion, there exists a distinction but a significant one being that the High Court can exercise its revisional jurisdiction and/or inherent jurisdiction not only when an application therefore is filed but also suo motu. It is not in dispute that suo motu power can be exercised by the High Court while exercising its revisional jurisdiction. There may not, therefore, be an embargo for the High Court to exercise its extraordinary inherent jurisdiction while exercising other jurisdictions in the matter. Keeping in view the intention of Parliament, while making the new law the emphasis of Parliament being "a case before the court" in contradistinction from "a person who is arrayed as an accused before it" when the High Court is seized with the entire case although would exercise a limited jurisdiction in terms of Section 386 of the Code of Criminal Procedure, the same, in our considered view, cannot be held to limit its other powers and in particular that of Section 482 of the Code of Criminal Procedure in relation to the matter which is not before it.
29. The High Court while, thus, exercising its revisional or appellate power, may exercise its inherent powers. Inherent power of the High Court can be exercised, it is trite, both in relation to substantive as also procedural matters.
30. In respect of the incidental or supplemental power, evidently, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. It is not trammelled by procedural restrictions in that:
(i) Power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused.
(ii) Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefor.
(iii) It is, however, beyond any doubt that the power under Section 482 of the Code of Criminal Procedure is not unlimited. It can inter alia be exercised where the Code is silent, where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law. It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exists."
After perusal of the judgment of the Apex Court in the case of Popular Muthiah (Supra) and various judgments of the different High Courts, we find that the High Court in its discretion can exercise suo motu powers to do substantial and complete justice even when it is exercising its appellate powers both with respect to substantive as well as procedural matters and no formal application is required to be filed.
We may repeat what has been recorded in the case of M.P. Ponnamma and another (Supra):-
"There is no form of judicial injustice which this Court, if need be cannot reach. It would be unfortunate if it were otherwise."
Having noticed the statutory and legal principles applicable, we may now turn to the question as framed by us on 24th July, 2012.
From a reading of Sections 397 and 401 of the Criminal Procedure Code, it is apparently clear that Criminal Procedure Code confers two revisional powers upon the High Court, first under Section 397 and the other under Section 401.
Power under Section 397 of the Code of Criminal Procedure is available to the High Court as well as Sessions Court while the revisional power under Section 401 is available to the High Court only.
From sub-section (3) of Section 397, it is clear that such revisional power is invoked basically on an application being filed by any person either before the High Court or before the Sessions Court and cannot be exercised in respect of an interlocutory order. Ref. Section 397 (2).
From the reading of Section 401 of the Cr.P.C. it is apparently clear that the High Court may, in any proceedings, the records of which have been been called for by it or otherwise, have come to its knowledge, may in its discretion, exercise any of the powers conferred on a Court of appeal under Sections 386, 389, 340, 391 or on a Court of Sessions under Section 307 of the Criminal Procedure Code. This power is in an addition to the revisional power, which has been conferred under Section 397 of the Criminal Procedure Code. It is logical to hold that Section 401 of the Criminal Procedure Code confers some additional powers upon the High Court, vis-a-vis, those conferred under Section 397 of the Criminal Procedure Code.
The only statutory requirement for exercise of power under Section 401 of the Criminal Procedure Code by the High Court is that the records of the proceedings must be before it. The records may have been called for by the High Court or the record may have come to the knowledge of the Court otherwise. On the records being before the Court, a discretion is conferred upon the High Court to exercise the revisional power which is statutorily extended to the powers of the appellate court as conferred under Sections 386, 389, 340, 391 or on a Sessions Court under Section 307 of the Criminal Procedure Code, as the facts on record may require in the interest of justice.
It is needless to emphasize that the appellate court under Section 386 can pass an order thereunder only when the appellant has approached the Appellate Court and is present before it [reference Section 386 (1) of the Cr. P.C.]. Such is not the requirement of Section 401 of the Criminal Procedure Code, therefore, even in absence of the person concerned being before the High Court under Section 401, it may proceed to pass an order as provided for under Section 386 of the Criminal Procedure Code for the appellate court.
In our opinion, Section 401 of the Criminal Procedure Code itself is the source of power for the High Court to pass orders inconformity with Section 386 of the Criminal Procedure Code in favour of non-appealing convicts also provided the Court in its discretion finds it just and proper and in the interest of substantial justice to do so.
For the aforesaid conclusion, there is another reason, which may be highlighted by way of an example i.e. while hearing an appeal, the High Court may come to a conclusion that punishment/conviction, in the given set of facts, is required to be enhanced with reference to the powers vested in it under sub-section (c) of Section 386 of the Cr.P.C. In view of Proviso 1 to Section 386 of the Criminal Procedure Code, it is obligatory that the Court must issue notice to the appellants and to pass an order for enhancement of the punishment only after affording opportunity of hearing to them, but this exercise can be undertaken against the appellants present before the appellate court in view of Section 386 (1). The question, which remain, is what happens in such a situation qua the non-appealling convicts, can the High Court permit such non-appealing convicts to avail the benefit of an illegal order of the Court below, and not to enhance their punishment only because such non-appealing convicts had not approached the High Court by way of appeal. The answer is obviously no. In such circumstances, the High Court draws powers from Section 401 of the Code of Criminal Procedure. Even when the non-appealing appellants have not filed any appeal, a notice can be issued to them to show-cause as to why their punishment may not be similarly enhanced. Ref Section 401 (2).
An issue may be raised that such power under Section 401 is not available with the High Court in cases where an appeal is provided and in fact such appeal has not been preferred by the person concerned in view of the bar contained in sub-section (4) of Section 401 of the Code of Criminal Procedure.
The issue is no more res integra. A Full Bench of this Court in the case of Smt. Shaila Bala Devi vs. Emperor reported in 34 Cr.L.J. (1993) 1115, at page 1117 and page 1118 has held as follows:
"A High Court can interfere in revision (1)When the record has been called for by itself;
(2)When the case has been reported to it for orders by a subordinate court or (3)When the proceeding otherwise comes to its knowledge. Obviously there may be many ways in which the proceeding comes to the knowledge of the court, one being information supplied by a third party. The court is certainly entitled to receive such information and to act upon it at its option.
.......................
The second question is whether an application in revision should be entertained when the person convicted has failed or refused to avail himself of the right of appeal allowed by law. Section 139 (5) provides that where an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. Thus if an accused person fails to avail himself of his right of appeal, the Legislature has prohibited his moving the Court in revision. It would, therefore, be anomalous if an application by the accused himself were barred but an application in revision by his relation, friend or servant would be entertainable, for such a view would enable an accused person to evade the prohibition contained in the sub-section and get an application in revision filed through a relation, friend or servant.
In the view that I take of the character of an application made by a third party, namely, that it is merely an information to the Court, there is not the same incongruity. If an application in revision by an accused is barred an application in revision by every one else made at this instigation would be equally barred. I do not think that the words "at the instance of the party who could have appealed" in sub-s. 5 of s. 439 at all imply that a third party can make such an application at the instigation of such an accused.
It was necessary to use that expression so that the Crown or the complainant or the court itself may not be debarred. But there would be nothing to prevent the court from receiving information or acquiring knowledge from any source whatsoever and acting upon it, and this information or knowledge can be derived from an application filed before the Court by any one else.
My answer to the second question, therefore, is that an application in revision would not be entertainable, if the accused has failed to avail himself of his right of appeal; but that the Court can receive information or knowledge from a third party and act upon it of its own accord."
Having reached the aforesaid conclusion, we hold that Section 401 of the Code of Criminal Procedure is in itself a complete answer to the question framed by us vide order dated 24th July, 2012. The power to grant benefit, to non-appealing co-accused tried together, assigned identical role and punished for identical offence by the trial court, can be exercised by the High Court with reference to powers vested in it under Section 401 of the Code.
Besides the aforesaid, we may also refer to the inherent powers, which have been conferred upon the High Court under Section 482 of the Criminal Procedure Code to be exercised in the interest of substantial justice and to prevent the abuse of the process of the Court or to secure the ends of justice.
The Apex Court in the case of Akhil Ali Jehangir Ali Sayyed vs. State of Maharashtra reported in (2203) 2 SCC 708 has laid down that the detention of an accused who is placed in the same situation (if not lesser than the appellant, who has been granted relief) would be per se violative of Article 21 of the Constitution of India and the Court shall not deny the same relief to the non-appealing accused. Relevant paragraph-6 of the judgment of the Apex Court reads as follows:-
"6. The above is not enough to dispose of this matter. As the second accused Jabbar was placed in the same situation as the appellant in this case (if not lesser), Article 21 of the Constitution would not permit us to deny the same benefit to the second accused, notwithstanding the fact that the SLP and the review application filed by him have been dismissed by this Court."
Reference may also be had to the judgment of the Apex Court in the case of Madhu vs. State of Kerala reported in (2012) 2 SCC 399, wherein the Apex Court in paragraph-17 of the judgment, has held that once the judgment of conviction is set aside the detention of non appealing convicts would be without authority of law, it infringes upon the right to personal liberty guaranteed to the citizen as enshrined under Article 21 of the Constitution of India.
In the facts of this case while hearing the appeal, the records of Sessions court were called for and, were before us. This satisfies the mandatory requirement of initial part of Section 401 Cr.P.C. We had perused the records, while deciding the appeals of the appellants, we have come to the conclusion that there is no material evidence to establish that an offence under Sections 395, 397, 412 and 506 I.P.C. has been committed by the accused. An offence under Section 411 I.P.C. alone was found to have been committed by them for which they were held guilty and convicted and sentenced accordingly.
The evidence against the non-appealing accused, namely, Muneer and Viplav if not weaker, stands on identical footing. There is no evidence against them also for an offence under Sections 395, 397, 412 and 506 I.P.C. being made out. Hence their conviction is also found to be contrary to law. Therefore, the same has also to be set aside. They are found to have committed an offence under Section 411 I.P.C. only as as per the evidence on record.
We, therefore, for the reasons stated in detail in our judgment dated 24.7.2012 passed in Crl. Appeal No. 98 of 2008, Gaffar @ Faruq and other connected appeals set aside the conviction for the offence under Sections 395, 397, 412 and 506 I.P.C. and the sentence or imprisonment for life etc. as imposed on non-appealing accused Muneer and Viplav also. They are convicted for an offence under Section 411 Cr.P.C. only. They are sentenced for three years R.I. with a fine of Rs. 1,000/- each, in case of default with two months further rigorous imprisonment in suo motu exercise of our revisional powers under Section 401 (1) Cr.P.C.
We have been informed that the said two non appealing accused have already undergone imprisonment for more than six years and they are presently in jail. Hence they are held to have served out the sentence inflicted upon them by us. It is directed that they shall be set at liberty forthwith, if not required in any other case.
Ordered accordingly.
Dated:-7.8.2012 Shiraz