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PATNA HIGH COURT
P.S.Mishra and S.H.S.Abidi JJ.
Ram Ishwar Chaudhary
Versus
State Of Bihar
Criminal Miscellaneous Case No. 812 of 1985 ;
Decided On : JULY 5, 1985
CRIMINAL APPEAL - ABATEMENT - DEATH OF RESPONDENT DURING PENDENCY OF APPEAL - EFFECT ON APPEAL AGAINST OTHER RESPONDENTS - INHERENT JURISDICTION OF HIGH COURT - SCOPE OF SECTION 482, CR.P.C.
Fact of the Case:
During the pendency of a Government Appeal against the acquittal of several accused persons, one of the respondents, Suryadeo Choudhary, died. The petitioners, who were co-accused in the same appeal, filed a petition invoking the inherent jurisdiction of the High Court, seeking a declaration that the appeal had abated on Suryadeo Choudhary's death and that the judgment convicting them was a nullity.
Finding of the Court:
The High Court held that the appeal against Suryadeo Choudhary had indeed abated due to his death, and the judgment convicting him was void. However, the court clarified that the abatement of the appeal against Suryadeo Choudhary did not affect the appeal against the other petitioners, as their convictions were based on their individual roles in the crime and were not dependent on Suryadeo Choudhary's involvement.
Issues: 1. Whether the appeal against acquittal abates in case of death of one of the respondents during the pendency of the appeal? 2. Whether the abatement of the appeal against one respondent affects the appeal against other respondents? 3. Whether the High Court can exercise its inherent jurisdiction under Section 482, Cr.P.C., to record the abatement and close the case against the deceased respondent?
Ratio Decidendi: 1. The court interpreted Section 394(1) of the Code of Criminal Procedure (Cr.P.C.) and held that the abatement of an appeal under Section 378 of the Cr.P.C. (appeal against acquittal) is limited to the case of the individual accused who is dead. 2. The court reasoned that the right to appeal against acquittal is conferred upon each accused individually, and the death of one accused does not affect the appeal against the other accused. 3. The court held that Section 482 of the Cr.P.C. empowers the High Court to make orders necessary to give effect to any order under the Code or to prevent abuse of the process of any court. The court found that the pronouncement of conviction against a dead person was an error that could be corrected under Section 482, notwithstanding the bar provided under Section 362 of the Cr.P.C., which prohibits the alteration or review of a judgment once it is signed.
Final Decision: The High Court dismissed the petitioners' application, holding that the abatement of the appeal against Suryadeo Choudhary did not affect their convictions. The court directed that the judgment convicting the petitioners would stand, except for the portion convicting Suryadeo Choudhary, which was declared void.
PRABHA SHANKAR MISHRA, J.
1. The petitioners, who are ten in number have moved this Court involving its inherent jurisdiction for a declaration that Government Appeal No. 14 of 1977, stood abated on the death of a respondent therein, namely Suryadeo Choudhary, son of Ram Milan Choudhary, resident of village Kussi, police station Karakat, district Rohtas, who died during the pendency of the appeal, and accordingly the judgment in the said Government Appeal converting the acquittal of the respondents therein into conviction for various offences is a nullity.
2. In the trial thirteen persons were charged for the offences punishable under Ss. 302, 302/34, 302/149, 147 and 148, Penal Code and S. 25(1)(a), Arms Act.
3. The learned 4th Additional Sessions Judge, Arrah, however, found petitioner 8, Sarju Choudhary and petitioner 6, Bhagwati Choudhary guilty under S. 304, Part I, Penal Code and petitioner 1, Ram Ishwar Choudhary and petitioner 10 Anjani Choudhary guilty for the offence punishable under Sec. 304 Part I read with Sec. 34, Penal Code, and, accordingly convicted them and sentenced them to undergo rigorous imprisonment for five years each. He also found them guilty for the offence under S. 25(1)(a), Arms Act, and sentenced them to undergo rigorous imprisonment for six months each.
4. While those four, who were convicted, moved this Court in Criminal Appeal No. 81of 1977, the respondent State preferred two Government Appeals, being Government Appeals Nos. 14 and 15 of 1977. Government Appeal No. 14 of 1977 was directed against the acquittal of the petitioners and others by the learned Fourth Additional Sessions Judge, Arrah, Government Appeal No. 15 of 1977 was preferred to this Court by the respondent State for enhancement of the sentence passed against the four convicted accused persons under Sec. 304 Part I and Sec. 304, Part I read with Sec. 34, Penal Code.
5. All the three appeals were heard by a Bench of this Court consisting of brother P.S. Sahay, J. and brother Abidi, J. By a judgment delivered on 8-11-1984, petitioners, Ram Ishwar Choudhary, Ajani Choudhary, Bali Choudhary, Lachman Choudhary and Sarju Choudhary have been convicted under S. 302/34, Penal Code, and other petitioners have been convicted under S. 302/149, Penal Code; some of them have been convicted under S. 148, Penal Code; some of them have been convicted under S. 147, Penal Code, and some are convicted under S. 25(1)(a), Arms Act, as well. Surajdeo Choudhary, who was one of the respondents in Government Appeal, 14 of 1977, was found guilty for the offence punishable under S. 302/149, S. 148, Penal Code and S. 25(1)(a), Arms Act.
6. At the hearing of the appeal Surajdeo Choudhary was duly represented by Mr. Brij Kishore Prasad and Rama Shankar Prasad, Advocates. The fact that he had died on 17-2-1983 was not brought to the notice of the court any time before the hearing of the appeal or the judgment delivered on 8-11-1984. The petition invoking inherent jurisdiction of this court, to avoid the judgment, has, however, been filed stating the fact that Surajdeo Choudhary died on 17-2-1983 within the jurisdiction of Sasaram police station and alleging that the respondent State did not bring the said fact to the notice of this court deliberately and knowingly.
7. This application has been admitted to hearing to consider, whether any ex facto notice of the death taking place during the pendency of the appeal can be taken by the court after the judgment is delivered and signed and abatement can be applied accordingly, and whether the abatement shall apply to the whole appeal when one of the respondents dies during the pendency of the appeal.
8. Mr. Trikha, who has appeared for the petitioners at the hearing of the appeal, has contended, (i) that the appeal in case of acquittal shall abate even if one of many respondents in the case dies; (ii) the abatement shall bring to an end the proceeding in appeal, so that nothing shall remain for determination
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