Back
2012 Supreme(All) 1990
[2012(8) ADJ 459 (DB)]
ALLAHABAD HIGH COURT
BEFORE : ARUN TANDON AND RAMESH SINHA, JJ.
FARUK @ GAFFAR ....Petitioner
Versus
STATE OF U.P. ....Respondent
(Criminal Misc. Application No. 227273 of 2012 In Criminal Appeal No. 98 of 2008, decided on 7th August, 2012)
Counsel :
Kapil Tyagi, R.P. Tyagi, S.K. Tyagi and Sunil Singh for the Petitioner; G.A. for the Respondent.
Headnote:(A) Criminal Procedure Code, 1973—Sections 374(2), 397, 401, 482, 386—Appellate power—Non-appealing co-accused—Extension of benefit—Whether High Court while exercising appellate powers under Section 374(2) of Cr.P.C. can extend benefit of its judgment in favour of non-appealing co-accused tried together, assigned identical role—And punished for identical offence by tried Court—Section 401 itself is source of power for High Court to pass order inconformity with Section 386 in favour of non-appealing convicts—Also provided Court in its discretion finds it just and proper—And in interest of substantial justice to do so—Power to grant benefit, to non-appealing co-accused tried together, assigned identical role—And punished for identical offence by trial Court—Can be exercised by High Court with reference to powers vested in it under 401 of Code—In facts of this case while hearing appeal, records of Sessions Court were called for and were before High Court—This satisfied mandatory requirement of initial part of Section 401—Benefit can be extended to non-appealing co-accused. [Paras 21, 23, 24, 27 and 28]
(B) Criminal Procedure Code, 1973—Sections 397 and 401—Revisional powers—High Court—First under Section 397 and second under Section 401—Revisional powers under Section 397 is available to High Court as well as Sessions Court—While revisional power under Section 401 is available to High Court only. [Para 19]
(C) Criminal Procedure Code, 1973—Sections 397 (2) and 397 (3)—Revisional powers—Interlocutory order—Invoking of—Basically on an application being filed by any person—Either before High Court or before Court of Sessions—Revisional powers cannot be exercised in respect of an interlocutory order. [Para 19]
(D) Criminal Procedure Code, 1973—Section 401—Additional power—High Court—Exercising of—High Court may, in any proceedings, records of which have been called for by it—Or otherwise have come to its knowledge—May in its discretion, exercise any of powers conferred on—Court of appeal under Sections 386, 389, 340 and 391—Or on a Court of Sessions under Section 307—This power is in an addition of revisional power—Which has been conferred under Section 397—Hence, Section 401 confers additional power. [Para 20]
(E) Criminal Procedure Code, 1973—Section 401—Power of High Court—Exercising of—Only statutory requirement for exercising power under Section 401 by High Court is that—Records of proceedings must be before it. [Para 21]
Result; Order Accordingly.
By the Court.—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.
2. 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.
3. 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.
4. The learned Government Advocate Sri Akhilesh Singh appearing for the State of U.P. has fairly stated before the Court that it cannot, 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.
5. 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 h
