Whether court should grant benefit of acquittal of appealing accused to non-appealing accused?

 Mr. Mrinal Kanti Mandal, learned Advocate is right in submitting that in certain cases this Court had granted benefit even to a non-appealing accused. In Bijoy Singh v. State of Bihar MANU/SC/0333/2002 : 2002 (8) SCC 147, this Court observed that if on evaluation of the case, a conclusion is reached that no conviction of any accused was possible the benefit of that decision must be extended to the similarly situated co-accused even though he had not challenged the order by way of the appeal. To similar effect was the dictum of this Court in Suresh Chaudhary v. State of Bihar MANU/SC/0185/2003 : 2003 (4) SCC 128 and in Pawan Kumar v. State of Haryana MANU/SC/0508/2003 : 2003 (11) SCC 241 and in Mohinder Singh and Anr. v. State of Punjab and Ors. MANU/SC/0696/2003 : 2004 (12) SCC 311.

20. In the circumstances we allow the present appeal, set aside the judgments of conviction recorded by the courts below against the Appellant and acquit him of all the charges leveled against him. We further direct that the benefit of this acquittal and our decision will also enure to the advantage of the non-appealing accused namely Sk. Sahid @Bablu.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1953 of 2010

Decided On: 06.01.2017

Md. Sajjad Vs.State of West Bengal

Hon'ble Judges/Coram:

Pinaki Chandra Ghose and U.U. Lalit, JJ.

Citation: (2017) 8 SCC 757

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Whether second appeal by non-appealing party is maintainable?

 As noticed above, the short question falls

consideration is whether a second appeal challenging the

decision of the trial court as confirmed in appeal is maintainable

at the instance of a defendant who did not challenge the

decision of the trial court in appeal. It is now settled by a long

catena of decisions that only a person who is aggrieved by the

appellate decree is entitled to file a second appeal (See

Banarsi v. Ram Phal [(2003) 9 SCC 606]).
Rule 4 of Order 41 of the Code confers power on the appellate

court to reverse or vary the decision appealed against in favour

of a non-appealing party, if the appeal proceeds on a ground

common to all. The policy of this rule is to avoid contradictory

decisions on same questions. Rule 33 of Order 41 of the Code

confers power on the appellate court to pass any decree and

make any order which ought to have been passed or made or

make such further or other decree or order as the case may

require, notwithstanding that the appeal is as to part only of the


decree, in favour of all or any of the parties, although such

parties may not have filed any appeal or cross objection. The

policy of     this rule is to enable the appellate court to do

complete justice to the parties. The power of the court under

the aforesaid rules can be exercised by the court only as a

necessary consequence of the reliefs to be granted to the

appellant when the court finds that the appeal must succeed on

its merits and not independent of it. As such, merely for the

reason that the appellate court has power to interfere with the

decree passed by the trial court against a non-appealing party,

it cannot be said that the decree against the non-appealing

party is also the subject matter of the appeal. If the correctness

of the decree passed by the trial court against the fifth

defendant was not the subject matter of the appeal, it cannot

be said that there is any reason for the fifth defendant to feel

aggrieved by the decision of the appellate court.       If the fifth

defendant cannot be treated as a person aggrieved by the

decision of the appellate court,    it cannot be said that he is

entitled to challenge the decision of the appellate court in a


second appeal. If it is held that the fifth the defendant is

entitled to challenge the decree of the trial court as confirmed

by the appellate court in a second appeal, the said decision will

have the effect of conferring on the fifth defendant a right to

prefer a second appeal directly against the decision of the trial

court.  A similar view has been taken by the High Court of

Madras in Perumal v. Gurunathan and others (AIR 1996

Madras 415).      The learned Senior Counsel for the appellant,

relying on the decision of the Andhra Pradesh High Court in

P.Narasimham v. P.V.Narasimham               (AIR 1973 Andhra

Pradesh 162), contended that where a suit was decreed against

all the defendants on a common finding and if the common

finding is reversed in appeal by one of the defendants, the

other defendants can certainly challenge the decision of the

appellate court. The said decision cannot have any application

to the facts of the present case, for, the same was a case where

the appellate court allowed the appeal and varied the decision

of the trial court. As far the present case is concerned, the

appellate court has only confirmed the decision of the trial



court.      For the aforesaid reasons, I hold that this second

appeal    is not maintainable and the same is, accordingly,

dismissed.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                      THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

       Dated:18TH DAY OF NOVEMBER 2015

                                            RSA.No. 726 of 2014 (C)
                                     
            THOMAS GEORGE, 
Vs
         A.T.JOSEPH, 

        Citation;AIR 2016(NOC)274 kerala

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