J.P. Bajpai, J.
1. This order shall govern the disposal of Criminal Appeal No. 692 of 1976 (Ratansingh v. The State of Madhya Pradesh), also.
2. The facts giving rise to this Miscellaneous Criminal case and the aforesaid criminal appeal are as below:
Hansram Raisingh and Ratansingh (present applicant and appellant in Criminal Appeal No. 692/76) were convicted by the Sessions Judge, Balaghat for the offences punishable under Section 302 read with Section 34 and Section 201 of the Indian Penal Code for committing murder of Ramu and causing disappearance of the dead body of Ramu with intent to suppress the evidence of murder and were sentenced to imprisonment for life, each.
3. Accused Hansram and Raisingh preferred an appeal from jail against the aforesaid judgment of conviction and sentence of life imprisonment. However, the present applicant Ratansingh (appellant in Criminal Appeal No. 692/76) did not do so. The memo of appeal annexed with the prescribed form of preferring the appeal from jail, however, mentioned the names of all the three accused persons as appellants. The same was, however, signed only by two accused persons, namely, Hansram and Raisingh. Criminal Appeal No. 343/70 was registered in this Court on the aforesaid memo of appeal at the instance of two accused persons only. The said appeal was heard by us and we came to the conclusion that the convictions and sentences awarded to the appellants were absolutely illegal and could not be sustained. We also found that there was no evidence to establish the identity of the dead body so as to establish the death of Ramu. The convictions based only on extra judicial confessions without any corroboration from other pieces of evidence and circumstances were set aside and the two appellants (accused persons) were acquitted. At the time of deciding the aforesaid appeal Cr. No. 343/70, it escaped our notice that the third accused Ratansingh had not preferred any appeal.
4. Thereafter, the third accused, i.e. the present applicant (appellant in criminal appeal No. 692/76) had filed an application requesting this Court to consider his case and set aside the conviction and sentence which had been found to be illegal, even in the absence of any appeal preferred by him. The said application was moved under the provisions of Section 482 of the Code of Criminal Procedure seeking to invoke the inherent powers of this Court. Thereafter, an appeal Cr. A. No. 692/76 was also filed with an application seeking condonation of delay of about six years. In the alternative, a suggestion was also made by the counsel appearing for the accused that in case it was not found possible to invoke the inherent powers to give necessary relief to the accused or to condone the delay of six years in filing the appeal, this Court may take up the matter suo motu in exercise of its revisional powers under Section 401 (439-old) of the Code of Criminal Procedure (1974) to grant the necessary relief. The State bad been noticed and heard in both the cases.
5. It was not disputed by Shri Mukherjee, the Advocate appearing on behalf of the State, that the conviction and sentence imposed on the third accused (the present applicant) were also illegal in the light of the judgment given by this Court in Criminal Appeal No. 343/70 preferred by two accused persons, as there was no other circumstance or additional evidence to implicate the present applicant and thereby to distinguish the case of the present applicant. The application seeking relief by invoking inherent powers of this Court and condonation of delay in filing the appeal and request for taking the matter suo motu by this Court for exercising its revisional powers, were opposed by the State on the following grounds:
(i) That in view of the specific provisions made in the Code of Criminal Procedure for challenging the judgment of conviction and sentence, there was no case for invoking the inherent powers of this Court under Section 482, Cr.P.C. (1974).
(ii) That the appeal was abnormally delayed and the mere fact that subsequently in an appeal preferred by the other accused persons, the entire case of the prosecution was found to be false, does not amount to sufficient cause for condoning the delay;
(iii) That since the judgment of conviction and sentence passed by the Sessions Court were appealable, this Court should not interfere suo motu in exercise of its revisional powers at the request of the accused, who could and should have preferred a regular appeal.
5. So far as the first two objections raised on behalf of the State are concerned, we feel that they are liable to be upheld and we are not inclined to invoke the inherent powers of this Court or to condone the delay for which no sufficient cause exists and when the contents of the application moved in this respect, even if assumed to be true, do not disclose any sufficient cause at all.
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.
7-8. We have already found in Hansram v. The State of Madhya Pradesh, Cri. App. No. 343 of 1970 (Madh Pra) that the identity of the dead body itself was not established. The conviction was based purely on extra judicial confessions found to be in highly unnatural circumstances. There was nothing on record of the Sessions Court to corroborate the same, According to us, the convictions and sentences awarded to all the three accused persons were absolutely illegal. It is true that since the appeal was only by the two accused persons (Hensram and Raisingh), our judgment could not be operative for setting aside the conviction of the present applicant (appellant Ratansingh in Criminal Appeal No. 692/ 76).
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 wilting 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 en 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.
11. It was contended that it was not a case of giving an information by a third party but was an application by the accused himself, who was a party to the trial and who had not preferred any appeal, his application could not be treated as an information given by a third party to the Court. We do not find any force in this objection. If the High Court could act in revision at the instance of a person, who was not a party directly interested, then why not when otherwise informed. So far as the exercise of revisional powers suo motu is concerned, it will be relevant to quote that it is immaterial who had sparked the plugs of the Court system. 'What is material and what merits is the right or wrong of the relief.' We cannot forget that the revisional jurisdiction of this Court under the Code of Criminal Procedure is in its real purpose not only a power but also a duty.
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 the 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 our 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 auch Courts are not illegal and nobody is made to suffer a sentence which is illegal and contrary to law.
13. It was contended that if the revisional powers are exercised by this Court suo motu it will encourage the negligent accused persons, who have not preferred appeals to come up with a request for setting aside the conviction and sentence which they for themselves allowed to become (final. It will suffice to say that this Court exercises its revisional powers suo motu in rare and exceptional cases in the context of facts and circumstances of each particular case. The fact that we are inclined to exercise our revisional powers suo motu in this case cannot be treated as a precedent to claim interference in exercise of the revisional powers suo motu in all cases irrespective of the facts and circumstances of a particular case.
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 legalistics. 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 it's own grave diggers'.
15. There have been cases where Courts had time to time exercised such powers by setting aside the conviction and sentence of even the non-appealing accused persons while deciding the appeal preferred by the other accused persons. Such interference was made suo motu in exercise of revisional powers under Section 439(old) of the Code of Criminal Procedure. The learned Counsel for the accused pointed out the following cases:
(i) Karam Dass v. State AIR 19152 Punj 249 : 1952 Cri LJ 1119 and (ii) Passang Lama v. State of Sikkim 1975 Cri LJ 1350 (Sikkim). It is true that in the aforesaid cases, interference in the case of non-appealing accused person was made while deciding the appeal preferred by the other accused persons. As we have already pointed out above, the fact that the present appellant had not signed the memo of appeal, though the same disclosed his name also, escaped our notice. If this would have occurred to us at that time, we would have given appropriate directions in respect of the non-appealing accused also.
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 interests of justice.
17. We, therefore, for the reasons stated in our judgment dated 10-3-76 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 Ratansingh son of Panchamsingh, 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. 69-2/76) preferred by Ratansingh is also dismissed being barred by limitation.