IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2873 of 2009()
1. MUHAMMED BASHEER, AGED 61 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. DETECTIVE INSPECTOR, CB CID,
3. STATE OF KERALA REP. BY PUBLIC
For Petitioner :SRI.C.KHALID
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :16/09/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.No.2873 OF 2009
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Dated this the 16th day of September,2009
ORDER
Petitioner, the first accused in S.C.42/1996 of
Additional Sessions Court II, Ernakulam was convicted
and sentenced for the offences under sections 323 and
324 of Indian Penal Code. Under Annexure A1 judgment
in Crl.A.140/1998, the conviction was confirmed. This
petition is filed under section 482 of the Code of
Criminal Procedure, for a direction to the first
respondent to consider and dispose Annexure 2
application filed by the petitioner under section 433
of Code of Criminal Procedure expeditiously and also
for a direction to the Sessions Court not to execute
the sentence till the disposal of Annexure 2 petition.
2. Learned counsel appearing for the petitioner
and the learned Public Prosecutor were heard.
3. The learned counsel submitted that Annexure 2
petition was filed before the Government, under section
433 of Code of Criminal Procedure and till a decision
is taken on Annexure 2 application, petitioner may not
be arrested and sent to prison. Learned counsel
Crl.M.C.2873/2009 2
submitted that the Division Bench decision of this Court
in Moideenkoya v. Secretary to Government (2008(4) KLT 257
is not applicable to the facts of the case as what was
considered in that case is only the powers under Article
226 of the Constitution of India and this petition is filed
under section 482 of Code of Criminal Procedure and this
court can grant an order not to execute the sentence till
the disposal of the application filed under section 433 of
Code of Criminal Procedure to prevent abuse of process of
the court and to secure justice.
4. Learned Public Prosecutor submitted that Annexure 2
application is under consideration of the Government and
appropriate order will be passed in accordance with law
after getting a report from the Superintendent of Police,
Ernakulam. Learned Public Prosecutor also submitted that
petitioner is not entitled to get an order, restraining the
execution of the sentence, till a decision is taken on
Annexure 2 application.
5. The question whether petitioner is to be granted
the benefit under section 433 of Code of Criminal
Procedure, is within the prerogative of the Government.
Petitioner is not entitled to contend that he is entitled
to get the benefit under section 433 of the Code of
Criminal Procedure. This court cannot direct the
Crl.M.C.2873/2009 3
Government to grant commutation under section 433 of the
Code of Criminal Procedure. Though learned counsel
appearing for the petitioner submitted that the Division
Bench decision is not applicable, I cannot agree with the
submission. When the conviction and sentence is
subsisting, as it is finally decided, the fact that a
petition is pending under section 433 of the Code of
Criminal Procedure is not a ground to stay the execution of
the sentence, though what is sought for is only to refrain
from repeating the warrant of arrest. Under that guise,
prayer is not to execute the sentence. Petitioner is not
entitled to such an order. In such circumstance, petition
is disposed directing the first respondent, to consider and
dispose of Annexure 2 application as expeditiously as
possible.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006