Ashraf v. Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY, THE 22ND DAY OF FEBRUARY 2017/3RD PHALGUNA, 1938** **Crl.MC.No. 4434 of 2013 () ---------------------------** ## **AGAINST THE ORDER/JUDGMENT IN Crl.Rev.Pet 1483/2002 of HIGH COURT OF KERALA DATED 24-06-2010** **PETITIONER(S):** **-------------** **ASHRAF, S/O.SAIDALAVI** **THEKKECHALIL HOUSE, ELAYOOR, KAVANOOR, MALAPPURAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENT(S)/RESPONDENTS:** ## **--------------------------** **1. UNION OF INDIA REPRESENTED BY THE PRINCIPAL SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI, PIN - 110 001.** **2. THE SUB INSPECTOR OF POLICE** - **WANDOOR POLICE STATION, MALAPPURAM DISTRICT, PIN-679328** **R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2 BY ADV.UDAYAKUMAR.K.B,PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31.1.2017, THE COURT ON 22.2.2017 PASSED THE FOLLOWING:** **Crl.MC.No. 4434 of 2013 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNX.A - TRUE COPY OF THE ORDER DATED 24-6-2010 IN CRL.RP NO.1483/2002 OF THIS HON'BLE COURT.** **ANNX.B - TRUE COPIES OF THE DISCHARGE SUMMARY AND OTHER TREATMENT RECORDS OF THE PETITIONER ISSUED FROM THE MALABAR INSTITUTE OF MEDICAL SCIENCE** **ANNX.C - TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DT.25-9-2013** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** **TRUE COPY** **SKS** **P.A TO JUDGE** ## **A.M.BABU, J.** -----------------------------CRL.M.C.NO. 4434 OF 2013 -----------------------------Dated 22[nd] February, 2017 ## **ORDER** Can the High Court in exercise of its inherent powers saved under Sec.482 of the Cr.P.C direct an appropriate government to dispose of an application submitted to it under Sec.432 or 433 of the Cr.P.C within a specified time? This is the question to be decided to decide the Crl.M.C on hand. 2. Facts are simple. The petitioner was convicted for having committed offences under Secs 279, 337 and 338 of the IPC. He was sentenced by the trial court to a fine of Rs.1,000/- under Sec.279 IPC and simple imprisonment for six months under Sec.338 IPC. No separate sentence was imposed under Sec.337 IPC. Appeal of the petitioner was dismissed by the Court of Session. The revision before this Court was partly allowed. The term of jail sentence imposed under Sec.338 IPC was reduced to one month. The sentence of fine imposed under Sec.279 IPC was retained. 2 CRL.M.C.NO. 4434 OF 2013 3. The first respondent is the Union of India. The petitioner submitted an application before the first respondent. Annex-C is a copy of the said application. The application is shown to be filed under Sec.432/433 of the Cr.P.C. The petitioner requests in annex-C to remit/commute his sentence of imprisonment into fine. The petitioner wants this Court to grant the following reliefs: One, to issue a direction to the first respondent to consider annex-C application forthwith or without further delay. Two, to pass an order not to execute the order of sentence till the disposal of annex-C application by the first respondent. 4. Heard the learned counsel for the petitioner, the learned Assistant Solicitor General of India and the learned Public Prosecutor. 5. The petitioner highlights his health condition. He contends himself to be suffering from a chronic heart disease. He states that he lives on pacemaker. He produced copies of medical documents. But it is not necessary to go into his health condition in this proceedings. 3 CRL.M.C.NO. 4434 OF 2013 6. Sec.432 Cr.P.C deals with the powers of the appropriate government to suspend or remit sentences. Sub-sec(5) provides that the appropriate government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with. The proviso to sub-sec(5) is important here. It provides that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of 18 years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail. The proviso further provides that a petition, if made by the person sentenced, shall be presented through the officer-incharge of the jail. If the petition is made by any other person, it shall contain a declaration that the person sentenced is in jail. The petitioner is an adult male not in jail. Therefore he cannot even apply for any relief under Sec.432 of the Cr.P.C. The appropriate government cannot 4 CRL.M.C.NO. 4434 OF 2013 consider his request under Sec.432 of the Cr.P.C. 7. The power of the appropriate government to commute a sentence is dealt with in Sec.433 Cr.P.C. It provides, inter alia, that the appropriate government may commute a sentence of simple imprisonment, for fine. There is no insistence in Sec.433 that the convicted person should be in jail. Therefore the request of the petitioner to commute his sentence of simple imprisonment into fine may be maintainable in law. But that by itself does not mean that this Court can in exercise of its inherent powers direct the appropriate government to consider and dispose of annex-C application of the petitioner forthwith or within a specified time. 8. Sec.482 provides that nothing in the Cr.P.C shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Cr.P.C, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The inherent powers of this Court can be exercised 5 CRL.M.C.NO. 4434 OF 2013 only in relation to judicial matters. It cannot be exercised in relation to the executive power of the government like the power under Sec.432 or 433 of the Cr.P.C. In this connection a decision of the division bench of the Madras High Court has been cited on the side of the first respondent. The decision is **K.Rajamanickam vs. State of Tamil Nadu (2015 (3) Madras Weekly Notes (crl) 379)** . I am in respectful agreement with their Lordships of the Madras High Court who rendered the judgment. This Court cannot under Sec.482 Cr.P.C direct the appropriate government to dispose of annex-C application of the petitioner forthwith or without further delay or within a specified time. 9. There is no merit in the Crl.M.C. The same is only to be dismissed. Dismissed. sks/20.2.2017 **A.M.BABU Judge** 6 CRL.M.C.NO. 4434 OF 2013 7 CRL.M.C.NO. 4434 OF 2013