IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 Crl.MC.No. 983 of 2011() ------------------------ AGAINST THE ORDER DATED 26/02/2011 IN CRMP 687/2011 IN CRA.47/2011 of SESSIONS COURT, WAYANAD,KALPETTA CC.285/2008 of CHIEF JUDICIAL MAGISTRATE COURT, KALPETTA .................... PETITIONER(S): PETITIONER/APPELLANT: ---------------------------------------------------------------- AJI,S/O.MATHEW, AGED 28 YEARS, VADAKKEYIL HOUSE, KAMBALAKKADU, KANIYAMBATTA AMSOM. BY ADV. SMT.CELINE JOSEPH RESPONDENT(S): RESPONDENT/RESPONDENT: ------------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE ADDL.SUB INSPECTOR OF POLICE, KALPETTA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KEALA,ERNAKULAM - 682 031. BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.983 of 2011 -------------------------------------- Dated this the 28th day of March, 2011. ORDER Petitioner is accused in C.C.No.285 of 2008 of the court of learned Chief Judicial Magistrate, Kalpetta who stands convicted for offences punishable under Sections 279 and 304A of the Indian Penal Code (for short, “the IPC”) for alleged rash and negligent driving along the public road and by such driving causing death of a pedestrian. Learned Chief Judicial Magistrate sentenced petitioner to undergo simple imprisonment for three months under Section 379 of the IPC and simple imprisonment for one year under Section 304A of the IPC. Petitioner was disqualified from driving all types of motor vehicles for a period of two years as per Section 20 of the Motor Vehicles Act (for short, “the Act”) and he was asked to surrender his driving licence within 30 days to make necessary endorsement in it by the appropriate authority under Section 24 of the Act. Petitioner challenged conviction and sentence before the learned Sessions Judge, Wayanad at Kalpetta in Crl.Appeal.No.47 of 2011 and moved Crl.M.A. No.687 of 2011 for suspension of sentence. Learned Sessions Judge suspended the sentence but, refused to suspend disqualification ordered by the learned Chief Judicial Magistrate. Refusal to stay operation of the said disqualification is under challenge. Learned counsel submitted that if petitioner is disqualified from driving the vehicle that would affect his livelihood. Learned Public Prosecutor submits that since disqualification does not form part of the Crl.MC No.983/2011 2 sentence, an application under Section 389(1) of the Code of Criminal Procedure (for short, “the Code”) is not sufficient to stay the direction regarding disqualification if at all it is assumed that the appellate court has power to do so. 2. In this proceeding I am not going into the jurisdiction of the appellate court to interfere with disqualification in view of the order I propose to pass. But disqualification is not part of the sentence. So that it could be stayed under Section 389(1) of the Code. A separate application was required to be moved to stay operation of the order of disqualification. It is seen that due to alleged rash and negligent driving of petitioner, a person who sustained injury succumbed to it. I am not going into the details of the case since learned Sessions Judge has to deal with that matter on merit. Having regard to the finding of learned Chief Judicial Magistrate, I do not think it necessary to interfere with the discretion exercised by learned Sessions Judge not to stay operation of the order of disqualification of driving licence. 3. At the same time grievance of the petitioner has to be redressed. Appeal filed by the petitioner is already admitted and it follows that appellate court has to decide whether conviction, sentence and disqualification of the petitioner are justified on the facts and evidence. If disposal of the appeal is delayed necessarily that would cause difficulties to the petitioner. Having regard to that aspect the proper course is to direct the learned Sessions Judge to dispose of the Crl.Appeal as early as possible bearing in mind that on account of disqualification petitioner is not able to drive any type of motor vehicle. Crl.MC No.983/2011 3 Resultantly this petition is disposed of directing the learned Sessions Judge, Wayanad at Kalpetta or any other Additional Sessions Judge to whom Crl.Appeal No.47 of 2011 has been made over to dispose of the said appeal as early as possible bearing in mind that petitioner has been disqualified from driving any type of motor vehicle for a period of two years and that disqualification has not been suspended by the learned Sessions Judge. THOMAS P.JOSEPH, Judge. cks