IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 Crl.MC.No. 2873 of 2009(F) -------------------------------------- [CMP.NO.2498/2009 OF II ADDL.SESSIONS COURT, ERNAKULAM] .................... PETITIONER: ------------------- MUHAMMED BASHEER, AGED 61 YEARS, S/O.NAHUKANNU, RESIDING AT SAJEENA MANZIL, MANNUM DESOM, NORTH PARAVOOR, VADAKKEKKARA POLICE STATION. BY ADV. MR.C.KHALID. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DETECTIVE INSPECTOR, CB CID, ALUVA. 3. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN-31. R1 TO R3 BY PUBLIC PROSECUTOR MR. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.2873 OF 2009 =========================== 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. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006