IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 Crl.MC.No. 2646 of 2009() ------------------------------------ CC.429/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, KOCHI .................... PETITIONERS/ACCUSED NOS. 1 & 2 ---------------------------------------------------- 1. THOMAS, S/O.KURIAKOSE, KOCHUNADAYIL HOUSE, KURICHY P.O., KOTTAYAM. 2. SURENDRAN, S/O.DAMODHARAN, PARUTHIKKADUCHIRA VEEDU, NEELEMPEROOR, KOTTAYAM. BY ADV. MR.M.P.MADHAVANKUTTY RESPONDENT/COMPLAINANT ------------------------------------------- STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2646 of 2009 -------------------------- ORDER Petitioners are accused 1 and 2 in C.C.No. 429/1996 on the file of Judicial First Class Magistrate's Court-I, Kochi. They were convicted and sentenced for the offence under Section 55(a) of Abakri Act. Appeal and revision were dismissed. This petition is filed under Section 482 of Code of Criminal Procedure for a direction to the Magistrate to keep the warrant proceedings, initiated for execution of the sentence, in abeyance till a decision is taken on Annexure-I petition filed by the petitioners before Government under Section 432 of Code of Criminal Procedure for remission of the sentence. 2. Learned counsel appearing for the petitioners was heard. 3. Argument of the learned counsel is that Annexure-I petition filed for remission was being CRMC 2646/09 2 considered by the Government as is clear from Annexure-II communication received by the petitioners directing them to produce the records, which were produced under Annexure-III communication and in such circumstances, in the interest of justice, till a decision is taken by the Government, the warrant proceedings is to be kept in abeyance. Reliance was placed on the decisions of the Apex Court in Dineshchandra Jamnadas Gandhi v. State of Gujarat (AIR 1989 SC 1011), in Union Territory of Chandigarh v. Charanjit Kaur (1996(1) KLT SN Page 28) and in Suresh v. State of Kerala (2006(3) KLT 231) and it was argued that to secure justice, power under Section 482 of Code of Criminal Procedure is to be exercised, as otherwise, petitioner will be arrested and sent to prison. 4. The question is squarely covered by the Division Bench decision of this Court in Moideen Koya v. Secretary to Government (2008 (4) KLT 257). CRMC 2646/09 3 Though, in that case, it was a petition for commutation of sentence under Section 433(d) of Code of Criminal Procedure and Exhibit P1 petition is filed under Section 432, on principle, there is no difference. The Division Bench held that when it is the discretion of the Government whether to grant commutation or not, it is not for this Court to keep the sentence in abeyance till the Government take a decision. That exactly is the case herein. In such circumstances, petition is dismissed. 14th August, 2009 (M.Sasidharan Nambiar, Judge) tkv