Decided on March 15,2016

G. Balachandran Appellant
C.S. Ramachandran Nair And Ors. Respondents


- (1.) Leave granted.
(2.) Heard learned senior counsel/learned counsel for the parties.
(3.) This appeal is directed against the judgment and order dated 26.11.2010 passed by the Division Bench of the High Court of Kerala at Ernakulam in Writ Appeal Nos. 1582 of 2010, 1905 and 1733 of 2010 filed by the convictees and the State, challenging the correctness of G.O.(Rt.) No.04/2205/Home dated 01.01.2005, passed by the State Government-respondent no. 4, granting remission of sentence to respondent nos. 2 and 3, in exercise of its power under Section 432 of the Code of Criminal Procedure (for short 'CrPC'), without following due procedure on the representation filed by them and surrendering to the jurisdictional jail for undergoing the punishment of sentence imposed upon them for the offence committed by them and convicted for the same. Aggrieved of the said judgment and order, instant appeal is filed by the complainant-appellant urging that contesting respondent nos. 1 to 3, while serving as Circle Inspector of Police, Head Constable and Sub-Inspector of Police respectively in a police station summoned the appellant herein along with his wife to the police station, on the basis of a complaint filed by some of their relatives and manhandled them, for which cases were registered under Section 323, 324, 341 and 379 read with Section 34 of the Indian Penal Code, which ultimately led to conviction of respondent nos. 1 to 3. However, respondents, instead of surrendering to serve the sentence imposed upon them for the proved offences, filed separate representations before the State Government seeking remission of their sentence under Section 432 of CrPC. The State of Kerala-respondent no. 4 issued GO (Rt.) No.04/2005/Home dated 01.01.2005 granting remission of the sentence imposed on respondent nos. 2 and 3 under Section 432 of CrPC, which was challenged by the appellant by filing Writ Petition (C) No.9401 of 2007. Respondent no. 1 has also filed Writ Petition (C) No.13760/2007 seeking a direction for not executing the sentence imposed on him pending his application for remission before the State Government, which was dismissed by the High Court holding that no such direction could be issued by it as in view of the proviso to Section 432(5) of CrPC the application of respondent no. 1 could not have been entertained unless the applicant was in jail and consequently, the State Government has dismissed the application seeking remission, filed by respondent no. 1. Respondent no. 1 filed another application before the State Government under Section 433 of CrPC for commutation of his sentence and also filed W.P.(C) No.27098 of 2007 before the High Court for issuing a direction to the State Government to consider his application for commutation of sentence. Learned Single Judge of the High Court has allowed W.P.(C) No.9401 of 2007 setting aside GO (Rt.) No.04/2005/Home dated 01.01.2005, Annexure P/1, holding that the same is unsustainable either under Article 161 of the Constitution or under Section 432 of CrPC as it was passed at the level of the Governor without the aid and advice of the Council of Ministers. Consequently, W.P.(C) No.27098 of 2007 was also dismissed. Thereagainst, Writ Appeal Nos. 1582, 1905 and 1733 of 2010 have been filed before the Division Bench of the High Court. Out of the three writ appeals, two were filed by convictees and one by the State. The Division Bench of the High Court has allowed Writ Appeal Nos.1582 and 1905 of 2010 by setting aside the judgment of the learned Single Judge and Writ Appeal No. 1733 of 2010 was disposed of with direction to the Government to pass orders on the representation, Annexure A-2, filed under Section 432 of CrPC.;

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