RAMACHANDRAN NAIR C S Vs. G BALACHANDRAN

JUDGEMENT

(1.) Of the three writ appeals, two are filed by convicts and one by the State challenging the judgment of the learned Single Judge declaring Ext.P2 produced in Writ Appeal No.1582/2010, which is an order of remission issued by the Government under Section 432 of the Code of Criminal Procedure, as invalid. We have heard Senior counsel Sri.S.Gopakumaran Nair appearing for the appellants in the two Writ Appeals, Government Pleader for the appellant in the Writ Appeal filed by the State and Adv. Sri.K.Ravindran appearing for the first respondent in W.A. Nos.1582 and 1905 of 2010.

(2.) The facts leading to the controversy are the following. The appellants in W.A. No.1582/2010 while serving as C.I. of Police and Police Constables respectively in a Police Station summoned the first respondent along with his wife to the Police Station on the basis of a complaint filed by some of their relatives and manhandled them. Cases were registered under Section 323 of the I.P.C. which led to conviction of all the appellants for three months' rigorous imprisonment and fine of Rs. 1,000/- each. The sentence got confirmed in appeal filed before this court and SLPs filed before the Supreme Court were rejected for the reason that appellants did not surrender to serve sentence before moving the Supreme Court. The incident that led to the prosecution and sentence of the appellants happened in 1988 and in the course of time, the first appellant got several promotions, became Superintendent of Police and retired. The second appellant became Head Constable and the third got promotion as Sub Inspector of Police and all of them are now retired from service. On confirmation of conviction and sentence on the appellants, they filed application before the Government under Section 432 of the Code of Criminal Procedure and the Government allowed the remission completely in the case of appellants 2 and 3, while the application of the first appellant is still pending with the Government. Another development of the case is that the victim of appellants' criminal act namely, the wife of the first respondent, divorced him and supported the case of the appellants for remission of sentence. Ext.P2 order granting complete remission to appellants 2 and 3 by the Government issued on 1.1.2005 was challenged by the first respondent before this court by filing writ petition under Article 226 of the Constitution and the learned Single Judge allowed the Writ Petition by vacating the order of the Government holding that procedural impropriety in disposing of the matter has invalidated the order of the Government. It is against this judgment both the State as well as the convicts have filed separate Writ Appeals.

(3.) The learned Single Judge held that the order issued is one under Section 432 of Cr.P.C. and also in exercise of powers conferred on the Governor of the State under Article 161 of the Constitution of India. By holding so, he held that there is procedural violation of Section 432 of Cr.P.C. because appellants-convicts did not surrender to serve the sentence before making application for remission. The second defect noted by the learned Single Judge is that the Government did not take the opinion of the Presiding Judge of the Court which convicted the appellants or confirmed the sentence before deciding the matter in terms of sub-section (2) of Section 432. The third defect found by the learned Single Judge is that the file was forwarded to the Governor for decision under Article 161 only by the Chief Minister and not by the Council of Ministers in terms of Article 163 of the Constitution.