Kerala High Court
Palara Noushad @ Kunhava vs The State Of Kerala on 7 January, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
TUESDAY, THE 7TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946
UNNUMB. CRMA.NO.1/2024 IN CRL.REV.PET NO. 1919 OF 2003(FILING NO.)
Crl.A 80/1999 OF ADDITIONAL DISTRICT COURT (ADHOC), MANJERI
CC 287/1996 OF JUDICIAL MAGISTRATE OF FIRST CLASS,TIRUR
APPLICANT/REVISION PETITIONER:
PALARA NOUSHAD @ KUNJAVA, S/O SAIDALAVI, KOTTARAM, VALANCHERY,
MALAPPURAM DISTRICT-676552.
RESPONDENT/RESPONDENT:
THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM -682031.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to post the above case
for rehearing and modify the order dated 15.11.2017 to the effect that the
petitioner shall undergo the sentence 'concurrently' instead of
'consecutively' in the above order in the interest of justice.
This Application coming on for orders on 07/01/2025 upon perusing
the application and the affidavit filed in support thereof, and upon
hearing the arguments of SRI U.K.DEVIDAS & SMT.S.K.SREELAKSHMY, Advocates
for the applicant and the PUBLIC PROSECUTOR for the Respondent and this
court's judgment dated 15/11/2017, the court passed the following:
(P.T.O)
G. GIRISH, J
-------------------------------
Unnumbered Crl.M.A 1 of 2024
in Crl.R.P No.1919 of 2003
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Dated this the 7th day of January, 2025
ORDER
The 2nd accused in CC No.287/1996 on the files of the Judicial First
Class Magistrate Court, Tirur, has filed this petition under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 ('the BNSS' for short), for
rehearing the appeal and the revision petition, which upheld his conviction
and sentence in respect of offence under Sections 457, 461 and 380 IPC.
2. The Registry has noted a defect doubting the maintainability of
the present petition under Section 528 of the BNSS, in view of the bar
contained under Section 403 of the BNSS.
3. The petitioner herein had undergone trial before the learned
Magistrate in connection with the Crime registered against him and another
person for the commission of offence under Sections 457, 380 and 461 IPC
read with Section 34 IPC. After a full trial, the learned Magistrate found the
petitioner and the other accused guilty of offences charged against them
and convicted them accordingly. The petitioner was awarded Rigorous
Imprisonment for two years under Section 457 IPC, Rigorous Imprisonment
for one year under Section 461 IPC and Rigorous Imprisonment for three
years under Section 380 IPC, with a direction that the sentences shall run
consecutively. The matter was taken up in appeal before the Sessions
Court, Manjeri, in Criminal Appeal No.80/1999. The Appellate Court, as per
the judgment dated 19.02.2003, modified the sentence awarded under
Section 461 IPC as fine of Rs.1000/- with a default clause of Simple
Imprisonment for six months. As against the remaining part of the
sentence awarded by the Trial Court for the commission of offence under
Sections 457 IPC and 380 IPC, the Appellate Court observed that it required
no modification at all.
4. The petitioner took up the matter in revision before this Court
by filing Crl.R.P No.1919 of 2003. As per order dated 15.11.2017, a learned
Single Judge of this Court found that there was absolutely no ground for
interfering with the findings of the learned Sessions Judge in the judgment
rendered in appeal. It has been observed in paragraph No.2 of the
judgment of this Court in the aforesaid revision that the factual aspects
were well considered and evaluated by the courts below while concurrently
coming to the findings on facts against the appellant as regards the offence
under Sections 461, 457 and 380 IPC. It is specifically observed in the said
order that as regards the sentence also, there is no illegality or impropriety.
The petitioner took up the matter before the Apex Court by filing Special
Leave Petition No.10584/2019. The said petition was dismissed by the Apex
Court on 29.04.2019.
5. In the present petition, the petitioner wants this Court to rehear
the above appeal/revision petition. It is the contention of the petitioner
that the Appellate Court and this Court had not considered the impact of the
direction of the Trial Court to have the sentences run consecutively instead
of directing it to run concurrently. According to the petitioner, he was under
the impression that the sentences shall run concurrently. Thus, it is stated
that, in the present petition filed under Section 528 of the BNSS, the
direction of the Trial Court that the sentences awarded under Section 457
IPC and 380 IPC to run consecutively, has to be modified as 'to run
concurrently'. According to the petitioner, neither the Sessions Court in the
appeal, nor this Court in the revision, had bestowed attention on the above
aspect relating to the nature of the sentence imposed upon the petitioner
for the commission of offence under Sections 457 and 380 IPC.
6. The powers under Section 528 of the BNSS could be exercised
only under three circumstances. The first one is to prevent the abuse of
process of court. The second one is to give effect to the orders under the
BNSS. The third circumstance under which the powers under Section 528 of
the BNSS could be exercised is to secure the ends of justice. On going
through the judgments rendered by the Appellate Court and this Court in
Crl.Appeal No.80/1999 and Criminal Revision Petition No.1919/2003, it is not
possible to conclude that the direction of Trial Court to run the sentences
consecutively, had not been taken note of. As already stated above, it has
been specifically observed by this Court in paragraph No.2 of the order
dated 15.11.2017 in Crl.RP No.1919/2003 that, as regards the sentence
also, the Court was not able to find any illegality or impropriety.
In the above circumstances, there is absolutely no scope for invoking
the power under Section 528 of the BNSS in entertaining a petition to
rehear the appeal and revision as requested by the petitioner. The Registry
is perfectly right in declining to number the present petition. Accordingly,
the defect noted by the Registry is found sustainable and the petition is
rejected.
Sd/-
G. GIRISH
JUDGE
IAP
07-01-2025 /True Copy/ Assistant Registrar
