Kerala High Court
Shaji @ Shaiju vs State Of Kerala on 11 September, 2025
2025:KER:67733
CRL.A NO. 12 OF 2015 &
CRL.A NO. 980 OF 2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 11TH DAY OF SEPTEMBER 2025 / 20TH BHADRA, 1947
CRL.A NO. 12 OF 2015
AGAINST THE JUDGMENT DATED 22.12.2014 IN SC NO.54 OF
2013 OF SPECIAL COURT FOR THE TRIAL OF OFFENCES UNDER THE
SC/ST (PREVENTION OF ATROCITIES) ACT, MANANTHAVADIY
APPELLANT/ACCUSED :
SHAJI @ SHAIJU
AGED 28 YEARS
S/O KURIAKOSE,KOLATHU
VEEDU,VIRINILAMKUNNU,THRISSLERY,MANANTHAVADY,
WYNAD DISTRICT.
BY ADV SRI.V.SHYAM
RESPONDENT/COMPLAINANT:
STATE OF KERALA
(REPRESENTED BY THE DEPUTY SUPERINTENDENT OF
POLICE,SPECIAL MOBILE
SQUAD,WYNAD,MANANTHAVADY,PANAMARAM POLICE
STATION,CRIME NO.244/2011)REPRESENTED BY THE STATE
PROSECUTOR.
OTHER PRESENT:
SRI. VIPIN NARAYAN (SR.PP)
SRI.S. RAJEEV - AMICUS CURIAE
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
07.01.2015 AND HAVING BEEN FINALLY HEARD ON 16.07.2025
ALONG WITH CRL.A.980/2025, THE COURT ON 11.09.2025 DELIVERED
THE FOLLOWING:
2025:KER:67733
CRL.A NO. 12 OF 2015 &
CRL.A NO. 980 OF 2025 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 11TH DAY OF SEPTEMBER 2025 / 20TH BHADRA, 1947
CRL.A NO. 980 OF 2025
AGAINST THE ORDER/JUDGMENT DATED 31.07.2024 IN SC NO.390 OF
2021 OF SPECIAL JUDGE NDPS ACT CASES/ADDITIONAL SESSIONS
JUDGE- II,KALPETTA,WAYANAD.
APPELLANT/S/ACCUSED:
BINEESH
AGED 42 YEARS
S/O. BHASKARAN, RESIDING AT KOLKATTIL HOUSE,
PADICHIRA.P.O, PADICHIRA, WAYANAD DISTRICT., PIN -
673579
BY ADV SRI.V.A.AJIVAS
RESPONDENTS/STATE AND COMPLAINANT:
STATE OF KERALA
REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM., PIN - 682031
SRI. VIPIN NARAYAN (SR.PP)
SRI.S. RAJEEV - AMICUS CURIAE
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
11.09.2025,07.01.2015 AND HAVING BEEN FINALLY HEARD ON
16.07.2025 ALONG WITH CRL.A.12/2015, THE COURT ON 11.09.2025
DELIVERED THE FOLLOWING:
2025:KER:67733
CRL.A NO. 12 OF 2015 &
CRL.A NO. 980 OF 2025 3
'C.R'
JUDGMENT
[CRL.A Nos.12/2015, 980/2025]
Criminal Appeal No. 12/2015 arises from S.C. No. 54/2013 on the
file of the Special Court for the trial of offences under the SC/ST
(Prevention of Atrocities) Act, Mananthavady, while Criminal Appeal
No. 980/2025 arises from S.C. No. 390/2021 on the file of the Special
Judge for NDPS Act Cases/Additional Sessions Judge - II, Kalpetta,
Wayanad. On the merits, these appeals are not connected. However,
they are disposed of by common judgment as the appellants have
requested that they be permitted to withdraw the appeals. Based on
this submission, this Court is called upon to determine whether these
appeals have to be heard on the merits or whether this Court can
permit the appeals to be withdrawn. It is not necessary to examine
the facts of the individual cases.
2. Sri. Shyam V., the learned counsel representing the appellant
in Criminal Appeal No. 12/2015, and Sri. Ajivass V.A., the learned
counsel representing the appellant in Criminal Appeal No. 980/2025,
submitted that the appellants have served their sentence, and the
appellant in Criminal Appeal No. 12/2015 has paid the entire fine
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CRL.A NO. 12 OF 2015 &
amount, and the appellant in Criminal Appeal No. 980/2025 has
served the default sentence (on failure to pay the fine) as well. It is
further submitted that the appellants do not wish to prosecute the
appeals to get over the possible stigma associated with a conviction,
and thus, they may be permitted to withdraw the appeals.
3. Sri. Vipin Narayan, the learned Public Prosecutor, points out
that there is no provision in the Code of Criminal Procedure, 1973
(hereinafter referred to as 'the Cr.P.C.') or the Bharatiya Nagarik
Suraksha Sanhita, 2023 (hereinafter referred to as 'the BNSS')
permitting withdrawal of an appeal by the appellant, except
withdrawal by the Public Prosecutor under Section 321 Cr.P.C
corresponding to Section 360 of the BNSS. He submits that there are
several decisions of the Supreme Court which categorically state that
once a criminal appeal is admitted, such an appeal has to be disposed
of on its merits, after calling for the records. He refers to the decision
of this Court in Samul Philipose v. Koshy Thomas, 2009 (4)
KLT 360, and the decision of the Madhya Pradesh High Court in
State of M.P. v. Mooratsingh, 1975 KHC 1082. However, he
argues that the High Court may, in fit cases, permit withdrawal of an
appeal under its inherent powers envisaged under Section 482 Cr.P.C
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CRL.A NO. 12 OF 2015 &
corresponding to section 528 of the BNSS to secure the ends of
justice. He pointed out that since inherent jurisdiction under Section
482 Cr.P.C corresponding to section 528 of the BNSS can be exercised
only by the High Court, such withdrawal may not be permissible in
the case of an appeal pending before the Sessions Court. In essence, it
is his submission that the inherent powers of the High Court under
Section 482 Cr.P.C corresponding to Section 528 of the BNSS are
independent and not circumscribed by Section 386 Cr.P.C
corresponding to Section 427 of the BNSS. He pointed out that even
after a sentence is served and fines are paid, an appeal may be
pursued to remove the stigma of conviction or for other reliefs, and
under Section 394 of the Cr.P.C. corresponding Section 435 of the
BNSS, near relatives may decide to prosecute the appeal or accept the
verdict after the death of the accused (in cases involving a sentence of
fine).
4. Sri. S. Rajeev, who was appointed as amicus curiae to assist
this Court, submitted that under Chapter XXIX of the Cr.P.C.
corresponding to Chapter XXXI of the BNSS, provisions exist for the
summary dismissal of appeals (S.384 of the Cr.P.C./S.425 of the
BNSS). It is pointed out that the procedure for hearing appeals
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CRL.A NO. 12 OF 2015 &
(S.385 Cr.P.C./426 of the BNSS) and the powers of the appellate court
(S.386 Cr.P.C. / S.427 BNSS) do not expressly provide for the
withdrawal of an appeal. It is submitted that precedents indicate that
once an appeal is admitted and not summarily dismissed, the appeal
cannot be dismissed as infructuous or for non-prosecution, and the
appellate court is bound to decide the appeal on its merits. He cites
Balan v. State of Kerala; 1981 KLT 652, where it was held that
the Cr.P.C. does not permit dismissal of appeals as infructuous. He
pointed out that in Bani Singh v. State of U.P., 1996 KHC 333,
the Supreme Court held that appeals cannot be dismissed for non-
prosecution simpliciter; and in Samul Philipose (supra) and
Muhammed Alias Kunhalan v. Sub-Inspector of Police,
2022 (6) KLT 308, it was reiterated that once an appeal is filed,
appeals must follow the procedure under Sections 384 to 386 of the
Cr.P.C (corresponding to Sections 425 to 427 of the BNSS). He
referred to the judgment of the Rajasthan High Court in Chhittar v.
The State, 1957 CrLJ 155, which held that once an appeal is
admitted, it cannot be withdrawn. It is pointed out that none of the
aforesaid judgments have considered the scope of the inherent
jurisdiction of this Court, and in Keralakumaran v. State of
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CRL.A NO. 12 OF 2015 &
Kerala, 1995 KHC 144, this Court recognised that the High Court
may invoke inherent powers under S.482 Cr.P.C (corresponding to
S.528 of the BNSS) to dismiss or restore an appeal in the interest of
justice. Thus, according to him, while the statutory provisions do not
contemplate withdrawal, the inherent powers of the High Court
remain available to permit such withdrawal.
5. Having heard the learned counsel appearing for the
appellants, the learned public prosecutor, and the learned amicus
curiae, I am of the view that in appropriate cases this Court can
permit the withdrawal of criminal appeals filed under the provisions
of Chapter XXIX of the Cr.P.C corresponding to Chapter XXXI of the
Sanhita. The reasons which compel me to hold so are detailed
hereunder.
6. As already noticed, the provisions relating to an appeal
under the provisions of the Cr.P.C are contained in Chapter XXIX of
the Code, while the provisions relating to appeals under the
provisions of the BNSS are contained in Chapter XXXI of the BNSS.
The provisions are in pari materia.
7. Balan (supra) was a case where this court had suo motu
exercised its revisional jurisdiction after finding that the Additional
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CRL.A NO. 12 OF 2015 &
Sessions Court had irregularly and wrongly dismissed a criminal
appeal as infructuous, on the finding that the appellant/accused in
that case had already served his sentence. This Court took the view
that an appeal under the Cr.P.C could not be dismissed as infructuous
on the ground that the appellant had already served the sentence and
held that even where the sentence is served, the appellant/accused is
entitled to seek that the stigma attached to a conviction could be
wiped out by disposal of the appeal on merits. This position cannot
be disputed. The Supreme Court in Gurjant Singh v. State of
Punjab, 2021 KHC 7043 held thus:-
"5. Learned counsel for the appellant has contended, and
rightly so, that an appeal against conviction could not have
been treated as infructuous merely for the reason that the
convicted appellant had served out the sentence awarded
by the Trial Court. Learned counsel has further pointed out
that the sentence awarded to the appellant was only of five
months' imprisonment with fine of Rs.3,000/-; and even at
the initial stage of appeal, it was specifically pointed out
before the Court that the appellant had undergone the
sentence of imprisonment and had deposited the fine
imposed but, he was nevertheless seeking to assail his
conviction. The relevant facts and submissions were
distinctly noted by the High Court in the order dated
10.05.2017 that reads as under:-
"Learned counsel for the appellant submits that though the
appellant has already undergone his entire sentence of 5
months and has also paid the fine imposed upon him, upon
his conviction for the commission of an offence punishable
under Section 18 of the NDPS Act, he would still like to
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CRL.A NO. 12 OF 2015 &
pursue the appeal on merits.
On his request, adjourned to 31.05.2017.
The records of the learned trial Court be summoned in the
meanwhile."
6. Though learned counsel for the respondent has
attempted to support the conviction and sentence of the
appellant but could not dispute the position that merely for
execution of the sentence, an appeal against conviction
cannot be treated as infructuous. Moreover, the matter
before the High Court was an appeal against conviction.
Therein, if nobody was present for the appellant for any
reason, the High Court could have taken appropriate steps
for representation on behalf of the appellant but, in any
case, the appeal could not have been dismissed as
infructuous. So far as the contention on merits are
concerned, in our view, the same ought to be urged before
the High Court."
The High Court of Madhya Pradesh in Moorat Singh (supra) has
taken the view that an appeal against acquittal cannot be withdrawn
(by the prosecution), and once the appeal is admitted and not
summarily dismissed, there is no specific provision in the Cr.P.C for
permitting such withdrawal, and the provisions permitting
withdrawal from a prosecution (by the State) do not apply at the
appellate stage. This Court in Samul Philipose (supra) dealt with a
situation where the appellate court had dismissed certain appeals
challenging the conviction and sentence in a prosecution for the
offence punishable under S.138 of the Negotiable Instruments Act, as
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CRL.A NO. 12 OF 2015 &
'not pressed'. This Court took the view that where an appeal is duly
lodged and not summarily dismissed, the appellate court cannot
dismiss the appeal as 'not pressed'. It was held that the Cr.P.C does
not contemplate the dismissal of an appeal as withdrawn or as not
pressed once it is duly lodged, and even where the counsel or party
reports that he is not proceeding with the appeal which is duly lodged,
the appellate court has to follow the procedure prescribed under
Sections 384 or under Section 385 and 386 of the Cr.P.C and dispose
of the appeal accordingly.
8. In Bani Singh (supra), the Supreme Court, while resolving
the apparent conflict between the decisions in Shyam Deo Pandey
v. State of Bihar, (1971) 1 SCC 855 and Ram Naresh Yadav
and Ors v. State of Bihar, AIR 1987 SC 1500, held thus:-
"14. We have carefully considered the view expressed in the
said two decisions of this Court and, we may state that the
view taken in Shyam Deo case appears to be sound except
for a minor clarification which we consider necessary to
mention. The plain language of Section 385 makes it clear
that if the appellate court does not consider the appeal fit
for summary dismissal, it 'must' call for the record and
Section 386 mandates that after the record is received, the
appellate court may dispose of the appeal after hearing the
accused or his counsel. Therefore, the plain language of
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CRL.A NO. 12 OF 2015 &
Sections 385-386 does not contemplate dismissal of the
appeal for non-prosecution simpliciter. On the contrary,
the Code envisages disposal of the appeal on merits after
perusal and scrutiny of the record. The law clearly expects
the appellate court to dispose of the appeal on merits, not
merely by perusing the reasoning of the trial court in the
judgment, but by cross-checking the reasoning with the
evidence on record with a view to satisfying itself that the
reasoning and findings recorded by the trial court are
consistent with the material on record. The law, therefore,
does not envisage the dismissal of the appeal for default or
non-prosecution but only contemplates disposal on merits
after perusal of the record. Therefore, with respect, we find
it difficult to agree with the suggestion in Ram Naresh
Yadav case that if the appellant or his pleader is not
present, the proper course would be to dismiss an appeal
for non-prosecution."
Bani Singh (supra) is a case dealing with dismissal of an appeal for
non-prosecution and the course to be adopted by the court when
there is no appearance by the appellant/accused or his lawyer when
the appeal is taken up for hearing.
9. In Keralakumaran (supra), this Court was considering
the question as to whether an appeal or other criminal proceeding can
be dismissed for default/non-prosecution. The decision was rendered
on 02.03.1995 and before the judgment of the Supreme Court in
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CRL.A NO. 12 OF 2015 &
Bani Singh (supra). Therefore, the decision in Keralakumaran
(supra) to the extent that it holds that a criminal proceeding
(including an appeal) can be dismissed for default/ non-prosecution
may not be good law.
10. In K.S. Panduranga v. State of Karnataka, (2013) 3
SCC 721, it was held:-
"19. From the aforesaid decision in Bani Singh, (1996) 4
SCC 720, the principles that can be culled out are:
19.1. That the High Court cannot dismiss an appeal for
non-prosecution simpliciter without examining the merits;
19.2. That the Court is not bound to adjourn the matter if
both the appellant or his counsel/lawyer are absent;
19.3. That the court may, as a matter of prudence or
indulgence, adjourn the matter but it is not bound to do so;
19.4. That it can dispose of the appeal after perusing the
record and judgment of the trial court;
19.5. That if the accused is in jail and cannot, on his own,
come to court, it would be advisable to adjourn the case
and fix another date to facilitate the appearance of the
appellant-accused if his lawyer is not present, and if the
lawyer is absent and the court deems it appropriate to
appoint a lawyer at the State expense to assist it, nothing
in law would preclude the court from doing so; and
19.6. That if the case is decided on merits in the absence of
the appellant, the higher court can remedy the situation."
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CRL.A NO. 12 OF 2015 &
In Surya Baksh Singh v. State of U.P., 2013 (4) KLT
493(SC), the Supreme Court considered the provisions in Chapter
XXIX of the Cr.P.C. and took the view that except in certain situations
(such as death sentence reference), the legislature has cast no duty on
the appellate court to examine the correctness of a conviction and
sentence unless the jurisdiction of the appellate court has been
specifically invoked. The Supreme Court in Surya Baksh Singh
(supra) also referred to with approval the observations of the
Supreme Court in K.S. Panduranga (supra).
11. From an analysis of the relevant provisions contained in
Chapter XXIX of the Cr.P.C and Chapter XXXI of the BNSS and the
decisions referred to above, it is apparent that there are no provisions
in the Cr.P.C or the BNSS which indicate that there shall be an appeal
against conviction and sentence automatically and without the power
of the appellate court being specifically invoked by the accused.
Similarly, the right of appeal against acquittal under Section 378 of
Cr.P.C and the corresponding Section 419 of the BNSS is also to be
invoked and is not automatic. In other words, unless the power of the
appellate court is invoked, there is no provision which enables the
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CRL.A NO. 12 OF 2015 &
appellate court to examine the correctness and legality of the
conviction and sentence except in a situation where the High Court or
the Court of Session were to invoke revisional powers suo motu or, for
example, in the case of a death sentence which needs to be confirmed
by the High Court under Section 366 Cr.P.C. No provision in
Chapter XXIX of the Cr.P.C or Chapter XXXI of the BNSS permits the
withdrawal of an appeal after it is lodged. A criminal appeal that is
not summarily dismissed under Section 384 of the Cr.P.C/Section 425
of the BNSS can ordinarily be disposed of only on its merits, after
calling for and perusing the records (except where the appeal is
restricted to the question of sentence). Even where the
appellant/accused has served the entire sentence and has also paid
the fine/served the default sentence, the appeal also cannot be
dismissed as 'infructuous' as the appellant/accused may opt to get
over the stigma of conviction. When the counsel for the appellant or
the appellant does not appear at the time the appeal is called for final
hearing, the Court cannot dismiss the appeal for non-prosecution and
must proceed to determine the appeal on merits by perusing the
records (except where the appeal is restricted to the question of
sentence) or after appointing an amicus curiae to assist the Court. It
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is not mandatory that the Court should always appoint a counsel at
state expense, and it may peruse the record on its own and decide the
appeal.
12. However, as rightly pointed out by the learned Public
Prosecutor and the learned amicus curiae, none of the aforesaid
decisions have considered whether the power of the High Court under
Section 482 of the Cr.P.C/528 of the BNSS can be invoked in
appropriate cases to permit the withdrawal of an appeal. It is evident
from a reading of the provisions of Section 482 Cr.P.C and Section
528 of the BNSS that no other provision in the Cr.P.C/BNSS shall be
deemed to limit or affect the inherent powers of the High Court to
make such orders as may be necessary to give effect to any order, or to
prevent abuse of the process of any Court or otherwise to secure the
ends of justice. This, coupled with the fact that the right of appeal
under Chapter XXIX of the Cr.P.C corresponding to Chapter XXXI of
the BNSS is not automatic and has to be invoked (subject to the
exceptions noted above), compels me to hold that in cases like these
where the appellants have served the entire sentence (of
imprisonment), have already paid the entire fine and or served the
default sentence, and are not interested in removing any stigma of
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conviction, it would be a proper exercise of inherent jurisdiction
vested in this Court under Section 482 of the Cr.P.C/528 of the BNSS
to allow the appeal to be withdrawn. Since such inherent power is not
available to Courts subordinate to the High Court, a request for
withdrawal cannot be entertained by any appellate court subordinate
to the High Court. The decisions in Balan (supra) and Samul
Philipose (supra) were concerned with orders passed by appellate
courts subordinate to the High Court. The decisions of the Supreme
Court referred to above dealt with different fact situations that have
been noticed, and those decisions do not in any manner indicate that
the power under Section 482 Cr.P.C, corresponding to Section 528 of
the BNSS is not available to be exercised while the High Court decides
an appeal in terms of the provisions in Chapter XXIX of the Cr.P.C or
Chapter XXXI of the BNSS.
In light of the aforementioned findings, the appeals are
dismissed as withdrawn, invoking the inherent jurisdiction of this
Court under Section 528 of the BNSS.
SD/-
GOPINATH P.
JUDGE
acd
