Appeal Can Be Allowed To Be Withdrawn U/S.528 Of BNSS Where Convict Has Served Entire Sentence, Paid Fine & Isn’t Interested In Removing Stigma Of Conviction: Kerala High Court

The Criminal Appeals before the High Court were filed in cases registered under the SC/ST (Prevention of Atrocities) Act and the NDPS Act. The appellants requested that they be permitted to withdraw the appeals.

The Single Bench of Justice Gopinath P. held,“ 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 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of inherent jurisdiction vested in this Court under Section 482 of the Cr.P.C/528 of the BNSS to allow the appeal to be withdrawn.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.”

Advocate V.Shyam represented the Petitioner, while Senior Public Prosecutor Vipin Narayan represented the Respondent.

Arguments

One of the appellants contended that they had served their sentence, and another appellant had paid the entire fine. It was further submitted that the appellants did not wish to prosecute the appeals to get over the possible stigma associated with a conviction, and thus, they should be permitted to withdraw the appeals.

It was the case of the Public Prosecutor that there is no provision in the Code of Criminal Procedure, 1973 (CrPC) or the Bharatiya Nagarik Suraksha Sanhita, 2023 (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. It was further submitted 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.

Reasoning

Referring to a catena of judgments and the relevant provisions contained in Chapter XXIX of the Cr.P.C and Chapter XXXI of the BNSS, the Bench observed that there are no provisions in the CrPC 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.

As per the Bench, unless the power of the appellate court is invoked, there is no provision which enables the 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 such as 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”, it stated.

The Bench further held, “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.”

The Bench also explained that 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.

The Bench asserted, “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 Bench thus dismissed the appeals as withdrawn, invoking the inherent jurisdiction of the Court under Section 528 of the BNSS.

Cause Title: Shaji @ Shaiju v. State of Kerala (Neutral Citation: 2025:KER:67733)

Appearance

Petitioner: Advocate V.Shyam

Respondent: Senior Public Prosecutor Vipin Narayan, Amicus Curiae S. Rajeev

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