S.528 BNSS | High Courts Can Exercise Inherent Jurisdiction To Permit Withdrawal Of Criminal Appeals Preferred By Convicts: Kerala High Court
The Kerala High Court recently permitted the withdrawal of two criminal appeals filed by convicts by exercising the inherent power available to it under Section 528 of Bharatiya Nagarik Suraksha Sanhita (corresponding to Section 482 of Code of Criminal Procedure).Justice Gopinath P. clarified that such power to permit withdrawal of appeals is available only to the High Courts and not...
The Kerala High Court recently permitted the withdrawal of two criminal appeals filed by convicts by exercising the inherent power available to it under Section 528 of Bharatiya Nagarik Suraksha Sanhita (corresponding to Section 482 of Code of Criminal Procedure).
Justice Gopinath P. clarified that such power to permit withdrawal of appeals is available only to the High Courts and not to subordinate courts entertaining appeals. He observed:
“…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of inherent jurisdiction vested in this Court under Section 482 of the Cr.P.C/528 of the BNSS to allow the appeal to be withdrawn.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.”
The present two appeals considered by the Court were not connected on merits but both the appellants had already served the sentences imposed against them by the trial courts, and had paid fines/undergone default sentence for non-payment of fine. Since they did not wish the prosecute the appeals, they prayed for withdrawal of the same.
The Court observed that the right to appeal under CrPC/BNSS is not automatic and has to be invoked, whether it is appeal against conviction or against acquittal. Moreover, an appeal would not become 'infructuous' simply because sentence have been undergone and the appellants may wish to do away with the stigma of conviction. Therefore, courts have to dispose of the same on merits.
The judge also noted that the CrPC or BNSS does not have any provision that permits withdrawal of appeals by appellants other than public prosecutors. However, since there are no provisions that limits the inherent powers of the High Court either, the power can be exercised to permit withdrawal of appeals.
The Court looked into the various precedents of the High Courts and the Supreme Court including, Balan v. State of Kerala (1981), Samul Philipose v. Koshy Thomas (2009), Muhammed Alias Kunhalan v. Sub-Inspector of Police (2022), and Gurjant Singh v. State of Punjab (2021).
It observed:
“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.”
The Court, thereafter, dismissed the appeals as 'withdrawn', without going into the merits of the cases.
Case No: Crl.A No. 12 of 2015 and connected case
Case Title: Shaji @ Shaiju v. State of Kerala
Citation: 2025 LiveLaw (Ker) 566
Counsel for the appellants: V. Shyam, V.A. Ajivas
Counsel for the respondent: Vipin Narayan (Sr. PP)
Amicus Curiae: S. Rajeev