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Thursday, January 1, 2015

2014-OCT.PART- S.C.- CRIMINAL APPEAL NO.2184 OF 2014 [Arising out of Special Leave Petition (Crl.) No.5192 of 2014] State of Rajasthan ... Appellant Vs. Mohammad Muslim Tagala … Respondent


                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPEAL NO.2184 OF 2014
       [Arising out of Special Leave Petition (Crl.) No.5192 of 2014]

State of Rajasthan                      ...             Appellant


Mohammad Muslim Tagala       …               Respondent



1.    Leave granted.

2.    The respondent was tried along with two others viz. Sabena  and  Mohd.
Daud  by the Additional District &  Sessions  Judge  (Fast  Track),  Sikkar,
Rajasthan in Sessions Case No.24  of  2007  for  offences  punishable  under
Sections 363, 366, 376, 307 read with Section 109 of the Indian  Penal  Code
(“the IPC”).  Learned Sessions Judge, Sikkar by  judgment  and  order  dated
11/6/2008 acquitted Sabena  and  Mohd.   Daud,  of  all  the  charges.   The
respondent was convicted for offence punishable under  Section  363  of  the
IPC and sentenced to  undergo  RI  for  three  years  and  to  pay  fine  of
Rs.1,000/-, in  default,  to  undergo  SI  for  six  months.   He  was  also
convicted under Section 366A of the IPC and sentenced to suffer RI for  five
years and to pay a fine of Rs.2,000/-, in default, to  undergo  SI  for  six
months.  He was also convicted for offence punishable under Section  376  of
the IPC and sentenced to undergo RI for seven  years  and  to  pay  fine  of
Rs.5,000/-,  in default, to undergo SI  for  six  months.   The  substantive
sentences were ordered to run concurrently.

3.    Being aggrieved by the said judgment and order, the  respondent  filed
appeal in the Rajasthan High Court.  It is noticed from the  impugned  order
that in the High Court, counsel for the respondent did not  argue  the  case
on merits.  He only requested the Court that the concerned  authorities  may
be directed to give benefit of Section 433 of the  Criminal  Procedure  Code
(“the Code”) to the respondent.  Learned  Public  Prosecutor  appearing  for
the State of Rajasthan did not oppose the said  prayer  and  this  fact  was
recorded by the High Court in the impugned order.  The High Court then  gave
a direction to the concerned authorities to give the  appellant  benefit  of
Section 433 of the Code and disposed of the appeal.   The  relevant  portion
of the order could be quoted:

“Having heard the learned counsel for the parties and carefully perused  the
relevant material made available to me including the impugned judgment,  the
concerned authorities are directed  to  give  the  benefit  of  Section  433
Cr.P.C. to the accused appellant in accordance with law.”

4.    Being aggrieved by this order, the State of Rajasthan  has  filed  the
present appeal.

5.    On 8/5/2014, this  Court  asked  learned  counsel  for  the  State  of
Rajasthan whether the Public Prosecutor has really not opposed  the  request
made by the respondent’s counsel that the concerned authorities be  directed
to give the benefit of Section 433 of the Code to the  respondent.   Counsel
made a statement that the Public Prosecutor had not made  such  a  statement
in the High Court.  We,  therefore,  directed  that  an  affidavit  to  that
effect be filed.  The concerned Public Prosecutor has,  however,  not  filed
any affidavit.

6.    As directed by this Court, the respondent has been served through  ASI
Prem Singh, P.O. Kotwali, Sikkar, Rajasthan.  ASI Prem Singh  has  filed  an
affidavit to that effect.  Proof of service of  notice  is  annexed  to  the
said affidavit.  Despite service, the respondent has chosen  not  to  appear
in person or through a pleader.  Hence, on 17/9/2014,  this  Court  directed
the Registry  of  this  Court  to  appoint  a  lawyer  for  the  respondent.
Accordingly, Mr. John Mathew, Advocate, has been appointed by  the  Registry
of this Court and he has ably assisted us today.

7.    The appellant-State has challenged the impugned order  on  the  ground
that the offence committed by the respondent was grave and,  therefore,  the
High Court erred in giving a direction to the authorities  to  give  benefit
of Section 433 of the Code to the respondent.  It is,  however,  not  stated
in the appeal memo that the Public Prosecutor did not concede  in  the  High
Court.  This statement was made only in this Court.  It must also be  noted,
at the outset, that the respondent has undergone seven  years’  imprisonment
and has been released  from  custody.   This  statement  has  been  made  by
counsel for the appellant-State and, in support of his  submission,  he  has
tendered in this Court a letter addressed by the Superintendent  of  Bikaner
Central Jail to the Additional Superintendent of  Police,  Sikkar.   Counsel
submitted that though the High Court  gave  a  direction  to  the  concerned
authorities to give the respondent benefit of commutation of sentence  under
Section 433 of the  Code,  the  said  benefit  was  not  given.   Since  the
respondent has been released from jail after serving  the  sentence  imposed
on him and no steps were taken by the concerned authorities pursuant to  the
direction given by the High Court, to  give  the  respondent  benefit  under
Section  433  of  the  Code,  the  present  appeal   has   actually   become
infructuous.  However, it is necessary to make certain  observations  before
disposing of this appeal as infructuous.

8.    Section  433  of  the  Code  pertains  to  power  of  the  appropriate
Government to commute  the  sentence  without  the  consent  of  the  person
sentenced.  It reads thus:

“433. Power to commute sentence. - The appropriate Government  may,  without
the consent of the person sentenced, commute-

(a)   a sentence of death, for any other punishment provided by  the  Indian
Penal Code (45 of 1860);

(b)   a sentence of imprisonment for life, for imprisonment for a  term  not
exceeding fourteen years or for fine;

(c)   a sentence of rigorous imprisonment, for simple imprisonment  for  any
term to which that person might have been sentenced, or for fine;

(d)   a sentence of simple imprisonment, for fine.”

9.    When the appropriate Government commutes the sentence,  it   does   so
in  exercise   of  its  sovereign  powers.   The  court  cannot  direct  the
appropriate Government to exercise its sovereign  powers.    The  Court  can
merely give a direction to the appropriate Government to consider  the  case
for commutation of sentence and nothing more.  This  legal  position  is  no
more res integra.

10.   In Delhi Administration (now NCT of Delhi)  v.  Manohar  Lal[1],  this
Court stated that the exercise of power under Section 433 of  the  Code  was
an executive discretion.  In State  of  Punjab   v.   Kesar  Singh[2],  this
Court clarified the position as under:

“The mandate of Section 433 CrPC enables the Government  in  an  appropriate
case to commute the sentence of a  convict  and  to  prematurely  order  his
release before expiry of the sentence as  imposed  by  the  courts.  …  That
apart, even if the High Court could give such a  direction,  it  could  only
direct consideration of the case of premature release by the Government  and
could not have ordered the premature release of the respondent  itself.  The
right to exercise the power under Section 433 CrPC vests in  the  Government
and has to be exercised by the Government in accordance with the  rules  and
established principles.  The  impugned  order  of  the  High  Court  cannot,
therefore, be sustained and is hereby set aside.”

11.   In State (Govt.  of  NCT  of  Delhi)   v.   Prem  Raj[3],  this  Court
referred to relevant portion of  41st  Report  of  the  Law  Commission  and
observed  that  the  powers  of  commutation  exclusively  vest   with   the
appropriate  Government.   At  the  same  time,  these  powers  have  to  be
exercised by the Government reasonably and rationally keeping  in  view  the
reasons  germane  and  relevant  for  the   purpose   of   law,   mitigating
circumstances and/or commiserative facts necessitating the  commutation  and
factors like interest of the society and public interest.

12.   The upshot of this discussion is that the High Court erred  in  giving
a direction  to  the  State  Government  to  commute  the  sentence  of  the
respondent.  It could have only directed the State  Government  to  consider
the respondent’s case for commutation of sentence.  In  any  case,  assuming
the High Court could have given such a direction, since it was dealing  with
a conviction under Section 376 of the IPC, it should have noted  the  extra-
ordinary  circumstances,  if  any,  which  persuaded  it  to  give  such   a
direction.  Unfortunately, the High Court merely noted the request  made  by
the counsel for the respondent and concession made  by  the  State  counsel.
If the High Court felt that the prosecution case was extremely weak and  the
respondent deserved to be acquitted, it should have discussed  the  evidence
and acquitted him.  But, it could not have adopted such a course.

13.   Before closing, we must express  our  extreme  displeasure  about  the
manner in which the Public Prosecutor made a concession in the  High  Court.
Firstly, the offence  is  grave  and  in  such  grave  offence,  the  Public
Prosecutor ought not to have made a concession that the court should  direct
the Government to commute the sentence.    Besides,  the  Public  Prosecutor
made  a  concession  without  examining  the  legal  position.   The  Public
Prosecutor  plays  a  very  important  role  in  a  criminal  case.  It   is
distressing to note that in such  a  serious  case,  the  Public  Prosecutor
should have shown such a  casual  approach.  Since  the  appeal  has  become
infructuous, we do not want to precipitate  the  matter  further.   We  only
hope that these observations of ours are taken note  of  by  all  concerned.
The appeal is disposed of as infructuous.

                                                     [Ranjana Prakash Desai]

                                                               [N.V. Ramana]
New Delhi
October 13, 2014.

[1]    (2002) 7 SCC 222
[2]    (1996) 5 SCC 495
[3]    (2003) 7 SCC 121


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