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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

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

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

JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
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.

..………………………….J.
[Ranjana Prakash Desai]
………………………….J.
[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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