T. Moideen Koya v. Secretary to Government, Home Department, Government Secretariat, Trivandrum and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, 23RD SEPTEMBER,2008/1ST ASVINA, 1930 WA.No. 1381 of 2008 - ---------------------------AGAINST THE JUDGEMENT IN WPC.14614/2008 Dated 25/06/2008 .................... ## APPELLANT/PETITIONER: -------------------------------------- T.MOIDEEN KOYA, S/O.MOHAMMED KOYA, AGED 67 YEARS, VADAKKANCHERYPARAMBIL, KOLATHARA P.O, CHERUVANNUR AMSOM AND DESOM KOZHIKODE TALUK. BY ADV. SRI.SUNNY MATHEW RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. THE SECRETARY TO GOVERMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. STATE OF KERALA, REP; BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY SR.GOVT.PLEADER SMT.K.MEERA. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON 23/09/2008 DELIVERED THE FOLLOWING: ## **H.L. DATTU, C.J. & A.K. BASHEER, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.A. No. 1381 of 2008** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 23[rd] day of September, 2008** ## **Judgment** ## **Basheer, J:** Can the High Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, issue a writ of mandamus to a criminal court not to execute the sentence imposed on an accused pending his application before the Government for commutation of sentence under Section 433 (d) of the Code of Criminal Procedure? 2. The learned single Judge before whom the writ petition came up for consideration declined the above prayer. Nevertheless, the learned Judge directed the Government to consider the application submitted by the appellant for commutation expeditiously. The above order is under challenge in this writ appeal. 3. Relevant facts may be briefly noticed. 4. Appellant was tried for the offence punishable under Sections 279 and 338 of the Indian Penal Code. The trial court convicted and sentenced him to undergo simple imprisonment for 6 months and to pay a fine of Rs.1,000/- under Section 279 and to undergo simple imprisonment for one WA.1381/2008. 2 year and to pay a fine of Rs.1,000/- under Section 338. The appellate court, while confirming the order of conviction, had reduced the sentence to 3 months' simple imprisonment under section 279 IPC and to six months' simple imprisonment under section 338 IPC. Ultimately in revision, this Court had reduced the substantive sentence under Section 338 IPC to simple imprisonment for 3 months. Thus the appellant faces the gloomy prospect of incarceration for 3 months since the sentences are to run concurrently. 5. Appellant had submitted Ext.P2 application before the Government under Section 433(d) of the Code of Criminal Procedure seeking to commute the sentence of simple imprisonment for fine. But in the meanwhile, it appears, the Judicial Magistrate of First Class, Thamarassery had initiated steps to execute the sentence against the appellant and a Non Bailable Warrant of arrest was issued. It was at this stage that the appellant had filed the writ petition with a sole prayer which is extracted hereunder: _“To issue a writ of mandamus or any other appropriate writ, order or direction directing the Judicial Magistrate of First Class-I, Thamarassery not to execute the warrant issued against the petitioner in_ WA.1381/2008. 3 _CC.No.666/1994 till the 2[nd] respondent takes a decision on Exhibit.P2 statutory petition filed by the petitioner U/S. 433(d) of the Cr.P.C.”_ 6. Learned counsel for the appellant contends that the learned single Judge ought to have exercised the discretionary jurisdiction under Article 226 of the Constitution of India and stayed the execution of sentence of imprisonment, as otherwise the application submitted by the appellant before the Government would have become infructuous, if in the meanwhile appellant was arrested and sent to jail. It is further contended by the learned counsel that commutation of sentence as envisaged under Section 433 being a right statutorily recognised, it would be highly unjust and illegal if the said right is frustrated by bureaucratic delay. Since the process of consideration of the application at the appropriate level in the Government may consume some reasonable time, this Court under Article 226 can step in to ensure that there is no failure of justice. It is further contended that no prejudice is likely to be caused to any other individual or authority if execution of sentence is kept on hold for a short while, till the Government takes an appropriate decision in the matter. WA.1381/2008. 4 7. The power to grant pardons, retrieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence is vested with the President of India and the Governor of a State, respectively under Articles 72 and 161 of the Constitution of India. 8. Section 432 of the Code of Criminal Procedure deals with the power of the appropriate Government to suspend or remit sentences without conditions or upon any condition. Section 433 of the Code empowers the appropriate Government to commute a sentence of death, a sentence of imprisonment for life etc. for any other term of imprisonment, as provided under that section. It may be profitable to peruse the provisions contained in Section 433 in this context, which is extracted hereunder: “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; WA.1381/2008. 5 ©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. It is apparently clear from the above provisions that the power to be exercised by the appropriate Government for commutation of sentence is purely discretionary. It is true that the appropriate Government may commute a sentence of death for any other punishment provided by the Indian Penal Code. The Government may yet again commute a sentence of imprisonment for life for imprisonment for a term not exceeding fourteen years or fine. Sub-clause (d) enables the Governments to commute a sentence of simple imprisonment for a sentence of fine. 10. Admittedly the appellant has submitted Ext.P2 application seeking invocation of the power of the Government to commute as provided under sub-clause (d) of Section 433 of the Code. But as is evident from the provisions contained in Section 433, the power to be exercised by the Government is purely discretionary and not mandatory at all. Obviously therefore, this Court, in exercise of its power under Article 226 of the Constitution, may not be justified to issue a writ of mandamus commanding WA.1381/2008. 6 the Government to commute the sentence of imprisonment. Still worse, this Court cannot issue a writ of mandamus to a criminal court not to execute the sentence imposed by it, particularly when it has admittedly become final and conclusive. Therefore the prayer made by the appellant in the writ petition was rightly rejected by the learned single Judge. 11. In Dwarka Nath v. I.T.Officer (AIR 1966 SC 810), the Apex Court, while considering the contours of the power of the High Court under Article 226 of the Constitution to issue directions, orders or writs including a writ in the nature of habeas corpus, mandamus etc. had observed thus: _“Article 226 is couched in_ _comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. A wide language in describing the nature of the power, the purposes for which and the person or authority against whom it can be exercised was designedly used by the Constitution. The High Court can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the_ WA.1381/2008. 7 _expression “nature”, which expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. The High Courts are enabled to mould the reliefs to meet the peculiar and complicated requirements of this country. To equate the scope of the power of the High Court under Art.226 with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction would defeat the purpose of the article itself. But this does not mean that the High Court can function arbitrarily under this article. There are some limitations implicit in the article and others may be evolved to direct the article through defined channels.”_ (emphasis supplied) WA.1381/2008. 8 _12._ In Epuru Sudhakar & Anr. v. Govt. of A.P & Ors.(JT 2006 (9) SC 72), the power of the Government to remit or commute the sentence under Sections 432 and 433 of the Code had come up for consideration before he Apex Court. The scope of judicial review in such matters, particularly in the matter of grant of pardon under Article 72 and 161 of the Constitution was also considered by their Lordships in the said decision. The court held that exercise or non-exercise of power of pardon by the President or the Governor is not immune from judicial review. It was further held as under: _“Though the power under Article 72 as also under Article 161 is of the widest amplitude and envisages myriad kinds and categories of cases with facts and situations varying from case to case, the exercise of power depends upon the facts and circumstances of each case and the necessity or justification for exercise of that power has to be judged from case to case.”_ The court further observed that though one cannot draw guidelines for regulating the exercise of the power under Articles 72 and 161 of the Constitution, there must be requisite material on the basis of which the said power is exercised. In the leading judgment rendered by His Lordship Justice Arijit Pasayat, the judicial precedents on the subject were surveyed WA.1381/2008. 9 at length. Several authoritative texts on the subject were also considered. It was held that while exercising the power of pardon or remission, the authority concerned who seeks to exercise such discretionary power, “has to show the bona fides and must place materials with clean hands”. Irrelevant and extraneous materials shall not enter into the decision making process, it was held. 13. We have referred to the above decision in Epuru Sudhakar's case (supra) only to highlight the fact that wide discretion is vested with the competent authority in the matter of grant of pardons, reprieves, remissions or respites. The only fetter judicially imposed, is that the authority concerned must exercise the power of pardon with bona fides and only with reference to the requisite materials available on record. 14. It may also be noticed that in State of Punjab v. Kesar Singh ((1996) 5 SCC 495) the Supreme Court had held that the High Court, in exercise of its power under Article 226 of the Constitution, could not issue a direction to the Governments to order premature release of a detenue usurping the power vested with the Government under Section 433 of the Code. 15. A Division Bench of the Gujarat High Court in Triveniben v. WA.1381/2008. 10 State of Gujarat & Ors. (1990 Crl.L.J.273) had occasion to consider the question whether the High Court, in exercise of its power under Article 226 of the Constitution, could stay execution of the death sentence pending consideration of the application before the President of India under Article 72 of the Constitution. While answering the above question in the negative, the Division Bench held that the jurisdiction of the court in such matters is extremely limited. The court could only consider whether there was undue delay in disposing of the mercy petition pending before the authority. The court further went on to say that even inordinate delay by itself cannot render the execution of sentence unconstitutional. 16. As noticed already, petitioner has already approached the Government seeking invocation of its power of commutation. That does not mean that execution of sentence imposed on him should wait till the Governments takes a decision. Undoubtedly, it will be desirable if the Government does not drag its feet in the matter. At the same time, the convict cannot, as of right, insist that the Government must take a decision and communicate it to him with utmost promptitude. The Government can, of course, prescribe its own procedural formality in such matters. It has been brought to our notice that the Government had called for a medical WA.1381/2008. 11 report in view of the assertion made by the appellant that he is suffering from various ailments. Ms.Meera, learned Government Pleader has also informed us that several such mercy petitions are pending consideration before the Government. The Government can consider them only in the order of seniority. No application can be taken up for consideration out of turn. 17. As mentioned by us earlier, no right is vested in the appellant to insist that execution of sentence imposed on him has to be kept in abeyance till the Government takes a decision on his mercy petition; because the power of commutation vested in the Government is entirely a discretionary power. Admittedly the appellant had exhausted his remedies against the order of his conviction. Commutation was the last straw available to him. Exercise of the discretionary power of commutation falls exclusively in the province of the executive prerogative, as is evident from Section 433 of the Code. Therefore this Court cannot by issue of a writ of mandamus direct the Government to exercise that power one way or the other. The Government may or may not exercise that power in the given facts and circumstances of each case. So long as the said power is solely vested with the Government, this Court need not meddle with that discretionary power. WA.1381/2008. 12 But of course this Court can always direct the authority concerned to expedite the process of consideration of the mercy petition if that is pending. Nothing more, nothing less. The learned single Judge has done precisely that. Therefore we do not find any ground to interfere with the orders passed by the learned single Judge. 18. In any view of the matter, the larger prayer made by the appellant cannot be granted at all. Thus the question raised for consideration is answered in the negative. The Writ Appeal fails. It is accordingly dismissed. **H.L. DATTU Chief Justice** **A.K. BASHEER Judge** **an.**