STATE OF RAJASTHANversusMOHAMMAD MUSLIM TAGALA

                       [2014] 10 S.C.R. 902


A                     STATE OF RAJASTHAN
                                 v.
                  MOHAMMAD MUSLIM TAGALA
                (Criminal Appeal No. 2184 of 2014)
                       OCTOBER 13, 2014
B
    [RANJANA PRAKASH DESAI AND N.V. RAMANA, JJ.]

       Code of Criminal Procedure, 1973: s.433 - Power of
  appropriate government to commute sentence - Conviction
C by trial court u/ss.363, 366A, 376 - Respondent-convict's
  case not argued on merits in High Court - Only plea on behalf
  of convict that the concerned authorities be directed to give
  benefit of s.433 - Public Prosecutor did not oppose the said
  prayer - High Court directed concerned authorities to give
o benefit of s.433 to the convict and dispose of the appeal -
  Challenged on the ground that the offence committed by the
  convict was grave and therefore, High Court erred in giving a
  direction to the authorities to give benefit of s.433 to the
  convict - Held: When the appropriate Government commutes
E the sentence, it does so in exercise of its sovereign powers -
  The court cannot direct the appropriate Government to
  exercise its sovereign powers - Court can merely give a
  direction to the appropriate Government to consider the case
  for commutation of sentence and nothing more - In the instant
F case, the benefit of s.433 was not given and the convict was
  released from jail after serving the sentence imposed on him
  - Since no steps were taken by the concerned authorities to
  give the respondent benefit u/s. 433, the appeal has actually
  become infructuous - The casual manner in which Public
  Prosecutor made concession in High Court condemned -
G Judicial deprecation.

        Disposing of the appeal as infructous, the Court

        HELD: 1. The High Court erred in giving a direction
H                           902
 STATE OF RAJASTHAN v. MOHAMMAD MUSLIM               903
                 TAGALA
to the State Government to commute the sentence of the A
respondent. It could have only directed the State
Government to consid~r the respondent's case for
commutation of sentence. Unfortunately, the High Court
merely noted the request made by the counsel for the
respondent and concession made by the State counsel. B
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. The manner in which the Public Prosecutor made C
a concession in the High Court is condemned. 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 D
Public Prosecutor plays a very important role in a criminal
case. It is distressing that in such a serious case, the
Public Prosecutor showed such a casual approach.
[Paras 12, 13] [908-D-H; 909-A-B]
                                                            E
     Delhi Administration (now NCT of Delhi) v. Manohar Lal
(2002) 7 SCC 222: 2002 (2) Suppl. SCR 1; State of Punjab
v. Kesar Singh (1996) 5 SCC 495: 1996 (3) Suppl. SCR
787; State (Govt. of NCT of Delhi) v. Prem Raj (2003) 7 SCC
121: 2003 (2) Suppl. SCR 235 - relied on.                   F
                    Case Law Reference:
 2002 (2) Suppl. SCR 1        relied on        Para 10
 1996 (3) ,Suppl. SCR 787     relied on        Para 10
                                                           G
 2003 (2 ) Suppl. SCR 235     relied on        Para 11
    CRIMINAL APPELLATE
              \
                       JURISDICTION: Criminal Appeal
No. 2184 of 2014.
      904      SUPREME COURT REPORTS                [2014] 10 S.C.R.


  A       From the Judgment and Order dated 18.07.2013 in
      SBCRA No. 639 of 2008 of the High Court of Rajasthan at
      Jaipur.

            Milind Kumar for the Appellant.
. 8         John Mathew (a.c.) for the Respondent.

            The Judgment of the Court was delivered by

          (SMT.) RANJANA PRAKASH DESAI, J. 1. Leave
  C   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,
  D   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
  E   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
  F   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
  G   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
  H   Procedure Code ("the Code") to the respondent. Learned
    STAT~ OF RAJASTHAN  v. MOHAMMAD MUSLIM                     905
        TAGALA [RANJANA PRAKASH DESAI, J.)
  Public Prosecutor appearing for the State of Rajasthan did not       A
  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:                   B

       "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 C
       Cr.P. C. to the accused appellant in accordance with Jaw."

      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        D
  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             E
  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,                 F
  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      G
  respondent. Accordingly, Mr. John Mathew, Advocate, has been
  appointed by the Registry of this Court and he has ably assisted
  us today.

                                                                       H
    906       SUPREME COURT REPORTS              [2014) 10 S.C.R.


A         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
B   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
c   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
D   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
E   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.

F       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:·
               0


               "433. Power to commute sentence. - The
          appropriate Government may, without the consent of the
G         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
H
 STATE OF RAJASTHAN v. MOHAMMAD MUSLIM                       907
    TAGALA [RANJANA PRAKASH DESAI, J.]
     imprisonment for a term not exceeding fourteen years or A
     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;
                                                                     B
            (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       c
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.               D
Manohar La/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 Singh2, this Court clarified the position
as under:
                                                                     E
     "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     F
     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            G
     by the Government in accordance with the rules and
     established principles. The impugned order of the High

1.   c200?) 1 sec 222.
2.   (1996) 5 sec 495.                                               H
    908        SUPREME COURT REPORTS            [2014] 10 S.C.R.


A          Coult cannot, therefore, be sustained and is hereby set
           aside."

         11 . In State (Govt. of NCT of Delhi) v. Prem Raj3, this
    Court referred to relevant portion of 41 st Report of the Law
B   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
C   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
D   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 dealfng with a
    conviction under Section 376 of the IPC, it should have noted
    the extra-ordinary circumstances, if any, which persuaded it to
E   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
F   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
G   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

H   3.    (20D3) 7 sec 121.
  STATE OF RAJASTHAN v. MOHAMMAD MUSLIM                       909
     TAGALA [RANJANA PRAKASH DESAI, J.]
Prosecutor made a concession without examining the legal             A
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      B
observations of ours are taken note of by all concerned. The
appeal is disposed of as infructuous.

Devika Gujral                                  Appeal disposed of.