REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 937 OF 2009

(Arising out of SLP (Crl.) No. 3209 of 2008)

Mohammed Ishaq ..…Appellant

Versus

S. Kazam Pasha & Anr. .….Respondents

With

WRIT PETITION (CRL.) No. 13 OF 2008

JUDGMENT

Dr. Mukundakam Sharma, J.

SLP (Crl.) No. 3209/2008

1.Delay condoned.

2.Leave granted.

3.This appeal arises out of the judgment and order dated 29.01.2007 passed

by the High Court of Andhra Pradesh at Hyderabad whereby the learned

Single Judge partly allowed the appeal filed by the respondent herein by

setting aside his conviction for the offence under Sections 148, 392 and

Page 1 of 17

452 of the Indian Penal Code (for short ‘IPC’) and convicted him under

Sections 147 and 451 IPC.

4.Factual matrix of the case is as follows:

Mohd. Ishaq – PW-1 (the appellant herein) is a resident of House No.

23-2-10, Khaja-Ka-Chilla, Moghalpura, Hyderabad which is a sarfakhas

property. His father, Mohd. Maqbool was working as watchman of Khaja-

Ka-Chilla. He resided in the said house as per the agreement with sarfakhas.

After his death, his son (PW-1) continued to live in the said house with his

family members. PW-7 and Anjuna Fathima are the sisters of PW-1. PW-2

and PW-9 are daughters of PW-7. PW-8 is daughter of his another sister.

PW-10 is the younger sister of PW-8. PW-13 is wife of PW-1. They were

all residing together in the above-mentioned house. The said house

comprises of six rooms, out of which three rooms fell to the share of PW-1,

two rooms fell to the share of his sister – Ahmedi Begum (PW-7) and one

room fell to the share of his another sister – Anjum Fatima. One Latif

Khader Saheb had established Latifaia Arabic College by the side of house

of the appellant herein. Respondent herein (A-1) is the son-in-law of said

Latif Khader Saheb. Respondent (A-1) was working as Librarian in the said

college. A-2 to A-5 are employees of the said college whereas A-6 and A-7

are friends of respondent (A-1).

Page 2 of 17

5.It has been stated that A-1 to A-7 demanded that the appellant would

vacate the above-mentioned house. They tried to evict the appellant

forcibly from the house but locality of the people intervened and made

their efforts futile. However, on 10.06.1990 at 7.00 AM, Ayesha Khan

(PW-2) while taking water from a tap which was near the gate of Khaja-

Ka-Chilla saw A-1 to A-7 entering the premises. She went and informed

her mother Ahmedi Begum (PW-7). The appellant (PW-1) and PW-7

closed the doors of the house so as to prevent the entry of A-1 to A-7 and

their associates. However, A-1 to 7 broke open the doors of the house

and gained entry into the house. When they attempted to lift the

household articles, the appellant and his sister’s husband Mohd. Qasim

went through another door of the house to the police station to inform the

highhanded acts of the accused. When PWs 7, 9, 10 and 13 prevented A-

1 and his associates from removing the household articles, they were

beaten up by the accused. By the time appellant returned from the police

station, A-1 and his associates loaded household articles in a lorry

bearing No. ABT 6596 and emptied the house. The efforts made by PW-

1 to prevent A-1 to A-7 and their associates from removing the household

articles did not yield any fruitful result. He along with the injured

woman folk i.e. PWs 7,9,10 and 13 went to the police station and

Page 3 of 17

presented a report. One M.A. Hafiz Khan (PW-17), Inspector of Police,

Mogalpura Police Station received the report and registered a case

bearing Crime No. 69 of 1990 under Sections 147, 452 and 392 of IPC

and sent the injured i.e. PWs 7,9,10 and 13 to the hospital. He inspected

the scene and found no house articles in the house bearing No. 23-2-10,

Khaja-Ka-Chilla, Mogalpura. Dr. Swarna Lata Singh (PW-5) medically

examined Ahmedi Begum (PW-7), Asma Begum (PW-9), Wjeed Shareef

(PW-10) and Naseem Begum (PW-13) and issued wound certificates in

respect of them.

6.PW-1, (the appellant herein) having come to know that his articles were

hidden at house No. 18-7-312/1/C/25, Talabkatta, Amannagar filed a

petition under Section 94 of Criminal Procedure Code (for short the

‘Cr.P.C.’) in the Court of Chief Metropolitan Magistrate-cum-First Addl.

Magistrate, Hyderabad for issuance of search warrant. The learned Chief

Metropolitan Magistrate issued the search warrant whereupon C.

Ravindra Nath (PW-14), Inspector of Police, CCS Hyderabad searched

the house adjacent to the house bearing No. 18-7-312/1/C/25, Talabkatta,

Amannagar and seized the household articles belonging to the appellant

party which were produced before the court. The learned Chief

Metropolitan Magistrate released the articles to PW-1 for interim custody

Page 4 of 17

pending disposal of the case. T. Bhojraj Yadav (PW-15), Inspector of

Police, CCS Hyderabad took up investigation from PW-17. He examined

PW-1 to PW-13 and recorded their statements under Section 161 Cr.P.C.

7.After completing the investigation, M.Madhav Reddy (PW-16), Inspector

of Police, filed the charge sheet before the XXI Metropolitan Magistrate,

Hyderabad. The Metropolitan Magistrate took the charge sheet on file

and committed the case to the Metropolitan Sessions Division,

Hyderabad. The Metropolitan Sessions Judge, Hyderabad took up the

case and assigned the same to the Additional Metropolitan Sessions

Judge, Hyderabad who framed charges under Sections 148, 452/149,

324/149 and 397/149 IPC in respect of all the accused persons i.e. A-1 to

A-7. The accused pleaded not guilty and claimed to be tried. To bring

home the guilt of the accused for the offences as aforesaid, the

prosecution examined 17 witnesses and proved 26 documents and exhibit

28 material objects.

8.The trial court, on appreciation of the evidence brought on record and on

hearing the prosecution and the accused, found A-1 guilty for the

offences under Sections 148, 452 and 392 IPC and convicted and

sentenced him to suffer rigorous imprisonment for six months and pay a

fine of Rs. 500/- in default, to suffer simple imprisonment for two months

Page 5 of 17

for the offence under Section 148 IPC; rigorous imprisonment for two

years and a fine of Rs. 500/- in default to suffer simple imprisonment for

two months for the offence under Section 452 IPC; rigorous

imprisonment for five years and a fine of Rs. 5,000/- in default to suffer

simple imprisonment for six months for the offence under Section 392

IPC. All the sentences were directed to run concurrently. However, the

trial court found A-2 to A-7 not guilty for the offences punishable under

Sections 148, 452, 392 read with Section 149 IPC and acquitted them

accordingly.

9.Aggrieved by the said judgment and order of the trial court, A-1

preferred an appeal in the Andhra Pradesh High Court contending that

since six of the named accused i.e. A-2 to A-7 were acquitted, it was not

proper and legal to convict him on the same set of evidence. The High

Court partly allowed the appeal filed by A-1 and set aside the conviction

of A-1 for the offences under Sections 148, 392 and 452 IPC and

acquitted him of the same. However, the High Court convicted A-1 for

the offences under Sections 147 and 451 IPC and sentenced him to suffer

rigorous imprisonment for a period of six months and pay a fine of Rs.

1000/- in default to suffer simple imprisonment for three months for the

offence under Section 147 IPC and rigorous imprisonment for a period of

Page 6 of 17

six months and pay a fine of Rs. 1000/- in default to suffer simple

imprisonment for three months for the offence under Section 451 IPC.

10.Aggrieved by the said decision of the High Court, the PW-1 (Mohd.

Ishaq) though not a party before the High Court, has preferred the present

SLP as the State of Andhra Pradesh chose not to file an appeal against the

judgment and order of the High Court.

11.The short question for consideration before us is whether the High Court

was justified in acquitting the respondent from the offences punishable

under Sections 148, 452 and 392 of IPC.

12.A scrutiny of the evidence on record shows that it has come out in

evidence of PW-7 and PW-9 that A-1 beat PW-9 with a knife on her left

forearm and PW-9 sustained a bleeding injury and the said part of

evidence is supported by the wound certificate of PW-9. Further, with

regards to the gathering outside the house of PW-1 is concerned, the

evidence of PW-11 and 12 corroborates the evidence of PW-7, PW-9,

PW-10 and PW-13. That being the position, there cannot be any doubt of

the fact that it was an unlawful assembly, which was armed with deadly

weapons, within the meaning of Section 141 and 148 IPC and the said

unlawful assembly was acting at the instance of A-1.

Page 7 of 17

13.It has been contended by the respondent that PW-1 was not in possession

of the house and in a separate civil proceeding (OS 3369/90) PW-1 has

admitted that he was dispossessed by one Abdul Rawoof Khan on

20.05.1990. However, the plaint was subsequently amended as per the

order of civil court and the date of 20.06.1990 has been mentioned at the

place of 20.05.1990. In this regard, the testimonies of PW-2, PW-7, PW-

9, PW-10 and PW-13 clearly establish that PW-1 was in possession of

the said house on the date of offence and all his belongings were forcibly

taken away in the lorry at the instance of A-1.

14.Another contention which has been advanced by the respondent that PW-

1 was not present at the scene of offence. However, even if we aside the

testimony of PW-1 in this regard, the testimonies of PW-2, PW-7, PW-9,

PW-10 and PW-13 which have been corroborated by the evidence of

PW-11 and 12 clearly establish that a mob of 60-70 person with a

common object of using criminal force and to take away and remove the

house-hold belongings of PW-1 from the said house entered the house of

PW-1. The said evidence further establishes that the gathering of mob

outside the house of PW-1 was an unlawful assembly, which was armed

with deadly weapons. The same would clearly fall within the ambit of

Section 141 and 148 IPC.

Page 8 of 17

15.It has been further established beyond reasonable doubt that A-1 along

with some others entered into the house of PW-1 and committed robbery.

So, the case of A-1 would clearly fall within the ambit of Section 392

IPC.

16.It is further proved beyond reasonable doubt that A-1 has committed

house trespass by putting PW-1 and other inmates of the house in fear to

hurt and thus, committed an offence under Section 452 IPC.

17.Accordingly, A-1 is liable to be convicted under Sections 148, 392 and

452 IPC, which we hereby do and order. Consequently we restore the

order of sentence passed by the trial court. The accused shall surrender

immediately to serve out the remaining part of the sentence and the

police is directed to take him into custody if he does not surrender within

a period of fifteen days from today. Appeal is allowed accordingly.

Writ Petition (Cri.) 13/2008

18.This writ petition has been preferred under Article 32 of the Constitution

by the petitioner (Mohammed Ishaq) who is the appellant in above-

mentioned SLP (Cri.) 3209/2008. This writ originates from the same set

Page 9 of 17

of factual matrix as discussed in the aforesaid appeal except some

additional facts which we propose to discuss herein below.

19.The petitioner has sought to invoke writ of certiorari to quash the order of

Government of Andhra Pradesh dated 24.04.2007 and writ of mandamus

directing the Union of India and the State of Andhra Pradesh to take steps

for the implementation of order of sentence passed by the Andhra

Pradesh High Court against A-1. Since the order of commutation is

based on consideration of irrelevant materials and non-consideration of

relevant materials the same is liable to be set aside.

20.Mr. Amarendra Sharan, Additional Solicitor General, has strenuously

contended that the petition is not maintainable as the PW-1 cannot

directly come to the Supreme Court. He has vehemently argued that at

the time of granting remission, all relevant materials including medical

report of A-1 have been taken into account by the government.

Accordingly, the writ petition deserves to be dismissed.

21.On the preliminary issue of maintainability of present writ petition, it is

well settled position of law that simply because a remedy exists in the

form of Article 226 of the Constitution for filing a writ in the concerned

High Court, it does not prevent or place any bar on an aggrieved person

Page 10 of 17

to directly approach the Supreme Court under Article 32 of the

Constitution. It is true that the court has imposed a self-restraint in its

own wisdom on the exercise of jurisdiction under Article 32 where the

party invoking the jurisdiction has an effective, adequate alternative

remedy in the form of Article 226 of the Constitution. However, this rule

which requires the exhaustion of alternative remedies is a rule of

convenience and discretion rather than a rule of law. At any rate it does

not oust the jurisdiction of this Court to exercise its writ jurisdiction

under Article 32 of the Constitution. We therefore, reject the preliminary

objection raised and proceed to examine the contentions raised in the

Writ Petition on merits.

22.It would be useful to mention here that after the judgment and order

dated 29.01.2007 of the High Court, the A-1 surrendered before the court

of 1

st

Additional Metropolitan Sessions Judge at Hydrabad on

16.04.2007. However, the Government of Andhra Pradesh commuted six

month rigorous imprisonment given to A-1 into fine of Rs. 5000 and

released A-1 immediately after one week of his surrender on 24.04.2007.

It is the case of the petitioner that he came to know about the said

development only when some local newspaper reported the same on

06.12.2007 and 07.12.2007.

Page 11 of 17

23.Coming to the factual position of the case with regard to the

commutation, we have noticed that various materials were taken into

consideration when the request for commutation of six month RI into fine

was made by the A-1. A-1 submitted his representation to the

Government through Director General & Inspector General of Prison &

Correctional Services, Hyderabad stating that he is a qualified Islamic

Scholar preaching religious and communal harmony all over the country

and has been suffering from multiple medical ailments. The said DG

forwarded the representation to the State Government for necessary

action. The State Government then called for reports from the

Commissioner of Police, Hyderabad; the Collector, Hyderabad and the

Regional Inspector of Probation, Hyderabad. Since the reports of these

three above-mentioned functionaries formed the basis of impugned order,

it is relevant to take note of some interesting features of these documents.

24.The Commissioner of Police, Hyderabad in his report noted that A-1 was

suffering from a number of ailments. He further opined that PW1 is not

involved in any other case other than the present one. He further stated in

his report that he is a known Islamic scholar and preaches communal

harmony and has been cooperating with the police on several occasions

for maintenance of peace in the city and that he does not have any

Page 12 of 17

political connections and that there is no risk to law and order situation if

his sentence is commuted. The Collector, Hyderabad in his report noted

that A-1 has a traditional family background and he was reportedly an

active participant in the peace committee meetings and other programme

relating to fostering of communal harmony and peace in locality. He

further stated that there was no other criminal cases pending against him

and no anticipated apprehension or unrest from any quarter is likely to

arise so far as the request of commutation is concerned. The District

Probationary Officer, Hyderabad in his report stated that no untoward

incidents are expected to take place on the release of A-1 and accordingly

recommended for commutation of sentence. On the basis of these reports,

the Government of Andhra Pradesh commuted the sentence of A-1 under

Section 433(c) Cr.P.C.

25.It is well settled that the exercise or non-exercise of pardon power by the

President or Governor, as the case may be, is not immune from judicial

review. Limited judicial review is available in certain cases. This Court

has succinctly discussed the issue in the case of Epuru Sudhakar &

Anr. v. Government of Andhra Pradesh & Others, (2006) 8 SCC 161

that the consideration of religion, cast or political loyalty of a convicted

Page 13 of 17

person for the purpose of commutation of his sentence are held to be

prohibited grounds. It observed as follows in relevant paras:

“34. The position, therefore, is undeniable that judicial review

of the order of the President or the Governor under Article 72 or

Article 161, as the case may be, is available and their orders can

be impugned on the following grounds:

(a) that the order has been passed without application of

mind;

(b) that the order is mala fide;

(c) that the order has been passed on extraneous or

wholly irrelevant considerations;

(d) that relevant materials have been kept out of

consideration;

(e) that the order suffers from arbitrariness.

66. Granting of pardon is in no sense an overturning of a

judgment of conviction, but rather it is an executive action that

mitigates or sets aside the punishment for a crime. It eliminates

the effect of conviction without addressing the defendant’s guilt

or innocence. The controlling factor in determining whether the

exercise of prerogative power is subject to judicial review is not

its source but its subject-matter. It can no longer be said that

prerogative power is ipso facto immune from judicial review.

An undue and unjustified exercise of this power is to be

deplored. Considerations of religion, caste or political loyalty

are irrelevant and fraught with discrimination. These are

prohibited grounds. The Rule of Law is the basis for evaluation

of all decisions. The supreme quality of the Rule of Law is

fairness and legal certainty. The principle of legality occupies a

central plan in the Rule of Law. Every prerogative has to be

subject to the Rule of Law. That rule cannot be compromised

on the grounds of political expediency. To go by such

considerations would be subversive of the fundamental

principles of the Rule of Law and it would amount to setting a

dangerous precedent. The Rule of Law principle comprises a

requirement of “Government according to law”. The ethos of

“Government according to law” requires the prerogative to be

exercised in a manner which is consistent with the basic

Page 14 of 17

principle of fairness and certainty. Therefore, the power of

executive clemency is not only for the benefit of the convict,

but while exercising such a power the President or the

Governor, as the case may be, has to keep in mind the effect of

his decision on the family of the victims, the society as a whole

and the precedent it sets for the future.”

26.There is no denial of the fact that while making request for commutation

of sentence, A-1 has not made any reference to the effect that he was in

fact absconding for about 4 months before his surrender. He was fugitive

to law for four months. The records clearly show that the High Court

gave its decision on 29.01.2007, but A-1 surrendered before the Court of

Additional Metropolitan Sessions Judge only on 16.04.2007. None of the

reports mentioned herein above took into consideration this vital aspect

of the case that, even after imposition of sentence by the High Court, A-1

showed utter disregard to the rule of law by evading the arrest.

Interestingly, A-1 is stated to have been drawing his salary during the

aforesaid period when he was absconding which unmistakably shows his

callous attitude towards rule of law. The executive clemency may not be

extended to a law disobeying citizen who did not surrender before the

trial court as mandated by the law. This vital aspect has been completely

ignored by the Andhra Pradesh government who without any application

of mind accepted the reports submitted by different functionaries in

undue haste and finished the entire exercise within a week from the date

Page 15 of 17

of request of commutation by A-1. In fact, the order of commutation is

just reiteration of the identical reports submitted by different government

authorities without any independent scrutiny. It has been stated that A-1

is suffering from multiple medical ailments, but neither his petition for

commutation nor any report nor the order of commutation provides any

details with regard to what kind of medical ailment he is suffering from.

We are of the view that by simply making vague and bald statements,

without having even an iota of indication with regards to the actual

disease or ailment is not sufficient to justify the order of commutation.

The order of commutation on the basis of these statements without

ascertaining its genuineness/veracity shows that the impugned order was

passed without any application of mind.

27.We may add here that the appropriate Government must not as a matter

of routine, indulge in exercise of such powers at its sweet will, pleasure

and whim or fancy. The powers conferred upon the appropriate

Government under Section 433 Cr.P.C., must be exercised in accordance

with rules and established principles i. e. reasonably and rationally,

keeping in view the reasons germane and relevant for the purpose of law

under which the conviction and sentence has been imposed. While

exercising such power, relevant facts necessitating the commutation, and

Page 16 of 17

the interest of the society and public interest must be reflected and well

established. The exercise of any power vested by the statute in a public

authority is to be always viewed as in trust, coupled with a duty to

exercise the same in the larger public and social interest.

28.In view of the aforesaid discussion, we find that the order of the Andhra

Pradesh government is untenable in law. It is also to be indicated that in

view of the order passed by this Court convicting the appellant under

Sections 148, 382 and 452 IPC and restoration of the order of sentence

passed by the Trial Court, the impugned order passed by the State

Government is also liable to be struck down on the ground of changed

situation and circumstances. The writ petition is allowed to the aforesaid

extent.

..………………………..J.

[S.B. Sinha]

.....………………………J.

[Dr. Mukundakam Sharma]

New Delhi,

May 6, 2009

Page 17 of 17