STATE OF RAJASTHAN Vs. MOHAMMAD MUSLIM TAGALA

Tags Rape

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 2184 of 2014, Judgment Date: Oct 13, 2014

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;

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.

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[1] (2002) 7 SCC 222

[2] (1996) 5 SCC 495

[3] (2003) 7 SCC 121

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