Mohammed Ishaq Vs. S.
Kazam Pasha & ANR.  INSC 965 (6 May 2009)
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
SLP (Crl.) No.
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 452 of the Indian Penal
Code (for short `IPC') and convicted him under Sections 147 and 451 IPC.
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).
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 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.
(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 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.
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.
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 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.
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 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.
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.
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.
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.
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.
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
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.
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.
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.)
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 of factual matrix as
discussed in the aforesaid appeal except some additional facts which we propose
to discuss herein below.
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.
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.
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 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.
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 1st 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
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.
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.
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 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.
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 person for
the purpose of commutation of his sentence are held to be prohibited grounds.
It observed as follows in relevant paras:
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
(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.
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 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."
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 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.
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 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.
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.