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  

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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).

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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  

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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  

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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  

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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  

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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.

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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.

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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  

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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  

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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  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 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.  

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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  

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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  

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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  

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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  

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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  

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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

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