Holding

A‑1 is liable to be convicted under IPC sections 148, 392 and 452 and the order of commutation under CrPC s.433(c) is invalid and set aside.

Summary

The case arose from a violent intrusion by A‑1 and his associates into the house of Mohammed Ishaq, during which household articles were seized and several occupants were assaulted. The trial court convicted A‑1 under IPC sections 148 (unlawful assembly), 392 (robbery) and 452 (house‑trespass) and sentenced him to rigorous imprisonment, but the Andhra Pradesh High Court set aside those convictions and instead convicted him under sections 147 and 451. A‑1 obtained a commutation of his sentence under CrPC s.433(c) on the basis of medical and character reports, which the petitioner challenged by a writ petition under Article 32. The Supreme Court held that the evidence established an armed unlawful assembly, robbery and house‑trespass, thereby justifying conviction under sections 148, 392 and 452, and restored the trial‑court judgment. It also held that the commutation order was vitiated by lack of application of mind, reliance on irrelevant material and failure to consider the fact that A‑1 had absconded for four months, rendering the order illegal and subject to judicial review. Consequently, the Court set aside the commutation and reinstated the original conviction, allowing the appeal and partly allowing the writ.

Issues considered

The correctness of the High Court's acquittal of A‑1 on charges under sections 148, 392 and 452 IPC.
Whether the order of commutation of sentence under CrPC s.433(c) is open to judicial review and if it was passed in accordance with the statutory requirements.
The maintainability of a writ petition under Article 32 despite the availability of an alternative remedy under Article 226.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 433, s. 433(c), s. 94
Constitution of Indias. Article 226, s. Article 32
Indian Penal Code, 1860s. 141, s. 147, s. 148, s. 149, s. 324, s. 382, s. 392, s. 397, s. 451, s. 452

Subjects

unlawful assemblyrobberyhouse trespasscommutation of sentenceexecutive clemencyjudicial reviewArticle 32Section 433 CrPCIPC sections 148 392 452

Judgment

(2009]7 S.C.R. 1098

A MOHAMMED ISHAQ 1
V.
S. KAZAM PASHA & ANR.
Criminal Appeal No. 937 of 2009
MAY 06, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
Penal Code, 1860: ss. 148, 452, 392 - Accused persons
allegedly broke open the doors of house of the appellant and ,.
~
removed household articles and beat resident of the house -
c Trial Court convicted A-1 under ss. 148, 452, 392 and acquitted
others - High Court set aside conviction order passed by trial
court however convicted A-1 under ss. 147 and 451- On appeal,
held: Testimonies of prosecution witnesses established that
appellant was in possession of the said house on the date of
D offence and all his belongings were forcibly taken away in the
lorry at the instance of A-1 - Mob of 60-70 person with a
common object of using criminal force and to remove the
house-hold belongings of appellant entered his house -
Gathering of mob was an unlawful assembly, which was armed
E with deadly weapons - Same would fall u/ss.141 and 148 -
Also established that A-1 along with others committed robbery ~

•
- Same would fall u/s.392 - It was further proved that A-1
committed house trespass by putting appellant and other
inmates of the house in fear to hurt and thus, committed offence J-.
F u/s. 452 - Accordingly, he is liable to conviction ulss. 148, 392
and 452.
Sentence/Sentencing: Commutation of sentence -
Sentence commuted by the Government on the basis of
reports of Commissioner of police, Collector and Probationary
G Officer - Challenged - Held: Accused was fugitive to Jaw for
four months - He showed utter disregard to rule of law by ~

evading his arrest - Executive clemency may not be extended ;
to a law disobeying citizen who did not surrender before trial

H 1098
MOHAMMED ISHAQ V. S. KAZAM PASHA & ANR. 1099

cowt as mandated by law- This vital aspect was completely A
f
ignored by the Government who without 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 - Vague and bald
statements with regard to actual disease or ailment not B
sufficient to justify order of commutation, without ascertaining
genuineness - Power conferred upon appropriate government
under s. 433 must be exercised in accordance with rules - Code
"'\
of Criminal Procedure, 1973 ::-- s.433 - Administrative law -

- -f
Judicial review - Exercise of power by Governor - Judicial
review of - Scope.
Prosecution case was that PW-1 (appellant) was the
c

resident of a Sartakhas property. Two sisters of PW-1 along
with their daughters were residing together in the said
house. Father-in-law of A-1 established an Arabic college D
by the side of house of PW-1. A-1 was working as librarian
• in the said college. A-2 to A-5 were employees of the said
college whereas A-6 and A-7 were friends of A-1.
A-1 to A-7 wanted PW-1 to vacate the house occupied
by him and tried to evict him forcibly but locality of the E
\ people intervened and made their efforts futile. On the day
of incident, A-1 to A-7 broke open the doors of the house
of PW-1. When PWs 7, 9, 10 and 13 prevented A-1 and
Jill( others from removing the household articles, they were
beaten up by the accused persons. They loaded the F
articles and emptied the house. PW-1 came to know that
his articles were hidden in a house. He filed a petition
under section 94 Cr.P.C. for issuance of search warrant.
On search, the household articles belonging to appellant
party were seized and the MM released articles pending G
~
disposal of the case. The trial court found A-1 guilty for
offence under Sections 148, 452 and 392 IPC. However A-
2 to A-7 were acquitted.
Aggrieved A-1 filed appeal before the High Court
H
1100 SUPREME COURT REPORTS [2009) 7 S.C.R.

A contending that since A-2 to A-7 were acquitted, it was
not proper to convict him on the same set of evidence.
The High Court partly allowed the appeal filed by A-1 and
set aside his conviction for the offences under Sections
148, 392 and 452 IPC and acquitted him of the same.
B However, High Court convicted A-1 for the offences under
Sections 147 and 451 IPC.
Aggrieved by the said decision of the High Court,
PW-1 though not a party before the High Court, preferred
the present SLP as the State chose not to file an appeal
C against the judgment of the High Court. PW-1 also filed
writ petition under Article 32 of the Constitution seeking
to invoke the writ of certiorari to quash the Government's
-
order of commutation of sentence and direction to the
Union of India and the State to take steps for implemen-
0 tation of the order of sentence passed by High Court
against A-1.
Allowing the appeal and partly allowing the writ
petition, the Court
E HELD: 1.1. A scrutiny of the evidence shows that A-1
beat PW-9 with a knife on her left forearm and as a result
PW-9 sustained a bleeding injury. The said part of
evidence was supported by the wound certificate of PW-
9. The evidence of PW-11 and 12 corroborated the
F evidence of PW-7, PW-9, PW-10 and PW-13 with regard to •
the gathering outside the house of PW-1 was concerned.
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
G and 148 IPC and the said unlawful assembly was acting
at the instance of A-1. [Para 12] [1109-C-E]
1.2. The testimonies of PW-2, PW-7, PW-9, PW-10 and .f
PW-13 clearly established that PW-1 was in possession
of the said house on the date of offence and all his
H belongings were forcibly taken away in the lorry at the
MOHAMMED ISHAQ V S KAZAM PASHA & ANR. 1101

+ instance of A-1. The testimony of PW-1 in this regard, the A
testimonies of PW-2, PW-7, PW-9, PW-10 and PW-13 which
were corroborated by the evidence of PW-11 and 12 clearly
established 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 B
entered the house of PW-1. The said evidence further
established 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. [Para 14] [1110-A-C] c
1.3. It was 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. It
is further proved beyond reasonable doubt that A-1 D
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. Accordingly, A-1 is liable
to be convicted under Sections 148, 392 and 452 IPC.
Consequently the order of sentence passed by the trial E
court is restored. [Paras 15, 16] [1110-C-E]
2.1. Simply because a remedy exists in the form of
Article 226 of the Constitution for filing a writ in the
A
concerned High Court, it would not prevent or place any
bar on an aggrieved person to directly approach the F
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 G
~ the Constitution. However, this rule which requires the
exhaustion of alternative remedies is a rule of con-
venience 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 H
1102 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Constitution. Therefore, the objection as to maintainability 1
of writ petition raised is rejected. After the judgment and
order dated 29.01.2007 of the High Court, A-1 surrendered
before the Sessions Judge on 16.04.2007. However, the
Government commuted six month rigorous imprisonment
B 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 was the case of the PW-1 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. [Paras
C 21, 22] [1111-D-E, G-H; 1112-A-B] •
2.2. 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
D General of Prison and Correctional Services, Hyderabad
stating that he was a qualified Islamic Scholar preaching
religious and communal harmony all over the country and •
was suffering from multiple medical ailments. The said DG
forwarded the representation to the State Government for
E necessary action. The State Government then called for
reports from the Commissioner of Police, the Collector and
the Regional Inspector of Probation. [Para 23] [1112-C-E]
2.3. The Commissioner of Police, in his report noted
that A-1 was suffering from a number of ailments. He A
F further opined that A-1 was not involved in any other case
other than the present one. He further stated in his report
that A-1 was a known Islamic scholar and a preacher of
communal harmony and was cooperating with the police
on several occasions for maintenance of peace in the city
G and that he did not have any political connections and
that there was no risk to law and order situation if his ~
sentence is commuted. The Collector, Hyderabad in his
report noted that A-1 had a traditional family background
and he was reportedly an active participant in the peace
H committee meetings and other programme relating to
MOHAMMED ISHAQ V. S. KAZAM PASHA & ANR. 1103
..

fostering of communal harmony and peace in locality. He A
t 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 B
incidents were 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
'i Section 433(c) Cr.P.C.[Para 24) [1112-E-H; 1113-A-B] c
2.4. 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. [Para 25) [1113-C]
D
Epuru Sudhakar & Anr. v. ·Government ofAndhra Pradesh
& Others, (2006) 8 SCC 161 - relied on .
..
2.5. There is no denial of the fact that while making
~
request for commutation of sentence, A-1 did not make
any reference to the effect that he was in fact absconding E
for about 4 months before his surrender. He was fugitive
to law for four months. The records clearly showed that
the High Court gave its decision on 29.01.2007, but A-1
surrendered before the Sessions Judge only on
16.04.2007. None of the reports took into consideration F
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. A-1 drew his salary
during the aforesaid period when he was absconding
which unmistakably shows his callous attitude towards
G
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
was completely ignored by the Government who without
any application of mind accepted the reports submitted
H
1104 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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 was
just reiteration of the identical reports submitted by
different government authorities without any independent
B scrutiny. It was stated that A-1 was suffering from multiple
medical ailments, but neither his petition for commutation
nor any report nor the order of commutation provided any
details with regard to what kind of medical ailment he is
suffering from. By simply making vague and bald
C statements, without having even an iota of indication with
regard to the actual disease or ailment is not sufficient to
justify the order of commutation. The order of commuta-
tion on the basis of these statements without ascertaining1
its genuineness/veracity showed that the impugned order
was passed without any application of mind. [Para 26]
0
[1114-G-H; 1115-A-F]
2.6. 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
E upon the appropriate Governme~t 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 th'~
purpose of law under which the conviction and sentence
F 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
G trust, coupled with a duty to exercise the same in the larger
public and social interest. In view of the 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. [Para 27-28] [1115-F-H; 1116-A-C]
H
MOHAMMED ISHAQ V. S. KAZAM PASHA & ANR. 1105

Case Law Reference A
(2006) a sec 161 relied on Para 25
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 937 of 2009
~ From the Judgment and Order dated 29.01.2007 passed_ 8
by the High Court of Andhra Pradesh at Hyderabad in Criminal
Appeal No. 1317 of1999
.... WITH

• Writ Petition (Crl.) No. 13 of 2008
Manoj George, Alex Joseph, Md. lrshad Hanif, Muzaffar
c

Ullah, for the Appellant. ·

A. Sharan, ASG, Sushi! Kumar, Anoop G. Chaudhary, D.
Bharathi Reddy, M. P.A. Shullari, Mushiaq Ahamad, Subhash D
Kaushik (for S.N. ·Terdal), with them for the Respondent.
The Judgment of the Court was delivered by
DR. MUKUNDAKAM SHARMA, J. ·-
E
SLP (Crl.) No. 3209/2008
1. Delay condoned.
2. Leave granted.
3. This appeal arises out of the judgment and order dated F
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 "1is
conviction for the offence under Sections 148, 392 and 452 of
the Indian Penal Code (for short 'IPC') and convicted him under G
Sections 147 and 451 IPC.
4. Factual matrix of the case is as follows:
Mohd. lshaq - PW-1 (the appellant herein) is a resident of
House No. 23-2-10, Khaja-Ka-Chilla, Moghalpura, Hyderabad H
1106 SUPREME COURT REPORTS [2009] 7 S.C.R.

A which is a sarfakhas property. His father, Mohd. Maqbool was r
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.
B 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 t "
C 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
0
employees of the said college whereas A-6 and A-7 are friends
of respondent (A-1).
5. It has been stated that A-1 to A-7 demanded that the
appellant would vacate the above-mentioned house. They tried
E to evict the appellant forcibly from the house but locality of the
people intervened and made their efforts futile. However, on ,...
10.06.1990 at7.00AM,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 ~ '
F 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
G 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
H
MOHAMMED ISHAQ V. S. KAZAM PASHA & ANR. 1107
[DR. MUKUNDAKAM SHARMA, J.]
(
.+ articles in a lorry bearing No. ABT 6596 and emptied the house. A
The efforts made by PW-1 to prevent A-1 to A-7 and their
' as-sociates 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 B
Police Station received the report and registered a case bearing
... Crime No. 69of1990 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 c
,<
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 D
ti is 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 Addi. Magistrate,
Hyderabad for issuance of search warrant. The learned Chief E
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 househo.ld
,...~
articles belonging to the appellant party which were produced F
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
G
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 H
1108 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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
B 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.
c 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
D 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/
E - 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.
F 9. Aggrieved by the said judgment and order of the trial
court,A-1 preferred an appeal in theAndhra 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
G 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
H of Rs. 1000/- in default to suffer simple imprisonment for three
MOHAMMED ISHAQ V. S. KAZAM PASHA & ANR. 1109
[DR. MUKUNDAKAM SHARMA, J.]

i months for the offence under Section 147 IPC and rigorous A
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.
10. Aggrieved by the said decision of the High Court, the
PW-1 (Mohd. lshaq) though not a party before the High Court, B
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 392-0f IPC_.
. "
c

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 D (

injury and the said part of evidence is supported by the wound
l certificate of P\l\f-9. Further, with regards to the gathering outside
the house of PW-1 is concerned, the evidence of PW-11 a_nd
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 E
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.
'!'-·'
13. It has been contended by the respondent that PW-1 F
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 G
\>- 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. H
1110 SUPREME COURT REPORTS [2009] 7 S.C.R

'
A 14. Another contention which has been advanced by the t
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-1 Oand PW-13 which
have been corroborated by the evidence of PW-11 and 12
B 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 ~
..
c assembly, which was armed with deadly weapons. The same
would clearly fall within the ambit of Section 141 and 148 IPC.
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
D fall within the ambit of Section 392 IPC.
16. It is further proved beyond reasonable doubt that A-1 ·I
I
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.
E
17. Accordingly, A-1 is liable to be convicted under
Section~ 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 j -4 •
.I
F 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
G
of the Constitution by the petitioner (Mohammed lshaq) who is 4
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.
H
MOHAMMED ISHAQ V S. KAZAl'vl PASHA & ANR. 1111
[DR. MUKUNDAKAM SHARMA, J.]

19. The petitioner has sought to invoke writ of certiorari to A
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 B
commutation is based on consideration of irrelevant materials
and non-consideration of relevant materials the same is liable
to be set aside.
f 20. Mr. Amarendra Sharan, Additional Solicitor General,
has strenuously contended that the petition is not maintainable C
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. D
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 to directly approach the E
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, F
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 G
\.· 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 H
1112 SUPREME COURT REPORTS (2009] 7 S.C.R.

A surrendered before the court of 1st Additional Metropolitan .f
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.
B 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.

23. Coming to the factual position of the case with regard ..
to the commutation, we have noticed that various materials were '"
C 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
D 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,
E 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
F noted thatA-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 h·as been
cooperating with the police on several occasions for
G 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 -.i
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
H committee meetings and other programme relating to fostering
MOHAMMED !SHAO V S. KAZAM PASHA & ANR. 1113
[DR. MUKUNDAKAM SHARMA, J.]

of communal harmony and peace in locality. He further stated A
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 B
.·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 c
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 D
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:

"34. The position, therefore, is undeniable that judicial E
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 F
of mind;

(b) that the order is mala fide;

(c) that the order has been passed on extraneous or
wholly irrelevant considerations;
G
(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 H
1114 SUPREME COURT REPORTS (2009] 7 S.C.R.

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
B 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 .
c 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
D
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
E "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 $ .
F 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
G
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, butA-1 surrendered before the Court of Additional
H
MOHAMMED ISHAQ V S. KAZAM PASHA & ANR 1115
[DR MUKUNDAKAM SHARMA, J.]

Metropolitan Sessions Judge only on 16.04.2007. None of the A
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 B
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 c
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
D
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 E
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. F
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
G
Cr.P.C., must be exercised in accordance with rules and
t-
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
H
1116 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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.
B 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
C 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.

D.G. Appeal allowed and writ petition partly allowed.