ORAL JUDGMENT J. N. PATEL, J. :- The petitioner is the original complainant who has taken exception in the matter of commutation of sentence of simple imprisonment for one month to the payment of fine of Rs. 1000/- under section 433(d) of the Criminal Procedure Code, 1973 by the respondent State through its Home Department, Government of Maharashtra, Mantralaya, Mumbai in favour of respondent No.1 (Original accused). 2. The petitioner instituted a private complaint case against the respondent No. 1 (original accused) Suresh Shankar Ahire in the Court of Judicial Magistrate, First Class, Railway Court, Kalyan which came to be registered as Complaint (Summary) Case No. 3225 of 1993. In a nutshell, it was the case of the petitioner that the petitioner and respondent No. 1 at the relevant time were working in the Industrial Development Bank of India (IDBI) Tower, Cuffe Parade, Mumbai 400 005 and that their relations were not cordial. According to the petitioner, respondent No.1 is a person of troublesome nature. In the month of February, 1993, respondent No.1 had abused and tried to assault the petitioner in the train as well as outside the V.T. Station (C.S.T.). It is on 12-4-1993 that the petitioner and his wife were waiting at Thane Railway Station to board the train to go to V.T. Station and when the train arrived and the petitioner and his wife were in the process of boarding the train, respondent No. 1 along with his associates appeared at the spot and started beating the petitioner with fist blows because of which petitioner fell down on the platform and at that time respondent gave him kick blows and took out his belt and beat the petitioner with it. The petitioner's wife, who was about to board the Ladies compartment, on hearing the commotion saw respondent No. 1 and some unknown persons beating her husband. On noticing the same, she immediately rushed towards the spot of incident but could not save her husband from the grip of respondent No.1 and his associates. In the course of same transaction respondent No. 1 threatened the petitioner that he would throw him out of a running train and kill him and hurled filthy abuses. The incident continued about 2 to 5 minutes. In the course of same transaction respondent No. 1 threatened the petitioner that he would throw him out of a running train and kill him and hurled filthy abuses. The incident continued about 2 to 5 minutes. By that time, crowd gathered at the spot, and when the as saulters found that the petitioner is lying motionless they fled away from the scene of occurrence. One of the passengers helped the petitioner's wife in lifting her husband and they were put in the next train with the assistance of the co-passenger (Meghnath Mhatre P.W. No.5) who travelled upto to Ghatkopar Station along with them. 3. Due to assault, the petitioner sustained injuries on his cheeks and eyes, neck and back and suffered mentally and physically. On the next day, after coming out of shock, the petitioner reported the matter to Thane Railway Police and was referred to Civil Hospital for medical checkup and treatment but as the police registered a non-cognizable offence, he was advised to approach the Court by filing a complaint. It is the case of the petitioner that on 19-4-1993, he was again threatened by the respondent of dire consequences to withdraw the report filed by the petitioner. The petitioner lodged report about the threats given by respondent No. 1 at Thane Railway Police as well as Cuffe Parade Police Station. It is the case of the petitioner that the petitioner even informed their employer who did not take any cognizance of the matter nor any action was taken against respondent No. 1 for threatening the petitioner of dire consequences. It is in this context that the petitioner lodged a private complaint case being Summary Case No. 3225 of 1993 on 23-6-1993 against respondent No.1 and the trial Court issued process against respondent No. 1 for having committed offences punishable under sections 323, 504 and 506 of the Indian Penal Code. 4. In the course of the trial, the petitioner examined himself, his wife, one of the eye-witness to the incident, Mr. Meghnath Mhatre (P.W. No.5) and two medical officers who have medically examined the petitioner. Respondent No.1 pleaded not guilty and claimed to be tried and took the plea of total denial in his defence. He was found guilty of the charges by the trial Court. Meghnath Mhatre (P.W. No.5) and two medical officers who have medically examined the petitioner. Respondent No.1 pleaded not guilty and claimed to be tried and took the plea of total denial in his defence. He was found guilty of the charges by the trial Court. Respondent No.1 through his advocate pleaded that respondent No.1 is in service and has a family which is dependent on him and if he is punished and sentenced to suffer imprisonment, he may lose his job and, therefore, sought benefit under the provision of the Probation of Offenders Act. 5. The learned Trial Court held that the provisions of the Probation of Offenders Act cannot be applicable in the case of the petitioner as he was more than 21 years and is literate and can understand the importance of law and that his act attracts punishment and sentenced the petitioner by convicting him by judgment and order dt. 30-9-1996 under section 248(2) of the Criminal Procedure Code for the offence punishable under section 323 of the Indian Penal Code and sentenced him to suffer simple imprisonment for one month and to pay fine of Rs. 500/- (Rupees Five Hundred Only) in default to suffer simple imprisonment for three months and his bail bond came to be cancelled. 6. Aggrieved by the said decision, the respondent No.1 preferred Criminal Appeal No. 122 of 1996 before the Court of Sessions, Kalyan. It appears that during the pendency of the appeal, the respondent No. 1 forwarded a representation to the Chief Minister, Government of Maharashtra, Mantralaya, Mumbai and his case was recommended by Deputy Speaker, Vasant Davkhare vide his letter dt.29-1-1999 followed by the recommendation of one Suryakant Mahadik, Deputy Leader of Shiv Sena addressed to the Chief Minister. On receipt of the representation made by respondent No.1, the same was processed by the Home Department and a decision was taken by the Government of Maharashtra to commute the sentence of simple imprisonment for one month and a fine of Rs. 500 of respondent No.1, Suresh Shankar Ahire in exercise of the powers conferred by sub-section (d) of the section 433 of the Criminal Procedure Code, 1973 which is the subject-matter of challenge before this Court. 7. The petitioner argued his case in person. Respondent No. 1 was represented by his advocate and the learned Public Prosecutor appeared for the other respondents. 7. The petitioner argued his case in person. Respondent No. 1 was represented by his advocate and the learned Public Prosecutor appeared for the other respondents. The petitioner submitted that the State Government before taking a decision to commute the sentence failed to take into consideration the fact that the petitioner was required to prosecute respondent No. 1 with great difficulty and under the shadow of threat of dire consequences and suffered pressurising tactics from politicians and noted public figures in order to force the petitioner to withdraw the original criminal case. The respondent No. 1 also tried to spoil the career of the petitioner and was threatened through the Senior Officers of the IDBI. After he was convicted, the petitioner brought this to the notice of the higher officials of his bank, police and the Court. It is submitted by the petitioner that not only this, but when the appeal was called before the Court of Sessions, the Advocate for the respondent No.1 informed the Hon'ble Judge to await the Government Order/will see on next date and took adjournment and it is then that the petitioner learnt that the respondent has obtained the order of commutation of his sentence. On coming to know that the State Government has commuted the sentence of respondent No.1, the petitioner approached the State Government to reconsider the same which was turned down and therefore, it is the case of the petitioner that respondent No. 1 has managed to obtain the above order of commutation by using his political clout and that the impugned order is passed in an arbitrary manner with mala fide intention to protect respondent No. 1 ignoring the case of the petitioner who has been the victim of the incident. 8. It is the case of the petitioner that the impugned order commuting the sentence of respondent No. 1 is passed due to extraneous consideration and in abuse of powers vested in the State and the same deserves to be quashed and set aside. 9. On behalf of the respondent, it is submitted that the power to commute the sentence vests with the Government under section 433 of Criminal Procedure Code and no reasons need be given by the Government for entertaining such application and, therefore, the same cannot be questioned before this Court. 9. On behalf of the respondent, it is submitted that the power to commute the sentence vests with the Government under section 433 of Criminal Procedure Code and no reasons need be given by the Government for entertaining such application and, therefore, the same cannot be questioned before this Court. It is submitted that even if it is accepted that the said power to commute the sentence is subject to judicial review, the state has taken into consideration that the case of respondent No. 1 deserves to be considered in the background that if he is ultimately found guilty and convicted he may lose his job and his family would suffer undue hardship and, therefore, this was a fit case where the state was justified in commuting the sentence of petitioner and it does not call for any interference. 10. The learned Public Prosecutor submitted that the case of the petitioner was considered by the State Government in accordance with law and that the decision of the State Government cannot be considered to be arbitrary in nature or suffering from any mala fides and that it was after seeking opinion of the Home Department and Law and Judiciary Department that the State Government felt this to be a fit case to commute the sentence and, therefore, the petition deserves to be dismissed. 11. In the midst of hearing of this petition, contention was raised by the petitioner that the State has exercised his powers to commute the sentence at premature stage though the appeal filed by respondent No.1 was pending before the Court of Sessions and secondly, that there is no reason given while passing the impugned order which would show that in spite of the fact that the trial Court found that the petitioner was not entitled to the benefit of the Probation of Offenders Act, his case was considered for commutation of sentence. On this issue, the learned P.P. made a statement before this Court that the State Government will re-examine the matter and, therefore, it came to be adjourned. On re-examination of the matter, the State Government came to a decision that it will not be possible to withdraw the said order as at the time of commutation of sentence, no reasons have been recorded as to why the sentence of imprisonment has been converted into one of fine. 12. On re-examination of the matter, the State Government came to a decision that it will not be possible to withdraw the said order as at the time of commutation of sentence, no reasons have been recorded as to why the sentence of imprisonment has been converted into one of fine. 12. In order to satisfy ourselves, we requested the learned P.P. to place before us the records and proceedings which led to the passing of the impugned order. In our view, the key issue which arises for our determination is whether this Court can in exercise of power of judicial review, examine the decision taken by the State in exercise of his powers vested under sections 432 and 433 of the Criminal Procedure Code. If yes, whether the power to commute the sentence has been exercised to prevent injustice to the respondent No. 1 who has been convicted and that it has not been obtained by fraud or granted by mistake for improper reasons and has been granted for extraneous consideration. 13. The issue is now well settled in the recent decision of the Supreme Court rendered in the case of Epuru Sudhakar and Anr. vs. Govt. of A.P. and Ors. in Writ Petition (Cri) No. 284-285 of 2005 decided on 11-10-2006. The Supreme Court while deciding the aforesaid case has taken into consideration various decisions starting from Maru Ram vs. Union of India and Others, 1981(1) SCC 107 onwards and also considered exercise of such powers in criminal justice system prevalent in the developed countries. 14. The Supreme Court also dwelt upon exercise of powers of judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be and held that 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. 15. 15. It also observed that there are two important aspects which are to be kept in mind while exercising powers under Article 72 or Article 161 so also under sections 432 and 433 of the Criminal Procedure Code i.e. one relating to the desirability of indicating reasons in the order granting pardon/remission while the other was an equally more important question relating to the power to withdraw the order of granting pardon/remission, if subsequently, materials are placed to show that certain relevant materials were not considered or certain materials of extensive value were kept out of consideration and it also observed that according to the learned Amicus Curiae, reasons are to be indicated in the absence of which the exercise of judicial review will be affected. 16. In a separate but concurrent judgment in the said case, his Lordship S. H. Kapadia, J made the following observation: "Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an Executive action that mitigates or set aside the punishment for a crime. It eliminates the effect of conviction without addressing the defendants 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 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. 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 the 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. 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." 17 . We have given our anxious consideration to the facts of the case in the light of the decision rendered by the Supreme Court in Epuru Sudhakar and Anr. and what we find from the record and proceedings placed before us by the State Government is that it has failed to record any reasons which would go to indicate that the State has acted fairly and in larger public interest. Secondly, what we find as held by the Supreme Court in the decision rendered by Ashok Kumar vs. Union of India and Ors., 1991 CriLJ. 2483 is that in spite of the appeal being pending, the respondent State proceeded to exercise its powers which in our view was at a pre mature stage as the appeal is continuation of the case and the State Government could not act under sections 432 and 433 of Criminal Procedure Code as the subject-matter was sub-judice before the Appellate Court. Generally speaking power of execution, suspension, remission and commutation of sentence is post-judicial i.e. after the judicial proceeding has come to an end. In para 8 of the reported judgment in Ashok Kumar's case it was observed by the Apex Court as under: "8. The law governing suspension, remission and commutation of sentence is both statutory and constitutional. The stage for the exercise of this power generally speaking is post-judicial i.e. after the judicial process has come to an end. The duty to judge and to award the appropriate punishment to the guilty is a judicial function which culminates by a judgment pronounced in accordance with law. After the judicial function thus ends the executive function of giving effect to judicial verdict commences." 18. The duty to judge and to award the appropriate punishment to the guilty is a judicial function which culminates by a judgment pronounced in accordance with law. After the judicial function thus ends the executive function of giving effect to judicial verdict commences." 18. In the case of Delhi Administration (Now NCT of Delhi) vs. Manohar Lal, (2002) 7 SCC 222 , the Hon'ble Supreme Court has put a word of caution to be followed in exercise of powers under section 432/433 of Criminal Procedure Code which is spelt out in para 7 of the reported judgment as under: "7. We are also of the view that even the appropriate Government may not, as a matter of routine course, indulge in exercise of such powers at its sweet will, pleasure and whim or fancy. As observed earlier, the powers conferred upon the appropriate Government under section 433, Criminal Procedure Code, have to be exercised in accordance with rules and established principles - 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, commiserative facts necessitating the commutation, and the interests of the society and public interest. 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 societal interest, too. When the legislature concerned has chosen to mandate for the imposition of a minimum sentence in a given situation, the responsibility of the appropriate Government becomes all the more greater and power under section 433, Criminal Procedure Code may have to be exercised with great circumspection. Otherwise, the legislative will might become a mere dead letter at the whim of the executive." 19. The State Government' itself has accepted before this Court that as no reasons for commuting the sentence have been recorded in the case of respondent No.1, it cannot withdraw the said order. Otherwise, the legislative will might become a mere dead letter at the whim of the executive." 19. The State Government' itself has accepted before this Court that as no reasons for commuting the sentence have been recorded in the case of respondent No.1, it cannot withdraw the said order. On going through the record and proceedings what we find is that the decision taken by the State Government to commute the sentence of the respondent No.1 came to be taken under political influence as his case was strongly recommended by the then Deputy Chairman of the Maharashtra Legislative Council and Deputy Leader of Shiv Sena by ignoring the effect of the decision on the petitioner and his family members who were the victims of the incident and required to seek redressal in the Court of law by lodging a complaint case and by ignoring his right to compensate for the injury suffered by him and as no reasons have been given to commute the sentence of respondent No.1, it vitiates the very order as it does not indicate that the power to commute sentence was exercised in larger public and social interest nor it is in the interest of justice. Therefore, we are inclined to allow the petition. 20. The impugned order dated 8th December, 1999 passed by the respondent-State is quashed and set aside. Criminal Appeal No. 122 of 1996 pending in the Court of Sessions at Kalyan filed/pending will stand revived and the appellate Court would proceed in the matter in accordance with law. 21. Rule is made absolute in aforesaid terms with costs. Order accordingly.