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2018 DIGILAW 897 (GAU)

Mukaddesh Ali v. State of Assam

2018-06-04

AJIT BORTHAKUR

body2018
ORDER : Ajit Borthakur, J. Heard Mr. SC Biswas, learned counsel for the petitioners and Ms. S Jahan, learned Additional Public Prosecutor, Assam. 2. This is an application under Sections 397/401 read with section 482 of the Cr.P.C., 1973 filed by the petitioners, namely, Mukaddesh Ali and Md. Ali Akbar, praying for setting aside and quashing the order dated 23.04.2018 passed by the learned Sessions Judge, Bongaigaon in Sessions Case No. 29(D)/1998 and thereby issued Non-Bailable Warrants of Arrest (NBWA) against the petitioners. The petitioners were convicted by the learned Sessions Judge, Bongaigaon in Sessions Case No. 29(D)/1998 and sentenced to undergo Rigorous Imprisonment for 6 (six) months each for the offence under Section 148 IPC, Rigorous Imprisonment for 3 (three) months each for the offence under Sections 323/149 IPC and Rigorous Imprisonment for 3 (three) years with fine of Rs. 1000/- each, in default, Rigorous Imprisonment for 15 (fifteen) days for the offence under Sections 436/149 IPC vide judgment and order dated 11.12.2002. 3. Against the said judgment and order of the learned Sessions Judge, Bongaigaon, the petitioners preferred appeal before this High Court and this Court by judgment and order, dated 19.02.2015, passed in Criminal Appeal No. 19/2003 upheld the conviction of the petitioners for the offences under Sections 148/149/323/436 IPC. Further, while maintaining the sentence of 6 (six) months and 3 (three) months respectively for the offences under Sections 148/149/323 IPC, this Court reduced the sentence of 3 (three) years imposed under Sections 436/149 IPC to a period of 6 (six) months. The said conviction and sentence was upheld by the Apex Court vide order, dated 24.07.2015, passed in Special Leave to Appeal (Crl.) No. 5218/2015. 4. Thereafter, the petitioners filed a mercy petition on 19.09.2015 to the Governor of Assam under Article 161 of the Constitution of India praying for commutation of the sentence imposed by the learned Sessions Judge in Sessions Case No. 29(D)/1998 and confirmed by this Court, and the said mercy petition dated 19.09.2015 was forwarded to the Commissioner & Secretary to the Government of Assam, Home & Political Department, Dispur, Guwahati on 03.02.2016, which is still pending consideration of the Government. 5. Mr. 5. Mr. SC Biswas, learned counsel for the petitioners submits that the petitioners have been waiting for the order of the Governor on their said mercy petition filed on 19.09.2015 under Article 161 of the Constitution, which was forwarded to the Government of Assam on 03.02.2016, but the same is yet to be disposed of by the Government of Assam. Mr. Biswas, submits that as the petitioners' valuable right is vested under Article 161 of the Constitution, without the process being exhausted in accordance with law, they cannot be compelled to serve out the sentence, passed by the learned Court below. Therefore, Mr. S C Biswas, vehemently submits that the Non-Bailable Warrants of Arrest issued against them may be stayed till disposal of their petition by the Governor of the State. 6. Ms. S Jahan, learned Additional Public Prosecutor appearing for the State respondent No. 1 submits that no right is vested in the petitioners to insist that execution of sentence imposed on them has to be kept in abeyance till the Government takes a decision on their mercy petition, as it is the exclusive jurisdiction of the executive of the State to exercise that power in the given facts and circumstances of each case. Ms. Jahan, learned Additional Public Prosecutor, Assam, therefore, submits that there should not be any delay in execution of the sentence passed by the Courts against the petitioners. In this regard, Ms. S Jahan has relied upon the judgment rendered by the High Court of Kerala in W.A. No. 1381/2008 (Moideen Koya, T. v. Secretary to Government and Ors.). 7. It is pertinent to mention herein that Article 161 of the Constitution of India confers on the Governor of the State, the right to grant pardons, remissions, retrieves or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. Exercise or non-exercise of power under Article 161 of the Constitution by the President or the Governor is, of course, not immune from judicial review for limited purposes only. 8. It may further be mentioned that in Sher Singh and Ors. Exercise or non-exercise of power under Article 161 of the Constitution by the President or the Governor is, of course, not immune from judicial review for limited purposes only. 8. It may further be mentioned that in Sher Singh and Ors. v. State of Punjab, reported in AIR (1983) SC 465, the Supreme Court observed that the Government of India and the State Government must dispose of the petition under sections 432 and 433 of the Cr.P.C., 1973 as well as petition under Articles 72 and 161 of the Constitution as expeditiously as possible and self imposed rule should be followed by the authorities rigorously that every such application shall be disposed of within the period of 3 (three) months from the date on which it is received. 9. In Epuru Sudhakar and Anr. v. Govt. of A.P. and Ors., reported in J.T. 2009 (9) SC 72, the Apex Court has held as under:- "Though, the power under Article 72 as also under Article 161 is of the widest amplitude and envisages myriad kinds and categories of cases with facts and situations varying from case to case, the exercise of power depends upon the facts and circumstances of each case and the necessity or justification for exercise of that power has to be judged from case to case." 10. A Division Bench of the Gujarat High Court in Triveniben v. State of Gujarat and Ors., reported in 1990 Crl. L.J. 273 had considered the question whether the High Court, in exercise of its power under Article 226 of the Constitution, could stay execution of the death sentence pending consideration of the application before the President of India under Article 72 of the Constitution. The Division Bench held that the jurisdiction of the Court in such matters is extremely limited. The Court could only consider whether there was undue delay in disposing of the mercy petition pending before the authority. The Court further went on to say that even inordinate delay by itself cannot render the execution of sentence unconstitutional. 11. In the instant petition, the petitioners' case rest on the prayer for stay of the execution of Non-Bailable Warrant of Arrest issued against them to compel their appearance to serve out the sentence passed by the learned Court below. 12. 11. In the instant petition, the petitioners' case rest on the prayer for stay of the execution of Non-Bailable Warrant of Arrest issued against them to compel their appearance to serve out the sentence passed by the learned Court below. 12. In the light of the ratio of the judgments referred to above, this Court finds that no indefeasible right is vested in the petitioners to insist for keeping in abeyance of execution of the sentence till the Government takes a decision on their mercy petition by way of staying the Non-Bailable Warrant of Arrest issued against them, because the exercise of power vested under Article 161 of the Constitution is a discretionary power, more so, when the petitioners have exhausted their remedies against the judgment and order of their conviction, passed by the learned Sessions Judge. Exercise of the discretionary power under the said Article of the constitution is exclusively in the province of the executive prerogative. 13. In view of the above, this criminal revision fails and accordingly, stands dismissed. 14. The petitioners are directed to surrender before the learned Court below to serve out the sentence on or before 29.06.2018. 15. A copy of this order be forwarded to the Commissioner & Secretary to the Govt. of Assam, Home and Political Department, Dispur, Guwahati-6 for information.