Kerala High Court
David Lally vs Georgekutty on 10 December, 2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 21ST DAY OF DECEMBER 2016/30TH AGRAHAYANA, 1938
WA.NO. 1267 OF 2016 () IN WP(C).9626/2015
-------------------------------------------
AGAINST THE JUDGMENT IN WP(C) 9626/2015
OF HIGH COURT OF KERALA DATED 10-12-2015
APPELLANT(S)/2ND RESPONDENT:
---------------------------
DAVID LALLY
AGED 53 YEARS, S/O DAVID,
CHERUVILA VEEDU, MALAYAM P.O.
THIRUVANANTHAPURAM
NOW AT AF2-71 6TH BLOCK,
VASANTH NAGAR, KALOOR, KOCHI- 6821 017
BY ADVS.SRI.V.V.NANDAGOPAL NAMBIAR
SRI.K.GOPALAKRISHNA KURUP (SR.)
RESPONDENT(S)/PETITIONER & IST RESPONDENT IN WPC:
------------------------------------------------
1. GEORGEKUTTY
AGED 46 YEARS, S/O YOHANNAN,
AG HOUSE, KURICHILUVILA, MALAYALAM P.O.,
THIRUVANANTHAPURAM - 695 571
2. STATE OF KERALA
REP. BY PRINCIPAL SECRETARY TO GOVERNMENT
HOME AND VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001
R1 BY ADV. SRI.M.REVIKRISHNAN
R2 BY ADV. DIRECTOR GENERAL OF PROSECUTION
BY SENIOR GOVERNMENT PLEADER SHRI M.A. ASIF
R BY SRI.M.REVIKRISHNAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
01.12.2016 ALONG WITH W.A. 2171/2016, W.A. 2254/2016, THE
COURT ON 21.12.2016 DELIVERED THE FOLLOWING:
MOHAN M.SHANTANAGOUDAR, C.J.
&
SATHISH NINAN, J.
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W.A. Nos.1267, 2171 & 2254 of 2016
===================================
Dated this the 21st day of December, 2016
J U D G M E N T
SATHISH NINAN, J.
These Writ Appeals arise from the common judgment dated 10.12.2015 in W.P(C) Nos.9626, 25001 and 7468 of 2015 whereby Ext.P6 Government Order dated 09.06.2014 as corrected in order dated 12.11.2014, granting commutation of sentence under Section 433 of the Code of Criminal Procedure (for short, "the CrPC") by the Government, was interfered with by the learned single Judge. The accused is the appellant in the Writ Appeals.
2. The de facto complainant-injured is the petitioner in W.P(C) No.9626 of 2015. The other Writ Petitions are filed by persons interested. W.A. Nos.1267, 2171 & 2254 of 2016 -: 2 :- Parties and documents are referred to with reference to W.P(C) No.9626 of 2015.
3. The necessary facts leading to the Writ Petitions are:
C.C. No.130 of 1988 of the Judicial First Class Magistrate was registered against the accused for offence punishable under Section 326 of the Indian Penal Code, viz., assault. The injuries caused are:
"(1) Contused lacerate wound complete split of upper lip 3 c.m. X 1 c.m. Lip partially opened due to injury.
(2) Contual incisor tooth partially broken loss lateral (left) incirsor and canine teeth (upper)."
After trial, as per Ext.P1 judgment, the accused was found guilty and was sentenced to undergo rigorous imprisonment for 2 years and fine of Rs.1,000/- with a default sentence of rigorous imprisonment for three months. Accused filed Crl. Appeal No.43 of 1990 before the Sessions Court, Thiruvananthapuram which came to be dismissed as per Ext.P2 judgment W.A. Nos.1267, 2171 & 2254 of 2016 -: 3 :- dated 02.02.1991. The same was challenged before this Court in Crl. R.P. No.821 of 1991. This Court confirmed the conviction and the substantive sentence of rigorous imprisonment for 2 years. However, the sentence of fine and default sentence were set aside. Thereafter, the accused filed SLP (Crl.) No.10048 of 2011 before the Apex Court and the same was dismissed. The accused filed R.P (Crl.) No.353 of 2012 in SLP(Crl.) No.10048 of 2011 which was also dismissed as per Ext.P4 order dated 04.10.2012. Thereafter, on 01.07.2013 the accused invoking powers of the Government under Section 433 CrPC made Ext.P5 application seeking commutation of sentence. The Government, in exercise of the powers under Section 433 CrPC, as per Ext.P6 order, ordered commutation of sentence of rigorous imprisonment for two years into fine of Rs.1,00,000/-. The said order was challenged before the learned single Judge. The W.A. Nos.1267, 2171 & 2254 of 2016 -: 4 :- challenge was upheld and the order of commutation of sentence was interfered with. Aggrieved by the same, these Writ Appeals are filed by the accused.
4. Heard Shri. Gopalakrishna Kurup, learned Senior Counsel appearing for the accused and Shri M.Revikrishnan, learned counsel appearing for the 1st respondent.
5. Learned Senior Counsel appearing for the accused would argue that the learned single Judge had disregarded the consistent view expressed by the Apex Court in Maru Ram v. Union of India ([1981] 1 SCC 107) and Kehar Singh and Another v. Union of Indian and Another ([1989[1] SCC 204) wherein it was held that unless the exercise of power by the Governor is ex facie perverse or is based on a rule of thumb, Court should not interfere for mere non disclosure of the reason for commutation of sentence. According to the learned Senior Counsel, W.A. Nos.1267, 2171 & 2254 of 2016 -: 5 :- the learned Single Judge has overstepped his jurisdiction in interfering with the order of commutation passed by the Government in exercise of the powers under Section 433 CrPC. Learned Senior Counsel would contend that power of judicial review in such cases is very limited. The Court is not entitled to look into each and every minute details and reasonings based on which the order of commutation was passed by the Government.
6. On the other hand, learned counsel appearing on behalf of the de facto complainant would contend that materials on record reveal that the exercise of powers by the Government was ex facie arbitrary in so far as the recommendation and summary of notes and discussions relating to commutation of sentence at hand was against the accused and the Government without any rhyme or reason has arbitrarily passed an order of W.A. Nos.1267, 2171 & 2254 of 2016 -: 6 :- commutation. Learned counsel further contended that the recommendation for commutation has been made not by the Government but was made by the Chief Minister which is against the provisions of Section 433 CrPC. Both sides have referred to a series of decisions touching the scope of power of judicial review in matters under Section 433 CrPC.
7. Exhibit P15 produced in the Writ Petition is the notes of the Home Department with regard to the request made by the accused for commutation of sentence. It is seen from the said record that the details of the case, finding of guilt, sentence, the appeals and judgments thereon etc., have been referred to therein. A report about the family background, the economic status of the accused, etc., have also been called for from the District Police Chief. The accused was also examined by the Medical Board. Report of the Medical Board is to the W.A. Nos.1267, 2171 & 2254 of 2016 -: 7 :- following effect:
"He is suffering from Type 2 DM Coronary Artery Diseases FC11 efforts angina and sick sinus syndrome. He is advised to avoid all strenuous activities and to have regular cardiac medications and cardiac evaluation and periodic follow up at Department of Cardiology, MCH, Thiruvananthapuram. The Medical report shows that all these disease are common to a man of this age."
Exhibit P5 dated 01.07.2013 is the copy of the representation made by the accused before the Government under Section 433 CrPC. Paragraph 6 of the said representation narrates the reason which compelled the accused in making the said request, which reads as follows:
"Now the petitioner is aged 52 years and suffering from chronic diabetics, cardiac and neurotic problems. The incident happened 26 years back and if the petitioner is asked to surrender for an incident that happened 26 years back, considering the health conditions of the petitioner he cannot withstand the detention at this stage and if he is detained, his life will be at danger taking into account his disease that he suffer."
As is seen therefrom, mainly two grounds are urged W.A. Nos.1267, 2171 & 2254 of 2016 -: 8 :- by the accused; one is health condition and the other, long lapse of time since occurrence of the incident. From Exts.P15 series of records relating to commutation of sentence, it is seen that the opinion of the concerned Secretary to Government, Home Department was totally unfavourable to the accused. It would be relevant to refer to paragraphs 50 to 52 of the said notes:
"50. There is no precedent in this regarding granting commutation of sentence for a person of such crimes and for a long period. The accused was sentenced under Section 326 IPC causing grievous hurt to another human being. In the application he has furnished that he was residing at Cochin and District Police Chief, Thiruvananthapuram furnished report from the Village Officer, Vilavoorkkal, Thiruvananthapuram. In this report also the family background is vague. In the medical report, it is mentioned that:
"He is suffering from Type 2 DM Coronary Artery Diseases FC11 efforts angina and sick sinus syndrome. He is advised to avoid all strenuous activities and to have regular cardiac medications and cardiac evaluation and periodic follow up at Department W.A. Nos.1267, 2171 & 2254 of 2016 -: 9 :- of Cardiology, MCH, Thiruvananthapuram."
The Medical report shows that all these disease are common to a man of this age.
51. It is to be noted that the Medical Board did not report that the life of the applicant is in danger if he is lodged in prison. Medical assistance readily available in prisons and higher medical assistance is also available to all prisoners from Medical College Hospital, Thiruvananthapuram and a large number of persons treated in medical College Hospital for Heart diseases in Prison and he can do all his daily needs by his own. He did not show any will to surrender before the Court of Law till date. It will give a wrong message to the society if he is free of from the sentence imposed by the Court after paying money.
52. Considering all these factors there is no special circumstance warranting an intervention with the judicial process and the request may be declined. He may be directed to surrender before the Court of law first and after that his application for remission may be looked into if he submits the same. Vide orders on P.265 c.f file may be circulated to Hon'ble Chief Minister through Minister, Home and Vigilance."
It was taken note of by the Secretary that the report regarding family background is vague and that going by the report of the Medical Board, it could not be concluded that the life of the accused would W.A. Nos.1267, 2171 & 2254 of 2016 -: 10 :- be in danger if he is detained in prison. It was further taken note of that the accused did not show any will to surrender before the court of law and that commutation and freeing him from the sentence imposed by the court, after paying money, would be conveying a wrong message to the Society. It was further noted that there is no such circumstance warranting interference with judicial process. It is seen from the subsequent proceedings that in spite of the said recommendations made on evaluation of all the materials, it was decided to commute the sentence by payment of a fine of Rs.1,00,000/-. Therefore, as is revealed from Ext.P15, the reasons given by the accused in Ext.P5 application for commutation of sentence was essentially concluded against the appellant. However, for reasons best known to the concerned authority, it was decided to commute the sentence. A perusal of Ext.P15 would W.A. Nos.1267, 2171 & 2254 of 2016 -: 11 :- show not only total absence of any material for exercise of the power of commutation, but also that the recommendations on evaluation of the materials available, was against commutation of the sentence. It is in the said background that submissions of the learned counsel for the de facto complainant is to be appreciated.
8. Learned counsel for the complainant would contend based on the decision reported in Balachandran G. v. C.S. Ramachandran (2016 [2] KLD
29), with specific reference to paragraph 8, that Ext.P5 request for commutation has not been placed before the Cabinet. The decision to commute sentence has not been taken in the Cabinet or in consultation with the Cabinet, which is mandatory under Section 433 CrPC. According to him, since Ext.P5 was not placed before the Cabinet, the very order of commutation is without any jurisdiction. He further W.A. Nos.1267, 2171 & 2254 of 2016 -: 12 :- referred to the said judgment and argued that it has been held therein that the procedure in the rules of business providing for circulation of files to the Governor without aid and advice of the Council of Ministers is unconstitutional; therefore Exhibit P6 order is bad in law.
9. Per contra, the Learned Senior Counsel appearing for the accused drew our attention to various provisions of the Rules of Business of the Government of Kerala (hereinafter referred to as "the Rules") formulated in exercise of the powers conferred by clauses (2) and (3) of Article 166 of the Constitution of India. It would be apposite to refer to the relevant Rules:
"34.(1) The following classes of cases shall be submitted to the Chief Minister before the issue of orders:-
(i) Proposals for the grant of pardons, reprieves, respites or remissions of punishment or the suspension remission or commutation of a sentence in pursuance of Article 161 of the Constitution, or for the suspension or W.A. Nos.1267, 2171 & 2254 of 2016 -: 13 :- remission of a sentence under Section 432 or commutation of sentence under Section 433 of he Code of Criminal Procedure.
(2) The following classes of cases shall be submitted by the Chief Minister to the Governor before the issue of Orders:-
(i) Proposals for the grant of pardons, reprieves, respites or remissions of punishment or the suspension, remission or commutation of a sentence in pursuance of Article 161 of the Constitution or for the suspension or remission of a sentence under Section 432 or commutation of a sentence under Section 433 of the Code of Criminal Procedure, 1973."
Rule 5 of the said Rules provides for allotment of business of the Government among the Ministers by the Governor, on the advice of the Chief Minister. Rule 7 of the said Rules provides for collective responsibility of the Council of Ministers for all executive orders issued in the name of the Governor as to such orders authorised by an individual Minister on a matter appertaining to his portfolio or as a result of discussion at a meeting of the Council or otherwise. As per Rule 8, all cases W.A. Nos.1267, 2171 & 2254 of 2016 -: 14 :- referred to in the second Schedule shall be brought before the Council. Rule 11 provides that all orders or instruments made on behalf of the Government shall be in the name of the Government. Rule 34(1) provides that proposals for the grant of commutation of sentence under Section 433 CrPC shall be submitted to the Chief Minister, and Rule 34(2) provides that the same shall be submitted by the Chief Minister to the Governor. Relying on the said Rules, it is contended that the rules of business of the Government provide that the Chief Minister is to deal with the proposals for commutation of sentence under Section 433 CrPC and the Chief Minister is to forward the recommendation to the Governor. The same has been adhered to in the instant case. According to him, the contention that the Government has not exercised its powers under Section 433 CrPC and has acted solely on the recommendation of the Chief W.A. Nos.1267, 2171 & 2254 of 2016 -: 15 :- Minister and hence the order of commutation is without authority, cannot be sustained.
10. In A.Sanjeevi v. State of Madras (AIR 1970 SC 1102), six Judge Bench of the Apex Court has held that under the Indian Constitution, Governor is essentially the constitutional head, and the administration of State is run by the Council of Ministers. It is not possible for the Council of Ministers to deal with each and every matter that comes before the Government. It is to obviate that difficulty that the Governor is authorised under Article 166(3) to make rules for the convenient transaction of business of the Government of the State and for the allocation of business amongst its Ministers. The Cabinet is responsible for every action of the Ministers and that is the essence of the joint responsibility. Each and every decision need not be taken by the Cabinet. An individual W.A. Nos.1267, 2171 & 2254 of 2016 -: 16 :- Minister is responsible to the Cabinet for every action taken or omitted to be taken in his Ministry. It is a political responsibility and not personal responsibility. The Apex Court has observed that "even the most hard working Minister cannot attend to every business in his department. If he attempts to do it, he is bound to make a mess of his department". The Apex Court has also observed that "the opinion must necessarily be formed by somebody to whom, under the rules of business, the conduct of the business is entrusted and that opinion, in law, will be the opinion of the State Government." Learned Senior Counsel for the accused was banking upon the said judgment to canvass upon the importance of the Rules of business of the Government under Article 166(3) of the Constitution of India. Referring to Samsher Sing v. State of Punjab (AIR 1974 SC 2192), the learned Senior W.A. Nos.1267, 2171 & 2254 of 2016 -: 17 :- Counsel was re-enforcing his contention on the above lines. That was a judgment by the Seven Judge Bench of the Apex Court. He would argue that on the face of the said judgments recognising the due importance of the rules of business framed under Article 166(3) of the Constitution, the mere observation in Balachandran G. v. C.S. Ramachandran Nair (2016[3] KHC 465) would not be of any consequence regarding the constitutionality of the rules of business relating to circulating the files concerning Sec.433 CrPC. In the view that we are taking in the matter, it may not be necessary for us to delve into the said issue.
11. As regards non-disclosure of reasons for commutation, in Ram Deo Chauhan v. Bani Kanta Das ([2010] 14 SCC 209), the Apex Court has reiterated the law on the point that mere non-disclosure of reasons shall not be a ground to interfere with the W.A. Nos.1267, 2171 & 2254 of 2016 -: 18 :- orders passed with the power of clemency under Article 161 of the Constitution of India. In the said judgment, the Apex Court has considered in detail as to whether non-disclosure of reasons vitiates the order of the Governor under Article 161 of the Constitution of India. The Apex Court held that unless the exercise of power by the Governor is exfacie perverse or is based on a rule of thumb, the Court should not interfere for mere non- disclosure of reasons.
12. Referring to the judgment in Ashok Kumar v. Union of India (AIR 1991 SC 1792), it is contended that executive function of giving effect to the judicial verdict commences on termination of the judicial function. The stage for exercise of commutation of sentence is post judicial, i.e., after the judicial process has come to an end. Government is within its power under Section 433 W.A. Nos.1267, 2171 & 2254 of 2016 -: 19 :- CrPC to commute the sentence. Referring to Bikas Chagtterjee v. Union of India and Others ([2004] 7 SCC 634) it is contended that as is well settled by the Apex Court, the scope of interference with the order of commutation is very limited. In the said judgment the Apex Court observed thus:
"Although the decision of the President of India on a petition under Article 72 of the Constitution is open to judicial review but the grounds therefor are very very limited. In Maru Ram v. Union of India, (1981) 1 SCC 107, the Supreme Court held that it is only a case of no consideration or consideration based on wholly irrelevant grounds or an irrational, discriminatory or male fide decision of the President which can provide ground for judicial review. In Satpal v. State of Haryana, (2000) 5 SCC 170, these very grounds have been restated as: (I) the Governor exercising the power under Article 161 himself without being advised by the Government; or (ii) the Governor transgressing his jurisdiction; or (iii) the Governor passing the order without application of mind; or (iv) the Governor's decision is based on some extraneous consideration; or (v) mala fides. In Maru Ram case, it was also held that while exercising the power of judicial review, the Court shall keep in mind that where a power is vested in a very high authority, it must be presumed that the said authority would W.A. Nos.1267, 2171 & 2254 of 2016 -: 20 :- act properly and carefully after an objective consideration of all the aspects of the matter and further, the higher the power the more cautious would be its exercise."
Referring to State of Gujrat and Another v. Lal Singh ([2016] 8 SCC 370) it is contended that all that the Court is expected to look into is only to the issue as to whether there has been due consideration of the case by the Government.
13. Learned counsel for the complainant referring to the decision reported in Mohammed Ishaq v. S.Kazam Pasha and Another ([2009] 12 SCC
748) would contend that in cases where there is total non-application of mind, insufficient evidence and non-specific grounds, the only conclusion that could be reached is that there has not been a conscious exercise of the powers under Section 433 CrPC by the Government and in such cases, the order of commutation is liable to be interfered by the Court. The Apex Court observed thus:
W.A. Nos.1267, 2171 & 2254 of 2016 -: 21 :- "The powers conferred upon the appropriate Government under Section 433 CrPC, must be exercised in accordance with the rules and established principles. Such power must be viewed as a trust, coupled with a duty to exercise the same in the larger public and social interest. While exercising such power, relevant facts, reasons and purpose of law necessitating the commutation must be reflected and well established. Government must not as a matter of routine, indulge in exercise of such powers at its sweet will, pleasure and whim or fancy."
Learned counsel referring to Life Convict Laxman Naskar v. State of W.B. & Another (AIR 2000 SC 2762), contended that in cases where Court finds that reasons given by the Government are palpably irrelevant or devoid of substance, the same is liable to be interfered with.
14. In the instant case as is evident from Ext.P15 file relating to the order of commutation of sentence, the very recommendation by the concerned Secretary was against commutation. Of course, the Secretary, Law Department opined that there is no W.A. Nos.1267, 2171 & 2254 of 2016 -: 22 :- illegality in commuting the sentence. The fact remains that on the basis of the reports including report on family backgrounds, medical reports, etc., opinion of the Secretary was that there is no special circumstance warranting intervention. Thereafter, without stating any reason or even suggestion of any reason, commutation of sentence has been ordered. The said order squarely falls within the limited grounds as enumerated by the Apex Court. Under such circumstances, it cannot be said to be immune from the purview of judicial review.
15. The accused was absconding and managed to be scot-free for a long period of 26 years. He did not surrender to the process of law. He was fugitive to law for 26 years. Executive clemency cannot be extended to a citizen who managed to scoff the process of Court. It would amount to making a mockery of the very rule of law.
W.A. Nos.1267, 2171 & 2254 of 2016 -: 23 :-
16. In the circumstances, we are in perfect agreement with the view taken by the learned single Judge in interfering with the order of commutation of sentence.
In the result, the Writ Appeals fail and are accordingly dismissed.
MOHAN M.SHANTANAGOUDAR, CHIEF JUSTICE.
SATHISH NINAN, JUDGE.
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