Petitioner is a retired Superintendent of Police. Petitioner was convicted along with two other Police Constables for offence punishable under Sec.323 of the Indian Penal Code in a private complaint. The present writ petition is challenging rejection of the petitioner's application under Sec.433 of the Criminal Procedure Code, 1973 (for brevity, “the Code”) for commutation of the sentence passed in Crl.Appeal No.343 of 1997.
2. The criminal prosecution leading to the conviction and imposing sentence arise out of a compliant made by one Balachandran and his former wife Meena. The petitioner and other two accused were initially convicted by the Judicial First Class Magistrate-I, Attingal. In appeal, Sessions Court, Thiruvananthapuram acquitted the petitioner and other accused. Challenging the acquittal, Balachandran filed appeal before this Court in Crl.Appeal No.343 of 1997. This Court allowed the appeal by convicting the petitioner for offence under Sec.323 of the IPC. The petitioner and others were sentenced to undergo rigorous imprisonment for three months with fine of `1,000. The SLP moved by the petitioner was also dismissed.
3. The other accused moved the Government under Sec.432 of the Code for remission of sentence. The Government was pleased to grant remission to the other accused. On account of non-consideration of the application filed by the petitioner under Sec.432 of Code, petitioner approached this Court in W.P (C).No.13760 of 2007. This Court dismissed the writ petition for the reason that in order to invoke power under Sec.432 of the Code, the convicted person should be in jail. Thereafter, petitioner submitted an application for commutation of sentence under Sec.433 of Code. Based on the above, Ext.P1 order is passed declining exercise of power under Sec.433 of the Code. Petitioner thereafter filed Ext.P6 to review Ext.P1. Ext.P6 was dismissed as per Ext.P7.
4. Heard the learned Senior Counsel Sri.S.Gopakumaran Nair appearing for the petitioner and Sri.T.P.Sajid learned Senior Government Pleader appearing for the State. Learned Senior Counsel submits that de fact complainantMeena has no complaint against the petitioner. It is further submitted that Meena made a petition before the Government that she has no grievance against any of the accused. Therefore, it is submitted that offence under Sec.323 of the IPC is compoundable under Sec.320 of the Code.
Considering that petitioner has been convicted under Sec.323 of the IPC, Government ought to have adverted to composition while disposing application. Learned Senior Counsel also points out to the affidavit filed by the State before the Honourable Supreme Court in a challenge against the order of remission by the Government. It is stated in the above affidavit that, Meena had pardoned the accused and consented to grant remission without any condition and accused otherwise not involved in any offence while they were working as police officers. It is also stated that there were no bad remarks against the petitioner during service. Petitioner submits that other accused having granted remission under Sec.432 of the Code, petitioner is also entitled for remission of sentence under Sec.433 of the Code.
5. The power of commutation exclusively vest with appropriate Government. Appropriate Government under Sec.433 of the Code has to exercise the power reasonably after adverting to relevant factors. The petitioner's case is that offence is compoundable and de facto complainant has compounded the offence. No doubt, during pendency of the case before the trial court, if the offence was compounded, the case would have resulted in acquittal of the petitioner. Sec.433 of the Code confers power to the Government to commute the sentence without consent of the person sentenced. Sec.433A of the Code confers restriction on power of remission or commutation in certain cases on the Government. Sec.432 of the Code also laid down powers of the appropriate Government to suspend or remit sentence. The Division Bench of this in the judgment in W.A.No.1582 of 2010 held that the Government enjoys the power under Sec.432(1) of the Code to suspend the execution of sentence or remit the whole or any part of the punishment to which the accused has been sentenced. Learned Senior Counsel submits that the petitioner is prepared to move an application for suspension of his sentence and to file a remission under Sec.432 of the Code. Petitioner seeks liberty to approach the Government under Sec.432 notwithstanding Ext.P1 order in the light of the observation of the Division Bench. Considering the fact that Meena, one of the de facto complainant, has compounded the offence, permission is granted. Therefore following orders are passed:
Petitioner shall file an application to suspend his sentence before the Government under Sec.432 of the Code and also to consider the application for remission. Government shall consider the application for suspension initially and if satisfied with reason for suspension, consider the application for remission in terms of Sec.432 of the Code. Petitioner shall move the Government for suspension within a period of four weeks. Government shall consider the application for suspension within a further period of six weeks on receipt of the application. If the application for suspension is granted, the application for remission shall be processed and concluded within a further period of three months. Challenge against Ext.P1 order is left open.
The Writ Petition is disposed of.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE.
Sbna/15/01/15