VERY IMPORTANT POINT
SLP under Article 136 against an appellate order under Section 37(2) of Arbitration and Conciliation Act, 1986 is not entertainable as an efficacious alternate remedy is available to the petitioner by way of filing a revision in the High Court under Section 115 CPC 1908

ORDER

This is a petition under Article 136 of the Constitution of India, seeking leave to file civil appeal against an appellate order of City Civil Court No. 11, Ahmedabad, passed under sub-section (2) of Section 37 of the Arbitration and Conciliation Act, 1996. We are not inclined to entertain this special leave petition inasmuch as, in our opinion, an efficacious alternate remedy is available to the petitioner by way of filing a revision in the High Court under Section 115 of the Code of Civil Procedure. Merely because a second appeal against an appellate order is barred by the provisions of sub-section (3) of Section 37, the remedy of revision does not cease to be available to the petitioner, for the City Civil Court deciding an appeal under sub-section (2) of Section 37 remains a Court subordinate to the High Court within the meaning of Section 115 of the CPC. In taking this view, we find support from a decision of this Court in Shyam Sunder Agarwal & Co. vs. Union of India (1996) 2 SCC 132.

2. The special leave petition is, therefore, dismissed. The petitioner may file a revision before the High Court and in calculating the limitation, the petitioner shall be entitled to exclusion of time spent in this Court, i.e., between the date of filing of the special leave petition and today.

(N.K.R.) SLP dismissed accordingly.

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ARTICLES

COURTS RECOURSE TO SECTION 433 CR.P.C.

FOR COMMUTATION OF SENTENCE

*P.R. Thakur

Section 433 of the Code of Criminal Procedure, 1973 (hereinafter called "the Code") provides as under:

"433. The appropriate Government may, without the consent of the person sentenced, commute-

(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;

(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;

(d) a sentence of simple imprisonment, for fine."

The plain reading of the aforesaid provision indicates that it is only an appropriate Government which has the power to commute sentences specified in Section 433 of the Code. This provision empowers an appropriate Government to exercise its powers of clemency. After a sentence has been awarded to a convict, a State Government is empowered under this provision to grant commutation and exercise its powers of mercy on considerations which may be, strictly speaking, extraneous to the judicial conscience as the administration of justice by the courts is not necessarily or certainly considerate of circumstances which may properly mitigate guilt. The necessity or the justification for exercising the power of commutation has to be judged from case to case as held by the Supreme Court (Y.V. Chandrachud, C.J., O. Chinnappa Reddy and A.P. Sen, JJ.) in Kuljit Singh @ Ranga v. Lt. Governor of Delhi [AIR 1982 SC 774]. Reference was made to what was said by Chief Justice Taft in James Shewan and Sons v. United States (1924) 69 Law Ed. 527 at p. 535, "the executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement in the Criminal Law". In another case, State of Punjab v. Kesar Singh [AIR 1996 SC 2512 = 1996 CLJ 3586], the Supreme Court (Dr. A.S. Anand and S.B. Majumdar, JJ.) held that the order passed by the High Court of Punjab & Haryana allowing the petition under Section 482 of the Code, directing the release of the convict after he had undergone about 8 years of sentence for the offence of murder, was not at all appropriate or permissible in law. The Supreme Court observed that the mandate of Section 433 of the Code enables the Government in an appropriate case to commute the sentence of a convict and to prematurely order his release before expiry of the sentence as imposed by the Courts. It was hel