Basheer, J.

Can the High Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, issue a writ of mandamus to a criminal court not to execute the sentence imposed on an accused pending his application before the Government for commutation of sentence under Section 433 (d) of the Code of Criminal Procedure?

2. The learnedsingle Judge before whom the writ petition came up for consideration declined the above prayer. Nevertheless, the learned Judge directed the Government to consider the application submitted by the appellant for commutation expeditiously. The above order is under challenge in this writ appeal.

3. Relevant facts may be briefly noticed.

4. Appellant was tried for the offence punishable under Sections 279 and 338 of the Indian Penal Code. The trial court convicted and sentenced him to undergo simple imprisonment for 6 months and to pay a fine of Rs.1,000/- under Section 279 and to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/- under Section 338. The appellate court, while confirming the order of conviction, had reduced the sentence to 3 months simple imprisonment under section 279 IPC and to six months simple imprisonment under section 338 IPC. Ultimately in revision, this Court had reduced the substantive sentence under Section 338 IPC to simple imprisonment for 3 months. Thus the appellant faces the gloomy prospect of incarceration for 3 months since the sentences are to run concurrently.

5. Appellant had submitted Ext.P2 application before the Government under Section 433(d) of the Code of Criminal Procedure seeking to commute the sentence of simple imprisonment for fine. But in the meanwhile, it appears, the Judicial Magistrate of First Class, Thamarassery had initiated steps to execute the sentence against the appellant and a Non Bailable Warrant of arrest was issued. It was at this stage that the appellant had filed the writ petition with a sole prayer which is extracted hereunder:

"To issue a writ of mandamus or any other appropriate writ, order or direction directing the Judicial Magistrate of First Class-I, Thamarassery not to execute the warrant issued against the petitioner in C.No.666/1994 till the 2nd respondent takes a decision on Exhibit.P2 statutory petition filed by the petitioner U/S. 433(d) of the Cr.P.C."

6. Learned counsel for the appellant contends that the learned single Judge ought to have exercised the discretionary jurisdiction under Article 226 of the Constitution of India and stayed the execution of sentence of imprisonment, as otherwise the application submitted by the appellant before the Government would have become infructuous, if in the meanwhile appellant was arrested and sent to jail. It is further contended by the learned counsel that commutation of sentence as envisaged under Section 433 being a right statutorily recognised, it would be highly unjust and illegal if the said right is frustrated by bureaucratic delay. Since the process of consideration of the application at the appropriate level in the Government may consume some reasonable time, this Court under Article 226 can step in to ensure that there is no failure of justice. It is further contended that no prejudice is likely to be caused to any other individual or authority if execution of sentence is kept on hold for a short while, till the Government takes an appropriate decision in the matter.

7. The power to grant pardons, retrieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence is vested with the President of India and the Governor of a State, respectively under Articles 72 and 161 of the Constitution of India.

8. Section 432 of the Code of Criminal Procedure deals with the power of the appropriate Government to suspend or remit sentences without conditions or upon any condition. Section 433 of the Code empowers the appropriate Government to commute a sentence of