- (1.) AMITAVA Lala, J. Since both the aforesaid writ petition are identically placed and connected and have been heard together, the same are being decided by this common judgment having binding effect upon both the matters.
(2.) THESE writ petitions are made challenging the order passed by the Special Secretary, Chikitsa Anubhag-8, Secretariate, U. P. , Lucknow on 31st December, 2004 refusing to commute the sentence by exercising power under Section 433 (d) of the Code of Criminal Procedure (hereinafter called as 'cr. P. C. ') as per the recommendation made by the High Court vide order dated 28th April, 2004 in the revisional jurisdiction under Section 397/401 Cr. P. C. i. e. Criminal Revision No. 763 of 1985, Rejendra Prasad v. State of U. P. and Criminal Revision No. 764 of 1985, Radhey Shyam v. State of U. P. alongwith other matter being Criminal Revision No. 762 of 1985, Lajja Ram alias Lila Ram v. State of U. P. However, so far as the Criminal Revision No. 762 of 1985 in connection with Lajja Ram alias Lila Ram is concerned, the same is not before us. Therefore, our consideration of the cause is only restricted to the others i. e. Rajendra Prasad and Radhey Shyam respectively in Criminal Revision No. 763 of 1985 and Criminal Revision No. 764 of 1985. So far as the other prayer is concerned, the same is in respect of release of the additional fine of Rs. 5,000/-, which has already been deposited by the petitioners in pursuance of the direction given by the Court in the aforesaid order dated 28th April, 2004. From the order dated 28th April, 2004 as passed by the learned Single Judge in connection with the revisions under Section 397/401, Cr. P. C. , we find that in the case of food adulteration learned Court below scaled down the period of sentence of six months to three months simple imprisonment upon imposing fine of Rs. 2,000/ -. The High Court in the aforesaid order has imposed additional fine with a direction upon the revisionists to approach the State Government under Section 433 (d), Cr. P. C. for commutation of simple imprisonment for the aforesaid period to fine. The recommendation of the learned Single Judge in the revision application is as follows : "i, therefore, recommend the State Government to release the applicant revisionists by taking into account the deposit of additional fine of Rs. 5,000/- from each of the accused and that an appropriate order be passed by the State Government to that effect within a period of three months. The applicant revisionists shall deposit in the trial Court under two heads the fine imposed by the Court i. e. Rs. 2,000/- each as also additional fine of Rs. 5,000/- each within a period of four weeks from today and apprise the State Government of having discharged their obligation. On doing so the applicant revisionists need not be arrested. Revisions are disposed of accordingly. " The cause of action of the petitioner is that the State received the additional fine of Rs. 5,000/- but refused to convert the simple imprisonment to fine without assigning any reason. In the order impugned the appropriate Government expressed view that it would not be appropriate to convert the simple imprisonment to fine.
(3.) THE word "may" has been specifically incorporated under Section 433 for the appropriate Government to commute sentence. We are well aware by the interpretation of law that "may" includes "may not". THErefore, one part is crystal clear that appropriate Government cannot be compelled to pass a favourable order. Hence, no enforceable legal right can arise for the purpose of invocation of writ jurisdiction. THE petitioner is fortified with three judgments of the Supreme Court reported in 1995 Supp (4) SCC 682, Badri Prasad v. State of M. P. , 1997 (9) SCC 101; N. Sukumaran Nair v. Food Inspector, Mavelikara and 2000 (9) SCC 151, Santosh Kumar v. Municipal Corporation and Anr. But all the three matters arose out of criminal appeals. Yet the parties were directed to approach the State Government under Clause (d) of Section 433, Cr. P. C. No such judgments say that if after recommendation the appropriate Government refuses to pass a favourable order, a valuable legally enforceable right can arise to approach the writ Court. In other words, no such judgments deal with post scenario effect of the refusal to attract writ jurisdiction. Learned Counsel appearing for the petitioner has given very much emphasis on the point that unless and until ground for refusal is backed by the reason/s, the same will be violative of principle of natural justice.;