JUDGMENT
M.N. Rao, J.
1. These two writ petitions have been filed by Sri M. T. Khan, President of the Andhra Pradesh Civil Liberties Committee on behalf of two convicts contending that their continued incarceration is illegal and arbitrary. W.P. No. 20018 of 1995 relates to convict S. Appala Swamy (CT No. 8103) who was convicted for the offence under Section 302, I.P.C. and sentenced to undergo imprisonment for life by the Sessions Judge, Bastar at Jagdalpur (Madhya Pradesh) in S.T. No. 238 of 1986. While he was serving the life sentence at the District Jail, First Class, Jagdalpur, he was transferred to the Visakhapatnam Jail in Andhra Pradesh on 29-1-1991. Before his transfer to the Visakhapatnam Jail, he was in Bastar jail from 5-3-1986 as a remand prisoner. As per the counter-affidavit, he served, as on 22-9-1995, a total sentence of 11 years 6 months and 6 days as detailed below :
"Actual sentence 7 y 7 m 7 d undergone Remand period from 5-3-1986 to 14-2-1988 1 y 11 m 17 d Remission earned upto August 1995 (707 days) 1 y 11 m 12 d ----------------- Total period 11 y 6 m 6 d -----------------
W.P. No. 21536 of 1995 relates to convict Rajender (CT 5334) who was convicted under Section 302, I.P.C. and sentenced to imprisonment for life on 15-3-1982 in S.C. No. 209 of 1981 by the IV Additional Sessions Judge, Thane, Maharashtra. He was in judicial custody from 14-5-1981. While he was serving the sentence in the Central Prison, Erawada, Maharashtra, he was transferred to the Central Prison, Warangal in the State of Andhra Pradesh on 6-8-1988. As on 14-5-1995, he had completed 14 years of actual sentence including the remand period. When the Government of Andhra Pradesh forwarded the entire case of convict Rajender to the State of Maharashtra on 12-9-1994 for taking appropriate action having regard to the fact that the completed actual sentence of 14 years in prison, the Government of Maharashtra passed an order on 1-12-1995 under sub-section (1) of Section 432, Cr.P.C., remitting “that portion of the sentence of imprisonment for life which is in excess of 24 years of total imprisonment including all remissions subject to the completion of actual imprisonment of 14 years …….. subject to the condition of the (said) person’s good behaviour and conduct in prison till the time of his release …..” These facts are uncontrovesial supported by the record placed before us.
2. The Government of Andhra Pradesh issued G.O. Ms. No. 4, Home (Prisons-C) Department dated 17-1-1995 by which the Governor of Andhra Pradesh in exercise of his powers conferred by Article 161 of the Constitution of India remitted the unexpired residue of the sentences of the following categories of prisoners convicted by the Courts in the State for offences against laws relating to matters to which the executive power of the State extends.
“(a) All convicted prisoners sentenced to imprisonment for life and governed by Section 433-A, Cr.P.C., who have completed 14 years of total sentence including 10 years of actual sentence as on 14-01-1995 shall be released.
(b) All convicted prisoners sentenced to imprisonment for life and governed by Section 433-A, Cr.P.C. aged more than 65 years and have undergone more than 5 years of actual sentence and a total sentence of 7 years as on 14-1-1995 shall be released.”
Paragraph 3 of the G.O., says that all prisoners eligible for release as on 14-01-1995 falling under the above two categories shall be released. Paragraph 4 lays down that the above remissions and reductions in sentences shall also apply to prisoners who have been convicted by Courts situated within the State of Andhra Pradesh and are under-going the sentences in other States. Five categories of prisoners are excluded from the purview of the aforesaid benefit. One of these excluded categories is :
“Prisoners convicts and sentenced by Courts situated outside the State of Andhra Pradesh.”
The two convicted in these two write petitions are squarely covered by the aforesaid exception.
3. Counter-affidavits in both the matters, apart from averring to the legal contentions raised by the petitioner, have stated the factual position concerning the period of remand and remissions earned for good behaviour by both the convicts. Although the States of Maharashtra and Madhya Pradesh are parties to these writ petitions, the Maharashtra State has not filed any counter-affidavit, but in counter filed on behalf of the Madhya Pradesh Government by Sri R. S. Vijayavargia, Senior Law Officer, Jail Head Quarters, Bhopal, it is stated that the convict S. Appalaswami was transferred from Bastar to Visakhapatnam Central Jail as per the provisions of the order issued by the Government of Madhya Pradesh under Section (3)(1) of Section 29(sic) of the Transfer of Prisoners Act, 1950. Rule 2 of the above order entitled Madhya Pradesh Prisons (Removal of the Prisoners Confined in Prison) Orders, 1968, lays down that the transfer of a prisoner has to be effected by the Inspector-General of Prisons who should pass formal orders sanctioning the transfer while at the same time notifying in each case the Inspector-General of Prisons of the State to which the prisoner is to be removed and that ordinarily persons sentenced to serve imprisonment for a period of less than three months shall not be transferred. This rule also permits the Inspector-General of the State of Madhya Pradesh to remove any prisoner transferred to another State to the State of Madhya Pradesh with the previous consent of the Inspector-General of Prisons of the other State.
4. Sri Kannabhiran, learned senior counsel for the petitioner, had urged that the clemency power under Article 161 of the Constitution extends to all prisoners serving sentences in the jails of the State of Andhra Pradesh and exclusion of one category of prisoners on the ground that they were convicted by Courts situate outside the State of Andhra Pradesh is arbitrary and discriminatory forbidden by Article 14 of the Constitution. The executive power of the State, according to the learned counsel, comprehends the power to pass orders granting remissions in respect of the excepted category in question and there is no impediment in this regard either in the Transfer of Prisoners Act, 1950 or in any other enactment.
5. Opposing the prayer for the release of the two convicts in question, it is urged by Sri Chalameshwar, the learned Additional Advocate-General, that the State of Andhra Pradesh has no power to grant remissions to prisoners undergoing sentences in this State pursuant to convictions given by Courts of competent jurisdiction located in other States. The exclusion of this category of prisoners was done not because the State Government did not want to extend the benefits to them but die to the sole reason that it had no power to deal with them.
6. On the submissions made by the learned counsel for both sides, the following questions arise for consideration :
“(1) Whether the Governor of the State of Andhra Pradesh, in exercise of his clemency powers under Article 161 of the Constitution, can grant remissions to prisoners convicted by the Courts outside the State of Andhra Pradesh but undergoing sentences in the jails in the State of Andhra Pradesh ?
and
(2) If the answer is in the affirmative, to what relief the two convicts in question are entitled ?
7. Re (1) :
Section 432 of the Code of Criminal Procedure, 1973, empowers the appropriate Government to suspend or remit sentence with or without conditions. It may, while exercising this power, seek the opinion of the “presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the suspension or remission of sentence sought by a prisoner should be granted”. The State Government, under sub-section (6) of Section 432, Cr.P.C., can exercise this power in respect of any order passed by a Criminal Court under the Code of Criminal Procedure or of any other law which restricts the liberty of any person or imposes any liability upon him or his property. The expression “appropriate Government” as defined in sub-section (7) means :
“(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under any law relating to matter to which the executive power of the Union extends, the Central Government;
(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.”
A similar power to commute sentences is conferred on the State Government by Section 433. Notwithstanding the power conferred under Section 432, Section 433-A lays down that no person on whom the sentence of imprisonment for life is implied for an offence for which death is one of the punishments provided by law or where the sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, shall be released from prison unless he had served at least 14 years of imprisonment.
8. In Maru Ram v. Union of India, , while sustaining the constitutionality of Section 433-A, the Supreme Court has considered the ambit and scope of the clemency power of the President and the Governors under Articles 72 and 161 of the Constitution :
“Once a sentence has been imposed, the only way to terminate it before the stipulated term is by action under Ss. 432/433 or Arts. 72/161. And if the latter power under the Constitution is not invoked, the only source of salvation is the play of power under Ss. 432 and 433 (a) so far as a life is concerned. No release by reduction or remission of sentence is possible under the corpus juris as it stands in any other way.”
After considering the question as to whether in view of the statutory prohibition in Sec 433-A, the power of clemency has to be exercised by the head of the executive in his individual discretion or on the advice of the Council of Ministers, the Supreme Court held :
“The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case in necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group.”
9. The legal position is thus absolutely clear that the statutory injunction incorporated in Section 433-A, Cr.P.C. is no impediment when power of pardon is invoked under Article 72 or Article 161 of the Constitution.
10. Prior to 1950, there was no provision for transfer or prisoners from Parts A, C and D States of the First Schedule to the Constitution (as it existed then) to the then Part B States. In order to overcome this difficulty, Parliament has enacted Act 29 of 1950 entitled the Transfer of Prisoners Act 1950 as a result of which it is now legally permissible for the Government of any State to transfer prisoners from one State to another State. Of the three sections comprising the Act, Section 3, which is central to the Act, is in the following terms :
“3. Removal of prisoners from one State to another :- (1) Where any person is confined in a prison in a State, –
(a) under sentence of death, or
(b) under or in lieu of, a sentence of imprisonment or transportation, or
(c) in default of payment of a fine, or
(d) in default of giving security for keeping the peace or for maintaining good behaviour, the Government of that State may, with the consent of the Government of any other State, by order provide for the removal of the prisoner from that prison to any prison in the other State.
(2) The officer in charge of the prison to which any person is removed under sub-section (1) shall receive and detain him, so far as may be, according to the exigency of any writ, warrant or order of the Court by which such person has been committed, or until such person is discharged or removed in due course of law.”
Under sub-section (1) of Section 3, the categories of persons specified in Clauses (a) to (d) can be transferred by the Government of the State in the prisons of which they are undergoing sentences to the prisons of any other State with the consent of the Government of that State. It is obvious that in the absence of such a consent, there cannot be any transfer of prisoners. What happens to the transferred prisoners is dealt in sub-section (2). The first limb of sub-section (2) presents no difficulty. When a prisoner is transferred from one State to another State, the officer in charge of the prison to which the prisoner is transferred shall receive and detain him as per the exigencies of any writ or warrant of a Court by which such person has been committed. If, as per the warrant, the prisoner was to undergo a sentence of seven years and if he was already completed two years of sentence by the date of the transfer, he will have to serve the rest of the five year’s sentence in the prison of the State to which he was transferred. In the computation of this period, the remission earned by him for good conduct as specified in the rules governing the conditions of the prisoners in the prisons of the receiving State also must be reckoned. This is an inevitable consequence; otherwise absurd results would ensue. The authorities of the prison in which the prisoner is undergoing the sentence in the receiving State alone are the best Judges to assess his conduct and recommend in accordance with the rules what period of remission should be given to him. It would not be possible for the transferor-State to take up this responsibility. After taking into account the remission period earned by a prisoner, if he completes he total period of sentence as per the warrant issued by the Court by which he was convicted and sentenced, he should be released. As regards this interpretation of the first limb of sub-section (2) there is no controversy.
11. The second limb of sub-section (2) concerns with situations not covered by the first limb. The officer in charge of the prison of the receiving State shall detain the prisoner as per the second limb “until such a person is discharged or removed in due course of law.” The discharge from the prison may be in accordance with the judgment of the Court by which the prisoner was convicted and sentenced or by any executive action pursuant to any statutory provision or the clemency power under Article 72 or 161 of the Constitution. This modus operandi comes into play in regard to removal of a prisoner in due course of law.
12. The question whether the receiving State, by enacting a law, can exercise jurisdiction over prisoners transferred to its prisons from outside the State arose in Sitaram v. State, . Under Madhya Pradesh Prisoners Release on Probation Act, 1954, the Government of Madhya Pradesh, by Section 2, was empowered to release a person confined in a prison under a sentence of imprisonment if his antecedents and conduct were such that he is likely to abstain from crime and lead a peaceful life, if he was released from prison. A Division Bench of the Madhya Pradesh High Court ruled that the power of the State Government “was not subservient to any further requirement like the prior concurrence of the State of conviction.” Interpreting the words “in due course of law” occurring in the second limb of sub-section (2) of Section 3 of the Transfer of Prisoners Act, 1950, the Division Bench also held (at p. 256 of AIR) :
“…… detention of a prisoner is governed not only by the relevant rules and regulations in the Jail Manual of the particular State where he happens to be imprisoned for the time being, but also by all the laws of that State governing all classes of prisoners.”
The ratio in Sitaram (supra) was approved by the Supreme Court in State of M.P. v. Ratan Singh, . Referring to Sitaram (supra), it was observed by Fazl Ali, J., who spoke for the Division Bench of the Supreme Court (para 8) :
“It was not a case where the Government was exercising its discretion under Section 401 (corresponding to Section 432, Cr.P.C., 1973) of the Code of the Criminal Procedure for remission of a part of the sentence after accused had served the sentence for 20 years and claimed to be released. Secondly, the power for a temporary release of the prisoner was conferred by the said Act on the State of Madhya Pradesh under certain conditions. The Government was, therefore, exercising a statutory power. In these circumstances, the facts in Sitaram Barelal’s case were quite different from the facts of the present case. It is true that the prisoner in that case was lodged in a jail in the State of Maharashtra but in view of the provisions of the Special At, a particular State Government alone was empowered to exercise its discretion under the provisions of Section 2 of the said Act.”
In Ratan Singh (supra), the question for consideration was in the case of prisoners transferred from one State to another State, which is the appropriate Government to direct release of the prisoner under Section 401, Cr.P.C., 1898 ? After considering the legislative history of Section 401, Cr.P.C., 1898, Fazl Ali, J., held :
“…. it is the State where the accused was convicted which alone has the power to grant remissions of the sentence.”
Ratan Singh’s (supra) interpretation as to “appropriate Government” has no application when the power of pardon under Article 161 of the Constitution is invoked. Other than those contained in Articles 161 and 162, there are no limitations in regard to the exercise of this power. As already stated supra, the provisions of the Code of Criminal Procedure cannot cut down the ambit of the exercise of power under Article 161 of the Constitution. From the approval of the Madhya Pradesh decision in Sitaram (supra) by the Supreme Court, the legal position emerges that in respect of transferred prisoners, the receiving State, by law, can assume jurisdiction for the purpose of effecting their discharge or release : the source of legislative power for such a course of action is Articles 245(1), 246(2) and Entires 1, 2, 3, and 4 of List III of of the Seventh Schedule to the Constitution. Under Article 162, the executive power of the State extends to matters with respect to which the Legislature of the State has power to make laws : what the Legislature of a State could do by enacting a law, the Government also can do. It follows that the clemency power under Article 161 can comprehend transferred prisoners also.
13. The contention advanced for the State by the learned Additional Advocate-General that the Governor has no power in respect of transferred prisoners to direct their discharge or release under Article 161, therefore, does not merit acceptance.
14. Re (2) :
The convict in W.P. No. 21536 of 1995 – Rajendra Rajamutyam (C.T. No. 5334) – who is now lodged in the Central Jail, Warangal has undergone actual sentence of 13 years 6 months and 27 days as on 12-12-1995 and including remissions, the total sentence undergone by the above convict is 21 years, 6 months and 27 days. But for the sub-paragraph (1) of paragraph 4 of the impugned G.O., – G.O. Ms. No. 4 Home (Prisons C) Department, dated 17-1-1995 – excluding the benefit of remission to prisoners convicted and sentenced by Courts outside the State of Andhra Pradesh, but serving imprisonment within the State of Andhra Pradesh, the convict Rajendra Rajamutyam (CT No. 5334) would have got the benefit and obtained release. So far as the other convict – S. Appalaswamy in W.P. No. 20018 of 1995 – is concerned, he has completed actual sentence of 7 years, 7 months and 7 days as on 22-9-1995 and the total sentence undergone by the above date is 11 years 6 months and 6 days. The particulars regarding his age are not placed before us. Unless he is aged more than 65 years, he cannot get the benefit under Clause (b) of paragraph 2 of the impugned G.O., as his case is not covered by Clause (a) under which completion of fourteen years of total sentence including 10 years of actual sentence as on 14-1-1995 is a necessary per-condition for release.
15. The decision of the Government not to extend the benefit of premature release was not because it did not want to do so but because of its belief that it had no such power. In other words, it has decided not to act as it felt that it cannot act. In view of our conclusion that the power under Article 161 of the Constitution encompasses transferred prisoners also, the State Government will have to extend the benefit of premature release conferred under G.O. Ms. No. 4, dated 17-1-1995 to transferred prisoners also.
16. The classification of prisoners into those convicted and sentenced by Courts situate within the State and those transferred from the prisons of other States although, at a superficial level, appears to be based on ascertainable differentia, is devoid of nexus between the classification and the object sought to be achieved. Both the classes of prisoners are similarly circumstanced as prisoners undergoing sentences in the prisons within the State of Andhra Pradesh. They are governed in the prisons by the same set of rules and statutory provisions. The object sought to be achieved by the impugned G.O., is release of prisoners falling within the ambit of Clauses (a) and (b) of paragraph 2 and so whoever fulfils those requirements must get the benefit. By making an artificial classification for the purpose of denying the benefit, that too under a mistaken belief that such a power is not comprehended by Article 161 of the Constitution, the impugned G.O., has inflicted impermissible and unjustifiable hardship on the transferred prisoners. And in this plainly forbidden by the equality clause enshrined in Article 14 of the Constitution. Selectivity in the absence of a compelling justification cannot be sustained when tested on the touchstone of Article 14.
17. For these reasons, we quash sub-paragraph (1) of paragraph 4 of G.O. Ms. No. 4, Home (Prisons C) Department, dated 17-1-1995 which is in following terms :
“Prisoners convicted and sentenced by Courts situated outside the State of Andhra Pradesh”,
in consequence of which, the transferred prisoners also will be entitled to the benefit conferred by this G.O. As sub-paragraph (1) of paragraph 4 of the impugned G.O., is clearly severable from the rest, we sustain the rest of G.O. Ms. No. 4, Home (Prisons C) Department, dated 17-1-1995.
18. The writ petitions are accordingly allowed and the respondent-A.P. State Government is directed to consider the cases of the two convicts in question in accordance with the provisions of G.O. Ms. No. 4, Home (Prisons C) Department, dated 17-1-1995 without reference to sub-paragraph (1) of paragraph 4 and pass order in this regard as expeditiously as possible in any event not later than six weeks from the date of receipt of a copy of this judgment. No costs.
19. Petition allowed.