ORDER
Ramesh Madhav Bapat, J.
1. In all the above writ petitions a common question of law is involved and therefore they are disposed of by a common order.
WP No.3076 of 2000:
The convict is the father of the petitioner herein. He was convicted for the offences punishable under Sections 148 and 302 read with Section 149 IPC and also under Section 3 of the Explosive Substances Act by the Sessions Judge, Ananthapur in Sessions Case No.105 of 1984 on 22-7-1985 and he is undergoing the sentence. Criminal Appeal No.672 of 1985 filed by the convict was dismissed. It is pleaded by him that he has undergone the sentence of 9 years 7 months and 20 days
and remand period of two months 26 days. Thus, the total sentence undergone by the convict is 13 years 2 months and 16 days including special remission given by the Government from time to time as on 26-1-2000.
WP No. 5760 of 2000:
The convict is the brother of the petitioner herein. He was tried by the Sessions Judge, Cuddapah in Sessions Case No. 236 of 1990 and was convicted for the offence punishable under Section 302 1PC and sentenced to suffer imprisonment for life and he was also found guilty of the offence punishable under Section 3(1) of the Dowry Prohibition Act, but no separate sentence was provided. The convict filed Criminal Appeal No.212 of 1992 before this Court and also SLP before the Supreme Court were dismissed. After conviction, the convict was sent to Central Jail, Cuddapah. It is pleaded by him that he has undergone the sentence of 7 years and 16 days and remand period of 10 months. Thus, the total sentence undergone by the convict is 10 years 4 months and 16 days including the remission given by the Government from time to time as on 26-1-2000.
WP No.3943 of 2000 :
The convict is the elder brother of the petitioner herein. He was convicted in Sessions Case No.202 of 1991 by the Addl. Sessions Judge, Adilabad for an offence punishable under Section 302 read with Section 149 IPC and was sentenced to suffer imprisonment for life and he was also convicted for an offence punishable under Section 395 read with Section 397 IPC and was sentenced to suffer rigorous imprisonment for 10 years. He was further convicted for an offence punishable under Section 307 IPC and was sentenced to suffer rigorous imprisonment for 5 years and he was further convicted for an offence punishable under Section 120-B
IPC and was sentenced to suffer rigorous imprisonment for six months. The substantive sentences were made to run concurrently. The convict has undergone imprisonment of 9 years 2 days and remand period of 2 years 3 months and 21 days. Thus, the total sentence of imprisonment undergone by the convict is 13 years including the remission given by the Government from time to time as on 26-1-2000.
WP No. 5801 of 2000 :
Two convicts are the brothers of the petitioner herein. The petitioner herein filed the writ petition on behalf of all the convicts. The convicts viz., G. Pedda Appaiah and G. Rama Anjaneyulu were convicted for the offences punishable under Sections 148, 302, 302 read with Section 149 IPC and Section 3 of the Explosive Substances Act in Sessions Case No. 105 of 1984 by the Additional Sessions Judge, Warangal and further the convict G. Rama Anjayulu was convicted for the offence punishable under Section 27 of the Arms Act in the aforesaid Sessions Case by the aforesaid Sessions Judge. The convict viz., N. Naganna was convicted for the offences punishable under Sections 302, 307 and 224 IPC, Sections 3 and 5 of the Explosive Substances Act and Section 25 (1-A) of the Arms Act in Sessions Case No. 190 of 1985 by the Additional Sessions Judge, Warangal. The convicts viz., S. Varada Reddy, R. Chinna Eswara Reddy, R, Bala Eswara Reddy, S. Ramanjaneyulu Reddy and R. Rajeswara Reddy were convicted in Sessions Case No.272 of 1988 for the offences punishable under Section 302 read with Sections 34 and 148 IPC Section 25 (IB) of the Arms Act; under Section 302 read with Sections 34 and 149 IPC and Section 5 of the Explosive Substances Act; under Section 302 read with Section 34 IPC and Sections 3 and 5 of the Explosive Substances Act, under Section 302 read
with Sections 34 and 148 IPC and Section 3 of the Explosive Substances Act and under Sections 302 read with Section 34 and 148 IPC and Section 3 of the Explosive Substances Act. The convict viz., Adivanna was convicted in Sessions Case No.249 of 1990 for the offences punishable under Sections 302 and 224 IPC. The convicts viz., M. Verikateswarlu and R.M. Hari Kumar were convicted in Sessions Case No.158 of 1998 for the offences punishable under Sections 452, 506, 392 and 302 IPC. The convict viz., Kamati Rajam was convicted in Sessions Case No.148 of 1992 for the offences punishable under Sections 302 and 354 IPC, The convict viz., Kumarapu Satyam was convicted in Sessions Case No.12 of 1991 for the offences punishable under Sections 302, 201 and 411 IPC. The convict Nwiela Peddiraju was convicted in Sessions Case No. 65 of 1993 for the offences punishable under Sections 302, 382 and 404 IPC. The convict viz., Jakkuna Sitaiah was convicted in Sessions Case No.336 of 1990 for the offences punishable under Sections 302, 382 read with Section 201 IPC and the convict viz., K. Laxmi Narayana was convicted in Sessions Case No. 75 of 1992 for the offences punishable under Sections 302, 379 and 404 IPC. All the convicts were sentenced to suffer life imprisonment for life and they are undergoing their respective sentences. The particulars of sentences undergone by the convicts are given below.
Sl. No.
Name
actual sentence
Y-M-D
Remission
Y-M-D
Total
Y-M-D
1.
G. Pedda Appaiah
9-6-11
3-4-0
12-10-11
2.
G. Rama Anjaneyulu
8-5-23
3-4-0
11-9-23
3.
N. Naganna
8-9-28
3-4-0
12-1-28
4.
S. Varadha Reddy
8-6-06
3-4-0
11-10-6
5.
R. Chinna Eswara Reddy
7-0-07
3-4-0
10-4-7
6.
R. Bala Eswara Reddy
8-5-18
3-4-0
11-9-18
7.
S. Ramanjaneyufu
8-7-28
3-4-0
11-11-28
8.
R. Rajeswara Reddy
7-0-01
3-4-0
10-4-01
9.
Adivanna
9-6-22
3-4-0
12-10-22
10.
M. Venkateswarulu
7-7-8
6-2-0
13-9-00
11.
R.M. Hari Kumar
8-5-02
5-5-10
13-10-12
12.
Kamati ‘Rajam
7-6-02
4-6-0
12-00-2
13
Kumarapu Satyam
6-1-08
2-2-5
8-3-13
14
Nunela Peddiraju
2-4-0
4-9-12
7-1-12
15
Jakkuva Sitaiah
9-3-28
5-4-28
14-7-00
16
K. Laxmi Narayana
4-4-3
4-2-8
8-6-5
WP No.7610 of 2000 :
The convict is the father of the petitioner herein. The Sessions Judge, Ananthapur in Sessions Case No.90 of 1983, convicted him for an offence punishable under Section 302 IPC. Appeals filed by the convict before this Court as well as the Supreme Court were dismissed. He has undergone the sentence of 8 years 10 months including the special remission given by the Government from time to time as on 26-1-2000.
WP No.8692 of 2000 :
The petitioner herein filed the writ petition on behalf of six convicts, who happened to be his close relations. Three convicts viz., I. Ruben, I. George and G. Sikhamani were tried for the offences punishable under Sections 148, 302 read with Section 149 IPC and under Section 3 of the Explosive Substances Act and were sentenced to suffer imprisonment for life. The convict viz., T. Nageswara Rao tried for the offences punishable under Sections 302, 120, 392 and 201 IPC and was convicted and sentenced to suffer imprisonment for life. The convict viz., B. Chinna Kondaiah was tried for the offences punishable under Sections 148, 149 IPC and
Sections 3 and 5 of the Explosive Substances Act. The convict was convicted and sentenced to suffer imprisonment for life. The Uppariguddi Venkateswarlu was tried for the offences punishable under Sections 148, 302 read with Section 149 IPC and Sections 3 and 5 of the Explosive Substances Act. He was convicted and sentenced to suffer imprisonment for life. The particulars of sentence undergone by the convicts as on 26-1-2000 are given below :
Sl. No.
Name
Actual sentence
Y-M-D
Total including
Y-M-D
1.
I. Ruben
7-00-5
11-1-10
2.
I. George
7-00-5
11-1-8
3.
Gosa Sokhamani
7-1-17
11-4-1
4.
B. Chinna Kondaiah
7-00-13
10-4-8
5.
Uppiriguddi Venkateswarlu
7-1-04
12-2-26
6.
T. Nageswara Rao
7-5-16
12-8-2
WP No.4441 of 2000 :
The convict is the brother of the petitioner herein. He was tried by the learned Additional Sessions Judge, West Godavari at Eluru along with four others for the offences punishable under Sections 302 498-A and 201 IPC in Sessions Case No.4 of 1990. He was convicted and sentenced to suffer imprisonment for life of the offence punishable under Section 302 IPC. He was also convicted for the offence punishable under Section 498-A IPC and was sentenced to suffer imprisonment for three years and also to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for six months. He was also convicted for the offence punishable under Section 201 IPC and was sentenced to suffer rigorous imprisonment for four years and to pay a fine of Rs.1000/-in default to suffer rigorous imprisonment for six months. He has undergone the
sentence of 13 years including the remission given by the Government as on 26-1-2000.
WP No.9641 of 2000 :
The convict is the brother of the petitioner herein. He was tried by the III Additional Sessions Judge, Kumool along with three others for the offences punishable under Section 302 read with Sections 34 and 498-A IPC in Sessions Case No.88 of 1990. He was convicted for the offence punishable under Section 302 IPC and was sentenced to suffer imprisonment for life. He was also convicted for the offence punishable under Section 498-A IPC and was sentenced to suffer rigorous imprisonment for two years. He has undergone the sentence of 10 years including the remission given by the Government from time to time as on 26-1-2000.
In all the writ petitions the prayer made is one and the same. It was stated that the Government issued G.O. No. 18, Home (Prisons-C) Department, dated 25-01-2000 giving remission of un-expired residue sentence to certain categories of prisoners. The said G.O., reads as under:
“GOVERNMENT OF ANDHRA PRADESH
ABSTRACT
Prisoners – Grant of Remission to prisoners on the occasion of “50th Anniversary of India becoming Republic”- Orders -Issued.
Home (Prisoners-C) Department G.O. Ms. No.18 Dated 25-1-2000 Read the following:
1. From the Inspector General of Prisons and Director of Correctional Services, A.P., Hyderabad Lr. No.888/SA2/99
dated 24-12-1999
2. From the Inspector General of Prisons and Director of Correctional Services,
A.P., Hyderabad Lr. No.888/SA2/99 dated 7-1-2000.
3. From the Inspector General of Prisons and Director of Correctional Services, A.P., Hyderabad Lr. No.888/ SA2/99 dated 18-1-2000.
ORDER :
On the occasion of the “50th anniversary of India becoming a Republic” and in exercise of the powers conferred by Article 161 of the Constitution of India, the Governor is hereby pleased to remit the unexpired residue of sentence as on 26-1-2000, of the following categories of prisoners in the State, who have been convicted by Civil Courts of Criminal jurisdiction for offences against laws relating to a matter to: which the Executive power of the State extends, subject to the conditions specified in paras (2) and (3) below:
(A) All convicted prisoners sentenced to imprisonment for life who have undergone an actual sentence of 7 years and a total sentence of 10 years (including remission) as on 26-1-2000.
(B) All convicted prisoners aged 65 years and above, sentenced to imprisonment for life who have undergone an actual sentence of 5 years and a total sentence of 7 years (including remission) as on 26-1-2000.
(C) AII convicted women prisoners sentenced to imprisonment for life who have undergone an actual sentence of 5 years and a total sentence of 7 years (including remission) as on 26-1-2000.
2. The remission of sentence ordered in Para 1 above shall also apply to the prisoners who are undergoing sentence in other States, having been convicted by Courts situated within the State of Andhra Pradesh.
3. The remission of sentence ordered in Para 1 above shall not apply to the following categories of prisoners,
namely:
(i) Prisoners convicted and sentenced by Courts situated outside the State of A.P.
(ii) Prisoners convicted of offences against laws relating to a matter to which the Executive power of the Union extends.
(iii) Prisoners convicted under Narcotic Drugs and Psychotropic Substances Act, the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, Explosive Substances Act, Indian Explosive Substances Act, Indian Explosive Act, and Indian Arms Act, while being sentenced to imprisonment for life.
(iv) Prisoners convicted for crimes against women such as Sections 376 and 354 IPC, while being sentenced to imprisonment for life.
(v) Prisoners convicted for the offences of theft, robbery, dacoity and receiving stolen property (i.e., Section 379 to 411 IPC) while being sentenced to imprisonment for life.
(vi) Prisoners who have overstayed on Parole/Furlough for cumulative periods in excess of 10 years; and
(vii) Prisoners who have escaped while undergoing the sentence.
4. The Inspector-General of Prisons and Director of Correctional Services, A.P., Hyderabad is directed to take action for release of the prisoners shown in Annexures-I, II and III to this order,
keeping in view the criteria specified in Paras (1), (2) and (3) above.
(By Order and in the name of the Governor of Andhra Pradesh)
A. Raghotham Rao
B. Principal Secretary to Government”
(True copy)
3. Thus, it is pleaded by the petitioners herein that inspite of the G.O., issued by His Excellency the Governor, they were not released and no benefit of remission was given, and therefore they have approached this Court with a prayer to issue a writ of habeas corpus directing the respondents herein to produce all the convicts mentioned in different writ petitions before the Court and release them forthwith.
4. The learned Counsel Mr. C. Padmanabha Reddy appearing on behalf ofthe petitioners herein submitted at the Bar that His Excellency the Governor issued a G.O., as stated above but the convicts under different writ petitions were not released on the ground that in addition to the life imprisonment imposed upon them, they were further convicted and sentenced to undergo different periods of sentences under different Acts. The learned Counsel further submitted that wile issuing the G.O., a discrimination has been made. The persons convicted for life and also under different laws normally the substantive sentences are made to run concurrently. Inspite of this position, the convicts under different writ petitions were not given benefit of the said G.O., and they were not released. This amounts to discrimination and violative of Article 14 of the Constitution of India and therefore prayed that a writ of habeas corpus be issued.
5. In support of the contentions raised by the learned Counsel for the petitioners,
he pointed out a ruling reported in Beer Singh v. State of Haryana and others, 1996(3) All India Cri.LJ 315, in which the learned single Judge of Punjab and Haryana High Court was pleased to hold as follows:
“Section 433-A Cr.PC provides for premature release – Life convict remained on parole for some period – period spent by prisoner on parole to be counted in the actual sentence undergone by the prisoner and cannot be excluded from the undergone sentence.”
6. The learned Counsel further relied upon a ruling reported in Bachan Singh v. State of Haryana and others, 1996 (3) All India Cri.LJ 420, in which the learned single Judge of Punjab and Haryana was also please to discuss the provision of Section 433-A Cr.PC and held the period of parole is required to be counted for actual period of 14 years imprisonment to be served by the petitioner. Same view was expressed by the learned single Judge of the same Court in a ruling reported in Ballkar Singh v. Stale of Haryana, 1996 (3) All India Cri.LJ 422.
7. Section. 433-A Cr.PC gives the power to the appropriate Government to commute the sentence imposed upon the convict. Section 433-A Cr.PC puts the restrictions on the power of the Government in case the convict is sentenced to imprisonment for life. Any amount of remission is given to the convict, the convict cannot be released earlier to 14 years.
8. The learned Counsel Mr. C. Padmanabha Reddy also placed reliance on the ruling reported in J. Jagram and others v. The State of A.P. and others, 1985 (2) An.WR. 346. In the aforesaid ruling, the Division Bench of this Court was dealing with the remission granted by the Government while exercising the executive powers vested in the Government under Sections 432 and 433 Cr.PC. Their
Lordships were not dealing with the powers of the Governor vested in the Governor under Article 161 of the Constitution of India. While deciding the above case, the Division Bench of this Court held that the Government cannot make distinctions while granting remission and therefore it was held that if such distinction or discrimination is made, it will amount to violation of Article 14 of the Constitution of India. Therefore, we hold that the said ruling is not applicable in the present set of facts. The powers conferred on the Governor under Article 161 of the Constitution of India are much higher powers than one conferred on the Government under Sections 432 and 433 Cr.PC.
9. Section 433-A Cr.PC was introduced in the Criminal Procedure Code by Act 45 of 1978, which imposed restrictions on the Government that they could not give a remission to any extent they like. Section 433-A Cr.PC specifically lays down that person (convict) shall not be released from the prison, who has been convicted for imprisonment for life unless he had served at least 14 years of imprisonment. Whereas Article 161 of the Constitution of India does not lays a distinction on the powers of the Governor. Therefore, we say that the powers vested in the Governor under Article 161 of the Constitution of India are much higher powers than the powers vested in the Government under Sections 432 and 433 Cr.PC. Therefore, we are of the considered view that the above said ruling is not applicable to the present set of facts.
10. Whereas the present G.O., was passed by the Governor by exercising its powers under Article 161 of the Constitution of India. Therefore, the powers conferred on the Governor have to be treated as discretionary powers and in many reported cases it has been held by different Courts that it is the powers of sparingly used.
Once it is held that these are discretionary powers of the Governor, then it is for the Government to grant remission in sentences to the prisoners to whom he feels fit.
11. While exercising the discretion, the Governor thought it fit not to grant remission to those convicts, who are involved in anti-social activities and their release would not be beneficial to the society at large. This discretion was used by the Governor not with reference to a particular case but with reference to a particular offence which he felt to be an offence against the society and in discretion he thought fit not to release such convicts.
12. Therefore, we are reluctant to interfere with the order to issue a writ of habeas corpus directing the respondents herein to release the convicts in the above writ petitions.
13. Therefore, we dismiss the Writ Petition Nos.3076, 3943, 5801 and 8692
of 2000.
14. As far as WP No.7610 of 2000 is concerned, it was submitted that the convict was not released as he was not completed the age of 65 years. According to the contention of the convict, he is over 65 years but his age is wrongly mentioned in the records.
15. While exercising the jurisdiction under Article 226 of the Constitution of India, the Court cannot allow the parties to lead evidence as to what is the correct age of the convict. The said convict can get the age established before the appropriate Court with appropriated proceedings.
16. Therefore, the Writ Petition No.7610 of 2000 is also dismissed.
17. As far as WP Nos.5760, 4441 and 9641 of 2000 is concerned, the learned Counsel for the writ petitioners submitted at
the Bar that the accused in all the writ petitions were convicted for life of an offence punishable under Section 302 1PC and all the accused were also convicted in their respective cases for an offence punishable under Section 498-A IPC. These accused were not granted remission in sentence. The learned Counsel brought to our notice that clause (iv) Para 3 of the aforesaid GO, is concerned, only the prisoners or convicts who were convicted for crimes against women such as under Sections 376 and 354 IPC were not given the benefit of the said G.O. The said clause does not include the offence punishable under Section 498-A IPC. Therefore, it was submitted by the learned Counsel that the convicts in the writ petitions ought to have been granted remission in sentence.
18. We are not in agreement with the submission made by the learned counsel. The G.O., was not made applicable to such convicts, who are committed crimes against women. The word used in clause (iv) para (3) of the said GO, is illustrative and not exhaustive. The more emphasis is required to be given to the words “crimes against women”. The offence under Section 498-A IPC is an offence against women. Therefore, we hold that the decision of the Government in not giving remission is perfectly correct. Hence, the Writ Petition Nos.5760, 4441 and 9641 of 2000 are dismissed.