Andhra Pradesh High Court - Amravati
Allatipalli Peddi Reddy vs Government Of Andhra Pradesh, on 29 January, 2024
HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.38082 of 2013
ORDER :
This writ petition is filed under Article 226 of the Constitution of India seeking for the following relief:
"... to issue a Writ or order or direction more particularly one in the nature of Writ of Mandamus declaring that the case of the convict Allatipalli Siva Sankar Reddy (Ct.No.4026)) serving out his sentence in the 2nd respondent Prisoners Agricultural Colony / Open Air Jail, Anantapur is not hit by Para 5 Clause II of the G.O.Ms.No.220 Home (Parole) Department dated 28.09.2013 passed by the respondent No..1 and it is further consequentially prayed that this Honble Court may be pleased to direct the respondent No.1 to forth release the said convict herein from the 2nd respondent Prisoners Agricultural Colony, Anantapur..."
2. Brief facts of the case are that the petitioner is the brother of the Prisoner i.e., Allatipalli Siva Sankar Reddy (hereinafter referred to as "Convict") (Ct.No.4026) presently serving out his life imprisonment in the Prisoners Agricultural Colony (Open Air Jail), Anantapur i.e., 2nd respondent herein. He was convicted and sentenced to undergo R.I for life imprisonment in SC No.209 of 2001 on the file of II Additional District & Sessions Judge (FTC) Ongole, Prakasam District vie judgment dated 30.11.2004 for an offence under Section 302 IPC and Section 3 of E.S Act. An appeal was preferred in Crl.A.No.2557 of 2004 and the same was dismissed vide judgment dated 11.12.2006, confirming the conviction and sentence imposed by the said Court. On account of his exemplary conduct, the convict was transferred to the 2nd 2 respondent Open Air Jail to which only prisoners who are reformed to the hilt, alone are transferred.
It is stated that the respondent No.1 has issued G.O.Ms.No.220 Home (Parole) Department, dated 28.9.2013, granting Special Remission to the prisoners awarded Life Imprisonment, and thereby providing for release of those prisoners who completed 7 years of actual sentence including remand period, and 10 years total sentence including remission as on 2.10.2013.
In the instant case, the convict, who is brother of the petitioner has completed 7 years of actual sentence with remand and a total sentence of 12 years 2 months, with remissions and thus, he is fully eligible for release as per the terms and conditions of the said G.O.Ms.No.220, DATED 28.09.2013. However, the case of the convict herein was not considered by the respondent No.1 even though the respondent No.2 recommended his case for release in terms of the said G.O. on the ground that Para 5 Clause II of the instant GO provides that "PRISONERS WHO ARE CONVICTED FOR LIFE IMPRISONMENT IN ANY CASE WITH TWO COUNTS AND MORE SHALL UNDERGO MINIMUM ACTUALSENTENCE OF 14 YEARS, WITH REMAND PERIOD, AND TOTAL SENTENCE OF 3 20 YEARS WITH REMISSION". Thus, in view of the said clause, the case of the convict was not considered as he does complete actual sentence of 14 years with remand period and total sentence of 20 years with remission. Hence, the present writ petition.
3. Heard Sri V. Mallik, learned counsel representing Sri P.V. Sai Krishna, learned counsel appearing for the petitioner and learned Assistant Government Pleader for Home appearing for the respondents.
4. On hearing, learned counsel for the petitioner submits that the LIFE was convicted under Section 302 IPC and Section 3 of Explosive Substances Act 1908 for a term of Life Imprisonment and with a fine and both the sentences have directed to run concurrently. He submits that the Government has issued G.O.Ms.No.220 dated 28.9.2013 granting Special remission to the petitioners awarded Life Imprisonment and thereby providing for release of those prisoners who completed 7 years of actual sentence including remand period. Even though the convict has completed 7 years of actual sentence with remand and a total of sentence of 12 years 2 months, the 1st respondent has not considered his case. 4
5. Learned counsel for the petitioner has relied upon a catena of decisions of Hon'ble Supreme Court reported in (i) Jayampu Allaah @ Venkateswwwarlu @ Ramanaiah @ Polayya versus The State of Andhra Pradesh1 , wherein it was held that:
"......in the circumstances, the respondent/State is directed to consider the case of the petitioner herein under the remission policy applicable to the case of the petitioner in accordance with the judgment of this Court in the case of State of Haryana & Ors vs Jagdish reported in (201) 4 SCC 216. The said consideration shall be made within a period of three months from today and a copy of the order be placed before this Court after serving a copy to the other side."
(ii) In another case reported in A.G. Perarivaalan versus State, Through Superintendent of Police CBI/SIT/MMDA, Chennai, Tamilnadu and another2", wherein the Apex Court held that :
".....Thereafter, on 4.2.2021, an affidavit was filed by the Deputy Secretary, Ministry of Home Affairs, stating that the Governor had, by order dated 25.1.2021, determined the President of India to be the appropriate authority to decide the petition filed by the Appellant under Article 161 and had forwarded the same along with the recommendation made by the Tamil Nadu cabinet, to the President of India."
"11....... submitted that the appropriate Government in the matter of remission/commutation in the present case is the Union of India....."
""12......The only point that requires to be considered in these appeals is the correctness of the reference made by the governor to the President of India on 25.1.2021, without taking a decision on the recommendation made by the State Cabinet on remission of the sentence of the Appellant. We do not accept the preliminary objection of the learned Additional Solicitor General that this point is not within the scope of the appeal.......""
"23....... To contend that it is only the President of India who has the power to pardon or grant remission or commutation of sentence, when a sentence is imposed under any of the provisions of the IPC and that the Governor has no power to grant pardon in exercise of his 1 Special Leave Petition (Criminal) No.38732 of 2022 2 Criminal Appeal Nos.833-834 of 2022 5 power under Article 161 of the Constitution. One of the points that was framed for consideration by the Constitution Bench in Sriharan (supra) pertained to the determination of the "appropriate Government"
for exercise of powers under Section 432 and 433 Cr.P.C. To ascertain the extent of the executive power of the Union, this Court looked into and rendered a detailed analysis of Articles 72, 73, 161 and 162. The focal point of discussion in the judgment relates to the proviso to Article 73 of the Constitution
26. After an exhaustive discussion, including reference to the Constituent Assembly Debates on draft Article 60 which corresponds to Article 73, it was held by this Court that where the State Legislature was also empowered to make laws on the same subject, determination of whether the executive power of the Union Government would extend to the State Government or not has to be decided by taking into account the fact of whether executive power has been expressly conferred on the Centre, either by the Constitution or under the law made by the Parliament. Therefore, to assess whether the executive power of the Union extended to a subject-matter in List III of the Seventh Schedule of the Constitution, it has to be examined whether executive power had been expressly conferred on the Union under the Constitution or the law made by the Parliament, failing which the executive power of the State remained intact. To our minds, it is clear from the said judgment that insofar as offences under Section 302, IPC are concerned, in the absence of any specific provision under the Constitution or under law made by the Parliament expressly conferring executive power on the Union, the executive power of the State would extend, irrespective of whether the subject matter of Section 302 is considered to be covered by an Entry in List II or an Entry in List III of the Seventh Schedule
27. In conclusion, we have summarised our findings below:
(a) The law laid down by a catena of judgments of this Court is well-settled that the advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution.
(b) Non-exercise of the power under Article 161 or inexplicable delay in exercise of such power not attributable to the prisoner is subject to judicial review by this Court, especially when the State Cabinet has taken a decision to release the prisoner and made recommendations to the Governor to this effect.
(c) The reference of the recommendation of the Tamil Nadu Cabinet by the Governor to the President of India two and a half years after such recommendation had been made is without any constitutional backing and is inimical to the scheme of our Constitution, whereby "the Governor is but a shorthand expression for the State Government" as observed by this Court.
28. In conclusion, we have summarised our findings below:
(a) The law laid down by a catena of judgments of this Court is well-settled that the advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution.
(b) Non-exercise of the power under Article 161 or inexplicable delay in exercise of such power not attributable to the prisoner is subject to judicial review by this Court, especially when the State Cabinet has 6 taken a decision to release the prisoner and made recommendations to the Governor to this effect.
(c) The reference of the recommendation of the Tamil Nadu Cabinet by the Governor to the President of India two and a half years after such recommendation had been made is without any constitutional backing and is inimical to the scheme of our Constitution, whereby "the Governor is but a shorthand expression for the State Government" as observed by this Court.
. In conclusion, we have summarised our findings below:
(a) The law laid down by a catena of judgments of this Court is well-
settled that the advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution.
(b) Non-exercise of the power under Article 161 or inexplicable delay in exercise of such power not attributable to the prisoner is subject to judicial review by this Court, especially when the State Cabinet has taken a decision to release the prisoner and made recommendations to the Governor to this effect.
(c) The reference of the recommendation of the Tamil Nadu Cabinet by the Governor to the President of India two and a half years after such recommendation had been made is without any constitutional backing and is inimical to the scheme of our Constitution, whereby "the Governor is but a shorthand expression for the State Government" as observed by this Court.
29. In conclusion, we have summarised our findings below:
(a) The law laid down by a catena of judgments of this Court is well-settled that the advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution.
(b) Non-exercise of the power under Article 161 or inexplicable delay in exercise of such power not attributable to the prisoner is subject to judicial review by this Court, especially when the State Cabinet has taken a decision to release the prisoner and made recommendations to the Governor to this effect.
(c) The reference of the recommendation of the Tamil Nadu Cabinet by the Governor to the President of India two and a half years after such recommendation had been made is without any constitutional backing and is inimical to the scheme of our Constitution, whereby "the Governor is but a shorthand expression for the State Government" as observed by this Court. of the Constitution, we direct that the Appellant is deemed to have served the sentence in connection with Crime No. 329 of 1991. The Appellant, who is already on bail, is set at liberty forthwith. His bail bonds are cancelled.
(iii) In a case of State of Haryana and Ors. Versus Jagdish3, wherein the Hon'ble Apex Court held that:3 Crl.Appeal No.566 of 2010 7
In Ashok Kumar @ Golu v. Union of India & Ors. AIR 1991 SC 1792 this Court considered the scope and relevancy of Rajasthan Prisons (Shortening of Sentences) Rules, 1958 qua the provisions of Section 433-A Cr.P.C. The said Rajasthan Rules 1958 provided that a "lifer" who had served actual sentence of about nine years and three months was entitled to be considered for pre-mature release if the total sentence including remissions worked out to 14 years and he was reported to be of good behaviour. The grievance of the petitioner therein had been that his case for pre-mature release had not been considered by the Concerned Authorities in view of the provisions of Section 433-A Cr.P.C. This Court considered the matter elaborately taking into consideration large number of its earlier judgments including Maru Ram (supra), Bhagirath v. Delhi Administration AIR 1985 SC 1050; Kehar Singh & Anr. v. Union of India & Anr. AIR 1989 SC 653, and came to the following conclusions:
(i) Section 433-A Cr.P.C. denied pre-mature release before completion of actual 14 years of incarceration to only those limited convicts convicted of a capital offence i.e. exceptionally heinous crime;
(ii) Section 433-A Cr.P.C. cannot and does not in any way affect the constitutional power conferred on the President/Governor under Article 72/161 of the Constitution;
(iii) Remission Rules have a limited scope and in case of a convict undergoing sentence for life imprisonment, it acquires significance only if the sentence is commuted or remitted subject to Section 433-A Cr.P.C. or in exercise of constitutional power under Article 72/161 of the Constitution; and
(iv) Case of a convict can be considered under Articles 72 and 161 of the Constitution treating the 1958 Rules as guidelines.
5. Learned counsel for the petitioner while relying upon the above decisions submits that in the present case the LIFE convict has completed nearly 23 years of Sentence including he remand period and is fully entitled to the ratio laid in the above said decisions. He further submits that in view of long period incarceration and good conduct being exhibited the Court may please to issue a direction to consider the case for remission by the State Government in view of law down in A.G. Perarivalam's case (supra 2) and pending consideration of the 8 same this Court may be pleased to grant bail in the interest of justice.
6. Per contra, learned counsel for the respondents has filed counter affidavit on behalf of the respondents and denied all the allegations made in the petition. He contended that the 1st respondent has issued certain guidelines for grant of special remission on the occasion of 2nd October 2013 (Gandhi Jayanthi) vide G.O.Ms.No.220 Home (Parole) Department, dated 28.09.2013 to certain categories of life convicted prisoners who have been convicted for an offence or offences against laws relating to matters to which the executive power of the state extends.. He mainly contended that the case of Convict Prisoner No.4026 Allatipalli Siva Sankar Reddy S/o Veera Reddy was not considered for special remission as per the guidelines at Para No.5 (ii) of G.O.Ms.No.220 Home (Parole) Department, dated 28.9.2013 issued by the 1st respondent. Accordingly to which "Prisoners who are convicted for the life imprisonment in any case with two counts and more shall undergo a minimum actual sentence of 14 years with remand period and total sentence of 20 years with remission" the Convict Prisoner No.4026,Allapalli Siva Sankar Reddy, S/o Veera Reddy has not completed 14 years of actual sentence 9 with remand period and a total sentence of 20 years with remission. Therefore, he did not eligible for grant of special remission. Hence, learned counsel opposed to grant any relief to the petitioner.
7. On perusing the material on record, this Court observed that the Life was convicted under Section 302 IPC and Section 3 of Explosive Substances Act 1908 for a term off Life Imprisonment and with a fine and both the sentences have directed to run concurrently.
8. On a plain reading of the decisions cited by the learned counsel for the petitioner, it is observed that, it is only the President of India who has the power to pardon or grant remission or commutation of sentence, when a sentence is imposed under any of the provisions of the IPC and that the Governor has no power to grant pardon in exercise of his power under Article 161 of the Constitution.
9. It is pertinent to mention here the determination of the "appropriate Government" for exercise of powers under Sections 432 and 433 Cr.P.C., which reads as under:
Section 432 : Power to suspend or remit sentences:
.....
....
In Section 433 : the expression "appropriate Government" means, 10
1. 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 a matter to which the executive power of the Union extends, the Central Government;
2. in other cases the Government of the State within which the offender is sentenced or the said order is passed.
10. It is also observed from the above decision that the reference of the recommendation of the Tamil Nadu Cabinet by the Governor to the President of India two and a half years after such recommendation had been made is without any constitutional backing and is inimical to the scheme of our Constitution, whereby "the Governor is but a shorthand expression for the State Government".
11. As seen from the G.O.Ms.No.220 Home (Parole) Department, dated 28.09.2013, in paras-2 and 3, it was mentioned that:
"..........
....
2. The Government have examined the requests and decided to grant remission of sentence, on the occasion of 2nd October, 2013 (Gandhi Jayanthi) to certain categories of life convicted prisoners who have been convicted for an offence or offences against laws relating to matters to which the executive power of the State extends.
3.Accordingly, relaxing the orders issued in the reference 1st read above, the Government hereby issues the following guidelines giving one time exemption for remitting the un-expired portion of sentence in the cases of following categories of prisoners who have been convicted by Civil Courts of criminal jurisdiction. These guidelines will be applicable to the following life convicts undergoing life sentence, keeping in view their good behaviour, subject to conditions as specified at para 4 below:-
a)....
......
b).... All convicted male prisoners sentenced to imprisonment for life including those governed by Section 433-A of the Code Criminal 11 Procedure, 1973 (Central Act 2 of 1974) and who have undergone an actual sentence of 7 years including remand period and total sentence of 10 years including remission as on 2.10.2013 shall be released.
12. In view of the foregoing discussion and the law laid down in A.G.Peraarivalan's case (supra 2) and in view of G.O.Ms.No.220, dated 28.09.2013, this Court is of the considered view that, the Convict is deemed to have served the sentence in connection with S.C.No.209 of 2001 on the file of II Additional District & Sessions Judge (FTC) Ongole, Prakasam District. The respondent/State is directed to consider the case of the Convict in accordance with the judgment of above A.G. Perarivalan's case. The said consideration shall be made within a period three (03) months from today and a copy of the order be placed before this Court after serving a copy to the other side . 13. With the above observation, the Writ Petition is disposed of. There shall be no order as to costs. As a sequel, interlocutory applications, if any pending, shall stand closed.
______________________________ DR. K. MANMADHA RAO, J.
Date : 29 -01-2024 Gvl 12 HON'BLE DR. JUSTICE K. MANMADHA RAO WRIT PETITION No.38082 of 2013 Date : 29.01.2024 Gvl 13