Andhra HC (Pre-Telangana)
M. Shanker Rao vs The Inspector General Of Prisons, Govt. ... on 11 October, 1982
JUDGMENT
K. Madhava Reddy, Acting C.J.
1. This is a petition for the issue of writ of a Habeas Corpus to produce the life convict C. No. 7778 lodged in Central Prison, Chanchalguda, Hyderabad and to set him at liberty.
2. The petition is filed in the following circumstances; one L. Shankar was convicted and sentenced to life imprisonment by the Sessions Judge, Nizamabad in S.C. No. 7/76 for having committed an offence punishable under S. 302, I.P.C. He has been in jail during certain period of investigation and trial and ever since the disposal of the Sessions Case serving the sentence of life imprisonment. He was transferred to Viaskhapatnam Borstal School on 7-11-1977 and from there to Nizamabad Borstal School. He was kept there kill 12-10-1980 on which date he was transferred to the Central Prison, Hyderabad. As an under-trial prisoner at Nizamabad he spent 340 days from 7-11-1975. The petitioner claims that as on 30-10-1980 the convict has completed more than five years of imprisonment inclusive of the learned period and the remission earned by him and as such entitled on be set at liberty in view of G.O.Ms. No. 557 Home (prison C) Department dated 30-10-1980, issued by the Government of Andhra Pradesh remitting and reducing the sentences of various categories of prisoners in the State. Cls. (a), (b), (c) and (d) of paragraph 2 of the said Government Order, which are material for our present purposes read as follows :-
"(a) Except the prisoners, sentenced for life who are governed by S. 433-A, Cr.P.C. all other convicts who have undergone total sentence of 5 years as on 31-10-1980 shall be released.
(b) All prisoners with a sentence of one year and above shall be granted a special remission of one month for each year of sentence awarded.
(c) All prisoners with a sentence below one year shall be granted a special remission of fifteen days.
(d) All prisoners other than life convicts over sixty years of age as on 31-10-1980 shall be released."
It is the claim of the petitioner that the above named life convict has undergone a sentence of more than five years and therefore he is entitled under clause (a) of the said G.O. to be released.
3. Earlier, pursuant to the judgment of the Supreme Court when a writ petition W.P. No. 2657/82, was filed by several convicts, including the present life convict, who figured at S. No. 158 in the annexure to the said writ petition, this Court ordered the release of several convicts. But the present life convict was not released which, according to the petitioner, constitutes disobedience of the order of the Court constituting contempt of Court. He avers that the respondents have not released him on the ground that the occasional short spells of leave of 10 to 15 days in all amounting to 65 days granted to him cannot be counted for determining whether he has undergone five years sentence which alone would entitle him to the benefit of clause (a) of paragraph 2 of the said Government Order.
4. The facts are not in dispute. The life convict in this case was granted 65 days leave while he was at Borstal School as follows :-
In 1977-10 days short leave.
In 1978-10 days short leave.
In 1979-15 days short leave.
In 1980-15 days short leave and another 15 days leave at Head Office making a total of 65 days.
In the counter filed on behalf of the respondents it is stated that even if the period of 65 days is included, he would have served a sentence of only 5 years 11 months and 8 days and not five years of total sentence as on 31-10-1980.
5. At the outset we must notice that the Supreme Court in Kartar Singh v. State of Haryana, , has held that the benefit of the set off contemplated by S. 428, Cr.P.C. would not be available to life convicts. Though the provisions of S. 433-A, Cr.P.C. do not apply to the life convict before us, still in view of the pronouncement of the Supreme Court, he is not entitled to claim the set off contemplated by S. 428, Cr.P.C. In view of the above decisions, a convict, who has been sentenced to life imprisonment, is not entitled to the grant of set off under S. 428. Cr.P.C. Only under the A.P. Prison Rules and the rules made under the Borstal Schools Act, parole is granted and in calculation of the sentence, certain remissions or leave of absence are given.
6. Under Rule 17 of the Rules framed under the Madras Borstal Schools Act, 1925 leave of absence may be granted as detailed hereunder :-
"17. The Superintendent may, at his discretion and subject to such conditions as he may deem proper, grant leave of absence to any inmate in the Star or special Star grade for a period not exceeding 10 days at any time and subject to a maximum of fifteen days in a year, if he is satisfied that the inmate will return at the end of the leave, to visit parents or relatives if the behaviour of the inmate justifies such a privilege; and in special cases to visit a parent or relative who is dangerously ill. Such a period of leave of absence shall be treated as "release on parole."
7. Under R. 974 of the A.P. Prison Rules, 1979, the period spent under parole/emergency leave will not count as a part of the sentence. Rule 974 reads as follows :-
"A prisoner may be released on parole/emergency leave under S. 432 of the Criminal P.C., 1973, for such period as the Government may order in case of serious illness, death or marriage of any member of the family or near relative or for any other sufficient cause. The period spent under parole/emergency leave will not count as a part of the sentence."
8. Thus, in the light of the above rules, in calculating the period of sentence which a life convict has served, the period during which the convict was on lead has to be omitted. G.O.Ms. No. 557 Home (Prison C) Department dated 30-10-1980 has to be examined and applied having regard to the said Rules. Under that G.O. it is directed that all other convicts who are undergoing imprisonment and who have undergone a total sentence of five years shall be released. The total period of five years has to be computed in accordance with the A.P. Prison Rules and the Borstal School Rules referred to above. So calculated, the period of 65 days of leave of absence granted to this life convict, which period is not in dispute, has to be excluded and the convict has not undergone a total sentence of five years as on 31-10-1980. Consequently he is not entitled to be released under the said G.O.
9. For all these reasons as, the writ petition fails and is accordingly dismissed. No costs, Advocate's fee Rs. 250.
10. The learned counsel for the petitioner made an oral request for grant of leave to appeal to the Supreme Court. We are unable to certify that this case involves such a substantial question of law of general importance as requires the consideration by the Supreme Court or that it is otherwise a fit case for grant of leave. Leave refused.
11. Petition dismissed.