Andhra Pradesh High Court - Amravati
The Present Writ Petition Came To Be ... vs Sessions Judge on 28 September, 2019
Author: C.Praveen Kumar
Bench: C. Praveen Kumar
1
THE HON'BLE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
W.P. No.12192 of 2019
ORDER :(Per Hon'ble Acting Chief Justice C.Praveen Kumar)
1. The present Writ Petition came to be filed seeking writ of Habeas Corpus or any other appropriate writ, order or direction to produce Ankati Gopala Rao @ Gopalakrishna Murthy, who is undergoing imprisonment for life in Central Prison, Rajamahendravaram, before this Court and set him at liberty after declaring the action of respondents in not giving special remission in his favour in accordance with G.O.Ms.No.6, Home (Paroles) Department, dated 9.1.2019, on par with similarly situated convicted prisoners, as illegal and arbitrary.
2. The facts in issue are as under :
The father of the petitioner was convicted under Section 302 read with Section 34 I.P.C. in S.C.No.506 of 1992 by the III Additional Sessions Judge, Guntur on 3.4.1996 and was sentenced to suffer imprisonment for life. Challenging the same, he preferred Crl.A.No.422 of 1996 before the Hon'ble High Court, which was also dismissed confirming the conviction and sentence. It is said that since 3.4.1996, the father of the petitioner was undergoing imprisonment in Central Prison, Rajamahendravaram. While things stood thus, the Government of Andhra Pradesh issued G.O.Ms.No.6, Home (Paroles) Department, dated 9.1.2019, granting special remissions to prisoners who have been sentenced to imprisonment for life on the occasion of Republic Day, laying down certain guidelines to be followed, while considering the cases of life convicted prisoners for grant of remission. He seeks to take shelter under Clause-7 of the said G.O., which postulates certain categories of 2 convicted prisoners referred to under sub-clauses (a) to (d), which deal with considering cases of convicted prisoners for grant of special remissions subject to fulfilment of certain terms and conditions as prescribed in para 8 of the said G.O.
3. Having regard to the fact that the father of the petitioner has already undergone actual sentence of 8 years, 4 months and 18 days and a total sentence of 10 years and 18 days by 26.1.2019, the cutoff date prescribed in the said G.O. and having regard to the earlier orders passed by this Court in Writ Petition No.2912 of 2019, seeks release of the father of the petitioner by extending the remission prescribed in the said G.O.
4. However, a counter came to be filed by the Deputy Superintendent of Jails, Central Prison, Rajamahendravaram, disputing the averments made in support of the writ petition and opposing the release of the father of the petitioner by extending the remission under the said G.O.
5. It is stated that since the Government has decided to review and recommend the cases of life convicted prisoners, issued guidelines in G.O.Ms.No.6, dated 9.1.2019, giving one-time exemption to consider special remission in the cases of old and decrepit prisoners as defined in Rule 321(h) of Andhra Pradesh Prison Rules, 1979 read with G.O.Ms.No.44, Home (Prisons.B2) Department, dated 16.3.2007. As the case of the petitioner falls under the purview of the condition specified at para 7(c) of G.O.Ms.No.6, dated 9.1.2019, the 4th respondent placed the matter before the Internal Committee constituted for scrutinizing the cases of Life Convicted Prisoners eligible for premature release. The Scrutiny Committee met in the Office of the Director General of Prisons & Correctional Services, A.P., Vijayawada on 22.1.2019 and observed the following :
3
i. The Medical Board Members have not certified that "the said convict is unable to commit organized crime after his release", which is one of the essential conditions of G.O.Ms.No.44, Home (Prisons.B2) Department, dated 16.3.2007.
ii. The said prisoner was convicted for life sentence in the murder case of a Sarpanch who is a public servant. Hence, the case of the said prisoner attracts barring Clause No.xiv, Para-8 of the said G.O. and hence the said convict is ineligible for grant of Special Remission.
6. Having regard to the fact that the Medical Board not certified that the convict is unable to commit organized crime after his release, which is one of the essential conditions in G.O.Ms.No.44, the committee rejected the case of the detenu herein. It is further stated that as on 26.1.2019, the convicted prisoner has undergone sentence of 9 years, 7 months and 5 days, including remand period and has not completed 10 years of sentence including remission as required under the G.O. It is said that the convicted prisoner was released on 30 days parole on 7.6.1999 vide G.O.Rt.No.266, dated 6.2.1999, which was extended up to 7.12.1999 vide G.O.Rt.No.1714, dated 7.7.1999. Though he was due for surrender on 8.12.1999, the convicted prisoner failed to do so and he was apprehended on 25.3.2014 i.e., after 14 years, 9 months and 24 days. Apart from that it is also stated that since convicted prisoner is convicted in a murder of public servant, he is ineligible for grant of special remission as per the guidelines issued in G.O.Ms.No.6, dated 9.1.2019, more particularly para-xiv of the guidelines in category-II. Having regard to the factors, namely, (i) overstaying on parole for a period of 14 years, 9 months and 24 days; (ii) Medical Board not certifying that the said convict is unable to commit organized crime after his release and (iii) since he is involved in a murder of public servant, states that the petitioner is not entitled for any benefit under the said G.O.
7. At the outset, it is to be noted that one of us, HAC,J., appeared on behalf of the prisoner herein, in the criminal appeal filed by him, 4 challenging the conviction and sentence imposed upon him by the Sessions Court. However, both the learned counsel for the petitioner and Sri Bala Swamy, learned Government Pleader attached to the office of the learned Advocate General, reported no objection for hearing and disposal of this matter by this Bench.
8. In order to appreciate the rival contentions, it will be useful to refer to clause-7 of the G.O.Ms.No.6, Home (Paroles) Department, dated 9.1.2019, which is as under :
"7. Accordingly, relaxing the orders issued in the reference 1st read above, the Government hereby issues the following guidelines giving one time exemption to consider special remission 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 of their good behavior, subject to conditions as specified at para-8 below:-
a) Cases of convicted women prisoners sentenced to imprisonment for life, including those governed by Section 433-A of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) who have undergone an actual sentence of 5 years including remand period and total sentence of 7 years including remission as on 26.01.2019 shall be considered for release.
b) Cases of convicted male prisoners sentenced to imprisonment for life including those governed by Section 433-A of the Code of Criminal 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 26-01-2019 shall be considered for release.
c) Cases of old and decrepit prisoners as defined in Rule 321(h) of Andhra Pradesh Prison Rules, 1979, read with G.O.Ms.No.44, Home (Prisons.B2) Department, dated 16.03.2007 shall be considered for release.
d) Cases of convicted prisoners sentenced to imprisonment for life including those governed by Section 433-A of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) aged more than 65 years and have undergone an actual sentence of 5 years including remand period and total sentence of 7 years including remission as on 26.1.2019 shall be considered for release."
9. Clause 7(b) states that the cases of convicted male prisoners sentenced to imprisonment for life including those governed by Section 5 433-A of the Code of Criminal Procedure and who have undergone an actual sentence of 7 years including remand period and total sentence of 10 years including remission as on 26.1.2019 shall be considered for release. As per Clause 7(c) cases of old and decrepit prisoners as defined in Rule 321(h) of Andhra Pradesh Prison Rules, 1979, read with G.O.Ms.No.44, Home (Prisons.B2) Department, dated 16.03.2007 shall be considered for release.
10. Insofar as applicability of Clause 7(b) is concerned, it has been specifically stated in the counter that as on 26.1.2019 the detenu/prisoner has not completed 10 years of total sentence including remission. However, the details annexed to the counter filed show that the actual sentence served by him is 7 years, 11 months and 5 days and total sentence served is 9 years, 7 months and 5 days. Though the petitioner has fulfilled the first part of clause-7(b) namely, an actual sentence of 7 years including remission, but he failed to fulfil the second part of the said clause which prescribed that the convict has to undergo total sentence of 10 years including remission as on 26.1.2019. This averment in the counter is not disputed by way of reply by the petitioner. Though in the affidavit it is stated that he has completed 10 years of total sentence, but no material has been placed on record in support of its plea and when the same was pointed out, the counsel for the petitioner took us to clause-7(c) and plead that the case of the petitioner falls under Clause 7(c) having regard to the fact that he is aged about 65 years and suffering from incurable Hemiplegia (left) and ischemic heart disease and that he needs assistance to perform daily activities throughout his life. As stated above, Section 7 (c) states that cases of old and decrepit prisoners as defined in Rule 321(h) of Andhra Pradesh Prison Rules, 1979, read with G.O.Ms.No.44 shall be considered for release. The fact that the disease with which the petitioner is suffering comes under the category of pre-mature release as defined in Rule 321(h) of Andhra 6 Pradesh Prison Rules, 1979 read with G.O.Ms.No.44, dated 16.3.2007, is not in dispute. In fact, the proceedings dated 19.1.2019 issued by the Superintendent, Government General Hospital, Kakinada to Superintendent of Jails, Central Prison, Rajamahendravaram indicates the same, but G.O.Ms.No.44, which has to be read along with the Prison Rules, states that the Medical Board should certify that he is incapable of doing any real work and would appear to be unable to commit of organized crime after his release, provided such prisoner completes five years of actual sentence and seven years of total sentence as recommended by the National Human Rights Commission. The prisoner satisfied the requirement of completion of five years actual sentence and 7 years of total sentence, but the Medical Board in its report has not certified that the convict is unable to commit organized crime after his release. The detenu cannot be found fault for the omission made by the Medical Board in the proceedings issued by them. On the one hand it is said that the case of the petitioner falls under Rule 321(h) read with G.O.Ms.No.44, dated 16.3.2007 with regard to the ailment with which he is suffering, but on the other hand, in the certificate issued, the Medical Board failed to mention that the convict is unable to commit organized crime after his release. The detenu cannot be penalized by not extending the remission on the ground that Medical Board has not certified that the said convict being unable to commit organized crime after his release. But, however, it would not be proper for us to say basing on the material available that he will not commit organized crime after his release. We cannot also decide as to whether the ailment with which he is suffering would prevent him from committing organized crime. It is for the authorities there to decide. Hence, the prison authorities/respondents shall present the alleged detenu before the Medical Board and then obtain the opinion of the Board as to whether he fulfils all the requirements of G.O.Ms.No.44, dated 16.3.2007.
7
11. Though an attempt was made that the detenu is not entitled for release under clause (xiv) of Category II, since he was convicted of murder of public servant while performing duty, the material available on record indicates that he has committed the murder of a public servant, but it was not while the public servant discharging of his official duty. Case of the prosecution is that on 14.11.1990 at about 5.00 PM A7 and A10 went to the house of A2, met A1, A3, A10, A11 and A12 and there hatched a conspiracy to do away the deceased. On the next day, D2 visited D1 at his hotel named, Aditya for seeking his help in getting himself re-appointed as Village Officer. On 15.11.1990 at about 7.00 PM, while D2 and L.W.3 were in the Hotel Aditya along with D1 and when they reached very close to the house of D1, accused Nos.1 to 21 attacked the deceased with knives and indiscriminately stabbed the deceased Nos.1 and 2. Therefore, it cannot be said that the act of the accused in killing the public servant was while the public servant was performing his official duty.
12. Having regard to the above, the present Writ Petition is disposed of directing the authorities to produce the detenu before the Medical Board, who shall give a fresh certificate as to the ailment with which the convicted prisoner is suffering and also as to whether he would be in a position to commit organized crime after his release, since the earlier certificate given is silent on that aspect. No order as to costs.
Consequently, Interlocutory Applications pending, if any, shall stand closed.
_____________________________________________ ACTING CHIEF JUSTICE C.PRAVEEN KUMAR ________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date : 28.9.2019.
8skmr