Andhra HC (Pre-Telangana)
Pratapaneni Papa Rao And Ors. vs The Government Of A.P. Rep. By Its Prl. ... on 19 September, 2000
Equivalent citations: 2000(2)ALD(CRI)562, 2000(5)ALT667
Author: Ramesh Madhav Bapat
Bench: Ramesh Madhav Bapat
ORDER
1. The petitioners herein have filed the present writ petition invoking the jurisdiction of this Court under Article 226 of the Constitution of India with a prayer to issue an appropriate writ or direction more particularly one in the nature of Writ of Habeas Corpus, directing the respondents herein to produce the petitioners herein before this Court and they may be directed to release the petitioners forthwith after declaring that the detention of the petitioners is illegal and void.
2. The writ affidavit filed by the 1st petitioner herein shows that he is a life convict, who was tried by the Principal Sessions Judge, Khammam in Sessions Case No.121 of 1988 for the offences punishable under sections 148, 452 and 302 read with section 149 IPC along with 13 other accused. Some of them were convicted and some of them were acquitted by the learned Sessions Judge in the said case. In all 14 prisoners were accused in the Sessions Case against whom the order of sentence of life imprisonment was passed by the learned Sessions Judge. Against the said order of conviction and sentence, Criminal Appeal No.933 of 1989 was preferred before this Court by the accused. This Court by its judgment dated 15-3-1990 acquitted the petitioners herein and four others on all charges while confirming the order of conviction against A-4 to A-6. A-4 to A-6 in the said sessions case preferred Criminal Appeal No.411 of 1991 in the Supreme Court of India. A-8 and A-10 in the said sessions case preferred Criminal Appeal No.412 of 1991. The State preferred Criminal Appeal No.413 of 1991 so far as the petitioners herein is concerned. The State did not prefer an appeal against the acquittal of A-5, A-11, A-12 and A-14. All the three appeals were clubbed and heard by the Hon'ble Supreme Court of India. The Supreme Court of India by its judgment dated 8-7-1997 was pleased to dismiss Criminal Appeal Nos.411 and 412 of 1991 while allowing Criminal Appeal No.413 of 1991 preferred by the State. Therefore, the finding of the judgment of this Court in Criminal appeal No.933 of 1989 was reversed and that judgment of the Sessions Judge was confirmed by the Supreme Court of India by its judgment dated 8-7-1997. Thus, the petitioners herein had to surrender for undergoing the life imprisonment in Central Prison, Warangal.
3. It is the further case of the petitioners herein that while they were undergoing sentence, the Government of Andhra Pradesh issued G.O. Ms. No.18, Home (Prisons-C) Department, dated 25-01-2000 granting remission to the prisoners on the occasion of "50th Anniversary of India becoming a Republic" by exercising the powers conferred by Article 161 of the Constitution of India. The G.O., passed by the Government reads as under:
"GOVERNMENT OF ANDHRA PRADESH ABSTRACT Prisoners - Grant of remission to prisoners on the occasion of 50th anniversary of India becoming a Republic - Orders- Issued.
Home (Prisons-C) Department
G.O.Ms.No.18 Dated 25-01-2000
Read the following:-
1.From the Inspector General of Prisons & Director of Correctional Services, A.P. Hyderabad Lr. No.888/SA2/99 dated 24-12-1999.
2.From the Inspector General of Prisons & Director of Correctional Services, A.P. Hyderabad Lr. No.888/SA2/99 dated 07-01-2000.
3.From the Inspector General of Prisons & Director of Correctional Services, A.P. Hyderabad Lr. No.888/SA2/99 dated 18-01-2000.
O R D E R:
1. 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 26-01-2000 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 of which the Executive power of the State extends, subject to the conditions specified in paras (2) & (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 26-01-2000.
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 26-01-2000.
C) All 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 26-01-2000.
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:-
1.Prisoners convicted and sentenced by courts situated outside the State of A.P.
2.Prisoners convicted of offences against laws relating to a matter to which the Executive power of the Union extends .
3.Prisoners convicted under Narcotic Drugs and Psychotropic Substances Act, the Scheduled 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.
4.Prisoners convicted for crimes against women such as sections 376 and 354 of IPC, while being sentenced to imprisonment for life.
5.Prisoners convicted for the offences of theft, robbery, decoity and receiving stolen property (ie., sections 379 to 411 IPC while being sentenced to imprisonment for life.
6.Prisoners who have over stayed on parole/furlough for cumulative periods in exercise of 10 years and,
7.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 PRINCIPAL SECRETARY TO GOVERNMENT To The Inspector General of Prisons & Director of Correctional Services, A.P. Hyderabad.
The Superintendents of Central Prisons, Hyderabad, Warangal, Moula Ali, Cuddapah, Rajahmundry and Visakhapatnam.
The Superintendents of other District Jails.
The Director of Information & Public Relations, A.P. Hyderabad.
The All State Governments.
The Government of India, Ministry of Home Affairs, New Delhi."
5. With this G.O. on record, it was prayed by the petitioners herein that in spite of passing G.O., the petitioners have not released from the jail taking a view that the G.O., is not applicable to the petitioners herein. Therefore, the petitioners herein contended that the action of the respondents herein in not releasing the petitioners from the prison is illegal and invalid.
6. Therefore, it was prayed that the Hon'ble Court may be pleased to issue an appropriate writ or direction mostly one in the nature of Writ of Habeas Corpus directing the respondents herein to produce the petitioners before this Court and they may be directed to release the petitioners herein forthwith.
7.On presentation of the writ petition, notices were issued to the respondents. Respondents filed their counter. The counter was sworn in by Mr. V.R.Joshi, Additional Inspector General of Prisons. In the Counter it is stated that the petitioners after acquittal by this Court were freely moving. The G.O., is applicable only to the convicts who were undergoing imprisonment and were lodged in the Central Prisons as on 26-01-2000. The petitioners herein did not fulfil the conditions mentioned in the above G.O. Therefore, it was prayed that the writ petition filed by the petitioners be dismissed.
8. Though the writ affidavit is filed by one of the petitioners, in fact, this writ petition is filed by Eight (8) convicts, who were lodged in the central prison at Warangal. In the counter-affidavit the respondents have given a chart showing the details of each convict admitted in the jail and the period for which they had undergone the imprisonment. The table reads as under:
By reading the pleadings of the parties, the only point arises for our consideration whether the G.O., in question is applicable to the present set of facts.
9. The learned counsel Mr. C.Padmanabha Reddy appearing on behalf of the petitioners herein submitted at the Bar that the G.O., in question is applicable to the case of the petitioners herein. It was contended by the learned counsel for the petitioners herein that though the prisoners were not in jail from the date of acquittal by the High Court till the date of judgment was reversed by the Apex Court, the said period has to be counted for the purposes of giving benefit of G.O. to the petitioners herein holding that they were in jail for all purposes. In order to support his contention, the learned counsel relied upon a ruling reported in SATISH KUMAR AHUJA V. STATE OF HARYANA1. The learned Single Judge of the said Court held as under:
"6.Thus, the judgment of the Hon'ble Supreme Court shall relate back to the date of the acquittal of the petitioner when he was acquitted by the High Court on 25-11-1981. The counsel for the respondents made an effort to distinguish the observations of the Hon'ble Supreme Court made in MARU RAM's case (supra) by stating that High Court is not a trial court and that the observations made by the Hon'ble Supreme Court are made in a different context while interpreting the provisions of Section 433-A of the Cr.P.C. It is correct that the Hon'ble Supreme Court in para No.56 of the judgment quoted above has used the words 'trial court' but I feel that the Supreme Court wanted to say that once the appellate court interferes into the judgment of the courts below, the judgment of the appellate court shall relate back to the date when the benefit of trail/offence was given to the offender. Here the benefit of acquittal was given to the petitioner by the High Court. It was not on the fault of the petitioner when he was let off from the jail on account of the acquittal which he secured. The rights of the petitioner remained in a fluid stage on account of the right given to the State and to the complainant party to file an appeal before the Supreme Court against the judgment of the High Court. If the Hon'ble Supreme Court has interfered in the judgment of the High Court and has decided to convict and sentence the appellant, the effect of the judgment of the Supreme Court would certainly be as if the Hon'ble High Court could never acquit the person. Thus, this court is of the opinion that though the petitioner was not serving the actual sentence right from 27-11-1981 onwards, but for the purpose of remissions he can certainly bank upon the government orders because his acquittal ultimately has been interfered by the Apex Court."
10. The learned counsel also relied upon another ruling reported in MARU RAM vs. UNION OF INDIA & OTHERS2 in which their Lordships were pleased to hold as under:
"Higher the power, the more cautions would be its exercise. This is particularly so because S.433A has been passed by the Parliament on being sponsored by the Central Government itself. It is, therefore, manifest that while exercising the powers under Articles 72 and 161 of the Constitution neither the President, who acts on the advice of the Council of Ministers, nor the State Government is likely to overlook the object, spirit and philosophy of S.433A so as to create a conflict between the legislative intent and the executive power."
11. While rebutting the aforesaid arguments, the learned Govt. Pleader Ms.J.Vijayalaxmi attached to the Office of the learned Advocate-General appearing on behalf of the respondents pointed a ruling reported in STATE OF HARYANA & Others vs. MOHINDER SINGH3. In para (18) their lordships were pleased to hold as under:
"When a circular specifically applies to the prisoners, who are undergoing sentence and are confined in jail and even to those who are on parole or furlough we cannot extend this circular to convicts who are on bail and thus carve out another category to which court is not entitled under section 432 of the Code. As noted above, validity of the circular has not been challenged on any other ground"
12.Considering the contentions and rival contentions raised by both the parties, we are of the considered view that the rulings cited by the learned counsel Mr. C.Padmanabha Reddy are not applicable in the present set of facts.
13.As stated earlier, the Hon'ble High Court was pleased to acquit them. It means that all the petitioners herein were freely moving. They were not undergoing imprisonment for life, which was imposed to them by the Sessions Court. The State preferred an appeal and thereafter the judgment of the High Court was reversed by the Supreme Court and that of the Sessions Court was restored. From that moment the petitioners herein surrendered and they were undergoing imprisonment. It means that they were convicted and made to undergo sentence of imprisonment for life after the Supreme Court pronounced the judgment. Though the convictions and sentences passed by the Sessions Judge were restored by the Supreme Court, at the most. it can be said that during the pendency of the appeal before the High Court, if they were in prison that period can be counted for the purposes of years of imprisonment undergone by them, but once they were acquitted by the High Court legally it means that whatever the sentence of imprisonment they had undergone is wiped out and they were free citizens of India. The G.O., in question specifically laid down certain conditions for granting remission to the prisoners. If those conditions are not fulfilled, the prisoners are not entitled for the benefit of the said G.O. The parole and the bail are not synonymous when a person is acquitted of an offence. We can say parole is a sort of leave granted to the convict on certain terms and conditions. Even the bail is granted on certain terms and conditions. In both the cases, the order of conviction and sentence imposed upon the convict is hanging on his head. If the convict is acquitted by the appellate court, the order of conviction and sentence is not hanging on his head, he can move as a free citizen of India. Therefore, the parole and bail on one side cannot be equated with acquittal. The present G.O. is meant for giving benefits of certain terms and conditions to the convicts, who are undergoing the sentence and who are actually lodged in the prison. Therefore, it will not be correct to say that the petitioners herein are entitled to the benefits of G.O. in question. Therefore, we do not find any reason to interfere with the order passed by the respondents in not releasing the petitioners herein by giving the benefit of the said G.O.
14.Therefore, we dismiss the writ petition. No costs.