Andhra HC (Pre-Telangana)
Indian Association Of Lawyers (Andhra ... vs The Principal Secretary, Home ... on 6 September, 1993
Equivalent citations: 1993(2)ALT(CRI)528, 1994CRILJ533
JUDGMENT S. Parvatha Rao, J.
1. This Writ Petition is filed in public interest by the Indian Association of Lawyers (A.P. Chapter), represented by its General Seceatary, Sri C. Damodar Reddy, an advocate. In the affidavit given in support of the Writ Petition, Sri C. Damodar Reddy states that nine life convicts named in the Schedule are under-going their sentence in the Central Jail, Warangal even though they are entitled to be released as per G.O.Ms. No. 580, Home (Prisons-C) Department dated 20-10-1984.
2. When this writ petition came up before a Division Bench of this Court, to which one of us i.e., M. N. Rao, J., was a party, Sri Ravinder Rao, the learned counsel representing the learned Advocate General, contended that the said nine prisoners were not released because the said G.O.Ms. No. 580 was not attracted to them, on the basis of the judgment of this Court in Ramulu v. State of Andhra Pradesh, (1985) 1 APLJ 361 : (1985 Cri LJ 1679). The Division Bench observed that this Court in Ramulu's case relied on the decision of the Supreme Court in Maru Ram v. Union of India, and that in view of the latest decision of the Supreme Court in Ashok Kumar v. Union of India, , the decision of this Court in Ramulu's case (1985 Cri LJ 1679) (which was rendered by a Division Bench) required reconsideration by a Full Bench. That is how this matter has come up before us for resolution.
3. The matter varily turns on the correct understanding and interpretation of the contents of the said G.O.Ms. No. 580 dated 20-10-1984. It was issued under S. 432 of the Code of Criminal Procedure, 1973 (herein-after referred to as 'the Code') granting remission of sentences to certain categories of convicts. The said G.O. to the extent relevant is as follows :-
"ORDER On the occasion of the anniversary of the Formation of Andhra Pradesh State on 1st November, 1984 and the restoration of democratic rule in the State the Government have decided to grant remission to certain categories of prisoners who have been convicted for offences against laws relating to matters to which the Executive Powers of the State extends.
2. Accordingly in exercise of the powers conferred by S. 432 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) the Government is pleased to remit and reduce the sentences of the following categories of prisoners in the State who have been convicted by Civil (sic) Courts of Criminal jurisdiction on the scales specified against each; except to the extent specified in paragarph 3 below :
(a) The Prisoners sentenced for the life imprisonment and not governed by S. 433(A) Criminal Procedure Code and who have completed 7 years of actual sentence and 10 yeras of total sentence including remission shall be released.
(b) The other lifes not governed by S. 433(A), Criminal Procedure Code and who have undergone a total sentence of 5 years shall be released.
(c) Long term prisoners, other than lifers governed under S. 433(A), Criminal Procedure Code who have completed actual sentence of 5 years as on 31-10-1984 shall be released.
(d) All prisoners with a sentence of one year and above and not governed by (a), (b), (c) above shall be granted a special remission of one month for each year of sentence awarded.
(e) All prisoners with a sentence below one year shall be granted a special remission of 15 days.
(f) All prisoners, other than life convicts, who are 65 years of age and above as on 31-10-1984 shall be released.
xxx xxx xxx xxx
4. The prisoners who are eligible for release under paragraph 2 above shall be released on 1st November, 1984.
5. The remission granted in paragraph 2 above is in addition to the remission not admissible to prisoners and granted to them on other important occasions earlier.
6. The Director General and Inspector Genral of Prisons is requested to take action accordingly and submit to Government a list of prisoners released from various Jails and a separate list of prisoners who are granted special remission in accordance with the above orders, in the pro forma given in the Annexure to this order in triplicate for issue of formal orders by Government under S. 432, Criminal Procedure Code."
4. The question is whether the nine prisoners whose cause is championed by the petitioner-association, are entitled to be released under the said G.O.Ms. No. 580. It is not in dispute that they have been sentenced to suffer imprisonment for life prior to the coming into forec of S. 433A of the Code i.e., prior to 18-12-1978, and that therefore they are not governed by S. 433A of the Code. They were convicted and sentenced to imprisonment for life by the learned Sessions Judge at Warangal in 4 Sessions Cases under the judgments dated 28-6-1976 and 7-2-1977. The appeals preferred by them before this Court against the said convictions and sentences were dismissed on 31-3-1978 and this Court confirmed the same. They approached the Supreme Court and the Supreme Court granted special leave to them and admitted Criminal Appeals Nos. 380 to 382 of 1979 preferred by them. Pending the said matters, the Supreme Court directed their release on bail on 4-2-1980. Thus when G.O.Ms. No. 580, dated 20-10-1984 was issued, they were not in prison. However, the Supreme Court dismissed their appeals on 9-8-1991 and thereafter they were lodged in the Central Jail at Warangal. The affidavit in support states that the said nine convicts surrendered themselves after the judgment of the Supreme Court dismissing their appeals. However, in the counter-affidavit of the 3rd repondent, it is stated that they were "caught and lodged in the Jail after the Supreme Court convicted them on 9-8-1991". In the counter affidavit filed by the 3rd respondent, the relevant facts regarding the said nine prisoners including the actual sentence undergone by them till they were released on the bail granted by the Supreme Court, and the remissions to which they were entitled to as per the earlier G.O.Ms. No. 557 dated 30-10-1980, are stated as follows :-
"LIST OF NINE OLD CONVICTED PRISONERS WHO ARE NOT CONVERED BY S. 433-A Cr.P.C. OF CENTRAL PRISON, WARANGAL.
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Sl. Con- Names of Sentenc- Date of Remand Actual Remis- Total No. vict convict ing Court convic- period sentence sion sentence No. with SC. & tion. undergone entitl- undergone father's CC. No. till they ed as as on name. were rel- per G. 20-10-84 eased on O. Ms. as per Supreme No. 557/ this Court 30-10- state- bail. 80. ment. ------------------------------------------------------------------------ 1. 8017 Nimmana S.J.Wgl. Mohan SC. 59/75. Reddy. 28-6-76 0-9-25 3-07-07 01-07-25 6-0-27 S/o.Papi Reddy.
2. 7467 Puttapa- rthi Ch- S.J.Wgl. andra SC. 58/75 -do- 0-9-29 3-07-07 01-07-25 6-1-1 Mouli, S/o. Siddaiah.
3. 8018 Pottapa- rthi -do- -do- 0-9-29 2-07-07 01-07-25 6-1-1 Chakrapani S/o. Siddaiah.
4. 7425 Puttapa- rthi Pan- -do- -do- 0-06-24 3-07-05 01-07-25 5-9-24 durangam S/o. Chandraiah.
5. 8556 Ravula alias -do- -do- 0-11-12 3-07-05 01-07-25 6-2-12 Pinninti alias Peddulla Laxma Reddy, S/o. Yellaiah Reddy.
6. 7947 Ravula Venkat -do- -do- 0-03-02 3-07-07 01-07-25 5-6-4 Reddy SC. 29/76 S/o. Veera Reddy.
7. 8288 Vaddepall Mohan -do- -do- 0-03-02 3-07-07 01-07-25 5-6-4 Reddi S/o. Sidda Reddy.
8. 7585 Ravula Govinda Reddi S.J. Wgl. 7-2-77 0-06-25 3-11-27 01-07-25 5-0-17 S/o. SC. 65/76 China Ram Reddy.
9. 8063 Vanga Narayan S.J. Wgl. Reddy SC. 78/76 7-2-77 0-03-28 2-11-27 01-07-25 4-11-20. S/o. Raji Reddy Thus, from the counter affidavit of the 3rd respondent itself it is evident that all of them except convict No. 8063 i.e., Vanga Narayan Reddy had undergone a total sentence of more than 5 years as on 20-10-1984. Sri C. Padmanabha Reddy submits that all the nine convicts are to be given remission to the extent of 3 months under G.O.Ms. No. 21 of Home (Prisons-C) Department dated 20-1-1983 in which case Vanga Narayana Reddy should be shown as having undergone a total sentence exceeding 5 years as on 20-10-1984. The said G.O.Ms. No. 21 states that in exercise of the powers conferred by S. 432 of the Code, "the Government is pleased to remit the sentence to the extent of 3 months imposed on all prisoners who have been convicted by the Courts of criminal jurisdiction in the State for offences against laws relating to the matters to which the executive power of the State extends and undergoing imprisonment save to the extent specified" and that "the prisoners who are eligible for release with reference to special remission" shall be released on 26-1-1983. The nine convicts with whom we are concerned are not in the excluded categories of prisoners specified in the said G.O.Ms. No. 21, but they were not undergoing imprisonment on 20-1-1983, the date of the said G.O. This requirement of undergoing imprisonment is not there in G.O.Ms. No. 557 dated 30-10-1980 and G.O.Ms. No. 580 dated 20-10-1984. Therefore they cannot get the benefit of the said G.O.Ms. No. 21.
5. From the facts narrated above, it is obvious that the nine convicts in question cannot claim release under Clause (a) of para 2 of the said G.O.Ms. No. 580. The question now narrows down to whether eight of them i.e., excluding convict No. 8063, ought to have been released under Clause (b) of the said para 2 because they are 'the other lifers not governed by S. 433A' of the Code who have undergone a total sentence of 5 years. On a plain, natural and reasonable reading of the said para 2, we do not find any difficulty in answering this question. The obvious meaning to be given to the expression 'the other lifers' in Clause (b) is lifers other than those falling under Clause (a). Though Clause (a) uses the expression 'prisoners sentenced for the life imprisonment', that expression means the same as 'lifers'. The dictionary meaning of the word 'lifer' is 'a person sentenced for life'. In other words the expression 'lifers' and 'life convicts' mean the same a prisoners sentenced to life imprisonment. In Gopal Vinayak Godse v. State of Maharashtra, a Constitution Bench of the Supreme Court held that a sentence of imprisonment for life must prima facie be treated as "imprisonment for the whole of the remaining period of the convicted person's natural life". Krishna Iyyer, J., in Maru Ram's case, used the expression 'lifers' describing it as a 'vogue word', for brevity for describing life convicts i.e., persons sentenced to imprisonment for life.
6. However, Ramulu's case (1985) 1 APLJ 361 : (1985 Cri LJ 1679) strikes a contrary note. In that case, a Division Bench of this Court considering the same G.O.Ms. No. 580 dated 20-10-1984 held as follows (at p. 1681 of Cri LJ) :-
"'The other lifers' mentioned in Clause 2(b) are those who, in the first instance, are sentenced to death and which sentence is commuted under S. 433, Criminal Procedure Code to one of imprisonment for life. Such prisoners whose death sentence is commuted to life imprisonment are 'the lifers' to whom Clause 2(b) applies. That there are two such categories of lifers becomes clear from a reading of S. 433A. In Maru Ram v. Union of India (1980 Cri LJ 1440) (SC) (supra) also this distinction is noted; and their Lordships observed.
'All the petitioners belong to one or other of two categories. They are either sentenced by Court to imprisonment for life in cases where the conviction is for offences carrying death penalty as a graver alternative or are persons whom the Court has actually sentenced to death which has since been commuted by the appropriate Government under S. 433(a) of the Criminal Procedure Code to life imrpisonment. The common factor binding together these two categories of 'Lifers' (if we may use this vogue word for brevity) is obvious.' It is, therefore, clear that while Clause 2(a) applies to the prisoners sentenced to life imprisonment by the Court, and who are not governed by S. 433A, Clause 2(b) applies to the 'other lifers' other than those mentioned in Clause 2(a) and also not governed by S. 433A. The petitioners who are sentenced to life imprisonment by the Court, do not come under the category of 'the other lifers' contemplated under Clause 2(b), but they come under the category in Clause 2(a). Therefore, they are not entitled to the benefit of Clause 2(b) and since they have not completed 7 years of actual sentence, they are also not entitled to be released under Clause 2(a)."
We regret that we are unable to persuade ourselves to agree with the interpretation given to Clause (b) of para 2 by the Division Bench. We do not see why Clause (a) of para 2 should be confined to prisoners sentenced to life imprisonment by a Court when there is no such limitation in the said Clause - the said Clause only says 'the prisoners sentenced for life imprisonment' and not 'the prisoners sentenced for life imprisonment by Courts'. Thus, prisoners whom the Court has actually sentenced to death which has since been commuted by the appropriate Government under S. 433(a) of the Code to life imprisonment also fall within the expression 'prisoners sentenced for the life imprisonment' in Clause (a) of the said para 2 of the G.O. In this connection it has to be noticed that the language of S. 433A of the Code is more explicit and unambiguous when it refers to "where a sentence of death imposed on a person has been commuted under S. 433 into one of imprisonment for life" and the Supreme Court in Maru Ram's case, has elaborated by categorising such persons as "persons whom the Court has actually sentenced to death which has since been commuted by the appropriate Government under S. 433(a) of the Criminal Procedure Code for life imprisonment" - in the case of such persons it is obvious that the sentence of imprisonment for life is not imposed by the Court but nonetheless they are persons sentenced for life imprisonment even though the imposition of sentence in thier case is not by the Court and they have to undergo the sentence for life imprisonment because of the commutation of the death sentence to one of imrpisonment for life : it cannot be said that those persons do not fall within the category of persons sentenced for life imprisonment, which is the expression used in Clause (a) of para 2 of the G.O. in question. We are afraid that the Division Bench is not right in concluding that this category of lifers i.e., those on whom a sentence of death is imposed which has been subsequently commuted to one of imprisonment for life, do not fall under the said Clause (a). If that is so, the expression 'the other lifers' in Clause (b) of para 2 of the said G.O. cannot be restriced only those who are sentenced to life imprisonment by virtue of commutation of the sentence of death imposed on them to one of imprisonment for life.
7. We are supported in this view by the recent decision of the Supreme Court in Ashok Kumar v. Union of India, . In that case, the Supreme Court while observing that "the effect of S. 433A (of the Code) is to restrict the exercise of power under Ss. 432 and 433 (of the Code) by the stipulation that the power will not be so exercised as would enable to two categories of convicts referred to in S. 433A to freedom before they have completed 14 years of actual imprisonment held as follows (para 8) :-
"Such prisoners constituted a single class and have, therefore, been subjected to the uniform requirement of suffering at least 14 years of internment."
Which means, that there can be no distinction made between those two categories of lifers referred to in S. 433A i.e., (i) those on whom a sentence of imprisonment for life is imposed on conviction for an offence for which death is one of the punishments provided by law; and (ii) persons on whom a sentence of death is imposed which has been commuted under S. 433 into one of imprisonment for life. As per the latest judgment of the Supreme Court in Ashok Kumar's case when those two categories of prisoners constitute a single class, it is difficult to accept that they can be differentiated for the purpose of exercising power under S. 432 of the Code and for granting remissions or suspensions of sentences. We find it difficult to accept the view that those persons on whom death sentence has been imposed which has been later commuted to imprisonment for life, can be more leniently treated than persons on whom sentence of imprisonment for life only has been imposed even though death penalty is provided by law for the offences for which they have been convicted.
8. Significantly in para 8 of the counter affidavit of the 3rd respondent it is stated :
"Clause (b) of para 2 does not refer to convicts whose death sentence was commuted to life imprisonment" and again in para 6 it is stated :
"Benefit under Clause (b) of para 2 was given only to such prisoners who were originally sentenced to death and whose death sentence was commuted to life imprisonment is not true and correct. I submit that this allegation is made only to gain sympathy of this Honourable Court".
Thus, even the 3rd respondent does not contend that Clause (b) of para 2 of the G.O. refers to convicts whose death sentence was commuted to life imprisonment.
9. We are also of the view that the eight convicts in question can rely on Clause (c) of para 2 of G.O. Ms. No. 580 because they fall within the expression 'long term prisoners'. It is appropriate to look again at the said Clause (c) in this connection. It is as follows :-
"(c) Long term prisoners, other than lifers governed under S. 433A, Criminal Procedure Code who have completed actual sentence of 5 years as on 31-10-1984 shall be released."
Only lifers governed under S. 433A are excluded which means lifers not governed under S. 433A are included in the expression 'long term prisoners'. We are supported in this view by the judgment of the Supreme Court in G. M. Morey v. Government of Andhra Pradesh, wherein Clause (a) of para 2 of G.O.Ms. No. 557 of Home (Prisons-C) Department dated 30-10-1980 was examined and interpreted as including life convicts who are not governed by S. 433A of the Code. Clause (a) of the said G.O.Ms. No. 557 is as follows :-
"(a) Except the prisoners sentenced for life who are governed by S. 433A, Cr.P.C. all other convicts who have undergone a total sentence of 5 years as on 31-10-1980 shall be released."
Seven life convicts claimed that they had undergone more than 5 years imprisonment and that they were therefore entitled to be released in terms of the said G.O. A writ petition filed on their behalf was dismissed by this Court on the ground that the G.O. had no application to 'life convicts'. On appeal, the Supreme Court held as follows (paras 2 and 3) :-
"If these seven convicts are not governed by S. 433A their cases are directly attracted by Clause (a) of para 2 of the G.O. Under Clause (a) all convicts who have undergone a total sentence of five years as on October 31, 1981 except 'prisoners sentenced for life and who are governed by S. 433A' have to be released. This means that 'life convits' who are governed by S. 433A, Criminal P.C. are not to be released even if they have undergone a total sentence of five years as on October 31, 1980. All others are to be released. Therefore, life convicts who are not governed by S. 433A, Criminal P.C. and who have under-gone a total sentence of five years are entitled to be released.
The submission of the learned counsel for the State was that if the whole of the G.O. was read together it will be clear that all 'life convicts' are to be excluded from the benefit of the G.O. Obviously not. If that was so there was no need to refer to those 'who are governed by S. 433A', in Clause (a) of para 2 of the G.O. According to the learned counsel the expression 'who are governed by S. 433A, Cr.P.C.' was merely descriptive of prisoners sentenced to life imprisonment. We cannot agree. The word used in Clause (a) is 'governed' and not 'described' or 'mentioned'."
Clasue (c) of para 2 of G.O. Ms. No. 580 has also to be interpreted in the same manner. So interpreted, the said Clause (c) means that 'lifers' who are governed under S. 433A of the Code only are not to be released even if they have completed actual sentence of 5 years as on 31-10-1984 and all other long term prisoners are to be released. On this basis also the eight convicts in question before us have to be released because they satisfy the requirements of the said Clause (c) for being released.
10. We are aware that our interpretation of Cls. (b) and (c) of para 2 of the said G.O.Ms. No. 580 would lead to the telescoping of the category of lifers covered by Clause (a) of the said para 2 into the category of lifers covered by the said Clause (b) and also the telescoping of the said two categories of lifers into the category of long term prisoners covered by the said Clause (c) and in that sense the separate provision for the release of lifers covered by Cls. (a) and (b) becomes otiose. But that cannot deter us from giving the obvious and natural meaning and effect to the said Clauses. We can only observe that in matters of this nature, the authorities concerned should be very careful and concerned about adopting precise and unambiguous language in issuing G.Os. because they relate to convicted prisoners sentenced to various terms of imprisonment including life imprisonment and they involve the liberty of the individual.
11. The only other aspect that remains to be considered is the contention of Sri Ravinder Rao based on Memo No. 693/Pri.C/86-3 dated 7-8-1987 issued by the Additional Secretary to Government to the Director General and Inspector General of Prisons and Director of Correctional Services, Hyderabad which is as follows :-
"The Director General and Inspector General of Prisons and Director of Correctional Services, Hyderabad is informed that the question of granting remission to prisoners on bail arises only in respect of those that have been convicted and sentenced when an appeal against such conviction and sentence is pending. According to sub-section (4) of S. 389 of Cr.P.C. 1973 that when the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he was so sentenced.
In view of this when a person who has been convicted and sentenced, when on appeal, such conviction and sentence is pending, is on bail, the remission granted in G.O.Ms. No. 580, Home (Prison-C) Department dated 20-10-1984 does not apply to such person in view of the fact that such person cannot be considered to be a person who was undergoing or who has undergone sentence on or before the issue of the orders."
The learned counsel submits that in view of this Memo the remission granted in the said G.O.Ms. No. 580 does not apply to lifers released on bail pending appeal against their conviction and sentence because they were not undergoing the sentence at the time when the said G.O. was issued. We are unable to accept this contention. The said Memo was not issued under S. 432 of the Code. It does not purport to amend or modify the said G.O.Ms. No. 580. Even otherwise, S. 432 does not contemplate or empower the issuance of such clarification. Apart from this, the said memo was issued nearly 3 years after the said G.O.Ms. No. 580 when under para 4 of the said G.O.Ms. No. 580 "the prisoners who are eligible for release under paragraph 2 above shall be released on 1st November, 1984". It is surprising that in matters of this nature the authorities concerned think it fit to issue clarificatory memos like the one now sought to be relied upon. A Division Bench of this Court in judgment dated 14-4-1972 in Writ Appeals Nos. 515 and 516 of 1971 had occasion to consider the effect of a similar memo i.e., Memo No. 3085 dated 24-9-1970 issued by the Deputy Secretary to Government of Andhra Pradesh in order to remove any doubt in regard to the under-standing of G.O.Ms. No. 1321 of the Government of Andhra Pradesh dated 25-9-1969 issued in exercise of the powers under Art. 161 of the Constitution of India. The said Memo. No. 3085 reads as follows :-
"The Inspector General of Prisons is informed that it is sufficient if one is convicted by a Court of law as on 2-10-69 and falls within the classes of persons mentioned in G.O.Ms. No. 1321 Home (Prisons-A) Department dated 25-9-69, to secure the remission contemplated in the said G.O. even though, he has not served the sentence as an inmate of the prison and remains at large on bail from the beginning."
The Division Bench observed that the said Memo was not issued in exercise of the powers conferred on the Governor under Art. 161 of the Constitution and that therefore it could not be raised to the status of an order issued under Art. 161. As regards the contention advanced that the said Memo could be relied for the purpose of showing that it was an administrative interpretation given to G.O.Ms. No. 1321 dated 25-9-1969 by the Government and that therefore this Court should accept that interpretation and act upon it, the Division Bench held as follows :-
"It is, however, clear that the administrative interpretation of any G.O. given by the executive is not binding upon this Court. This Court can independently interpret the G.O. and come to its own conclusion. In that process of construction it may be that the interpretation placed by the executive can also be considered. We have already, however, stated that the G.O. is incapable of being understood in any other way except the one to which we have already made reference."
We agree with the view expressed by the Division Bench that the administrative interpretation of any G.O. given by the executive is not binding upon this Court thought it may be considered.
12. On the facts of the present case the eight convicts in question were actually undergoing their sentence when they were released on bail pending their appeal before the Supreme Court. Therefore they were prisoners. G.O. Ms. No. 580 does not say that they should be actually undergoing imprisonment unlike G.O.Ms. No. 21. They were out of the prison pursuant to the orders of the Supreme Court pending their appeals. We are not here considering the case of convicts who broke prison or jumped bail and therefore out of prison. On a reasonable interpretation of G.O.Ms. No. 580 we do not see how the eight convicts in question can be denied the benefit of the said G.O.
13. We therefore hold that the eight convicts i.e., (1) Nimmana Mohan Reddy, (2) Puttaparthi Chandra Mouli, (3) Pottapathi Chakrapani, (4) Puttaparthi Pandurangam, (5) Ravula alias Pinninti alias Peddulla Laxma Reddy, (6) Ravula Venkat Reddy, (7) Vaddepalli Mohan Reddi and (8) Revula Govinda Reddi are entitled to be released and accordingly we direct that they be released forthwith.
The writ petition is allowed to that extent. No costs.
14. Order accordingly.