Andhra HC (Pre-Telangana)
Saidapalli Mogalaiah And Anr. vs State And Anr. on 28 August, 2003
Equivalent citations: 2003(5)ALD500, 2003(2)ALT(CRI)510
Author: Bilal Nazki
Bench: Bilal Nazki, K.C. Bhanu
JUDGMENT Bilal Nazki, J.
1. This writ petition has been filed by two petitioners challenging the order of arrest issued by way of warrants dated 16-12-1983. The warrants had been issued in execution of the judgment of the High Court in Criminal Appeal No. 376 of 1968 and batch dated 10-3-1969. The petitioner herein were accused in Sessions Case No. 20 of 1967 which was decided by Additional Sessions Judge, Hyderabad, the petitioners accused had been charged offences under Sections 302, 149 read with 34 of IPC. The Sessions Court gave its judgment on 19-7-1967. There were 6 accused in all. Accused No. 1 was convicted and sentenced to life imprisonment A2 to A6 were acquitted. A1 filed Crl. A. No. 567 of 1967 against the conviction and sentence. The State also preferred an appeal against acquittal of A2 to A5. So, there were two appeals one against conviction being Crl. A. No. 561/67 another against acquittal being Crl.A.No. 376/68. The High Court, by common judgment dated 10-3-1969 dismissed the appeal filed by A1 against conviction and allowed the appeal filed by the State against acquittal of A2 to A5 reversing the judgment of the Sessions Judge. The authorities issued warrants of arrest against A3 and A4 whereas the authorities did not choose to execute warrants against A2 and A5 who are the present petitioners. The petitioner No. 1 claims that, at the time of conviction he was 16 years old and petitioner No. 2 was 18 years old which can be ascertained from the Prisoners Register maintained at the Central Prison, Secunderabad, and if the respondents had executed the warrants immediately after the judgment of the Court on 10-3-1969 both the petitioners could have availed the benefits available to Juvenile prisoners such as Borstal Schools as they were minors at the time the judgment was rendered by the High Court, however the respondents did not choose to issue warrants to execute the orders of the High Court for reasons best known to them and the same was executed on 16-12-1983, thereby they lost the benefits which could have been available to them as Juvenile prisoners. The petitioners also submitted that, had they been arrested immediately alter conviction they would have served the sentence and would have been free by now. The respondents had executed the warrants against the petitioners after lapse of 14 years from the date of the judgment of the High Court, therefore it is contended by the petitioners that the arrest and detention was bad in law as the warrants were not executed within a reasonable period of time and no reasons had been given for the delayed execution of the warrants for a period of 14 years. The detention is also challenged as being violative of Articles 14 and 21 of the Constitution of India.
2. The judgment was rendered by the High Court on 10-3-1969. Warrants were executed on 16-12-1983. Both the petitioners were released on parole on 29-10-1984 for a period of 4 months. They were supposed to surrender on 29-2-1984 but both of them absconded and according to them they did not surrender because of their family problems. The respondents then arrested petitioner No. 1 in May, 1998 and petitioner No. 2 surrendered on 12-9-1998. When the Writ petition was filed the 1st petitioner was in custody while the 2nd petitioner was again on parole from 23rd January, 2003 to 23rd February, 2003. It was contended that, on the date when the sentence was imposed life imprisonment normally would mean 7 years whereas now it has been extended to 14 years, had they been detained at that point of time the petitioners would have been released in 7 years, that would mean in the year 1975. On these grounds the petitioners sought quashing of their arrest and detention.
3. In the counter-affidavit that has been filed by Superintendent, Central Prison, Cherlapally it has been contended that the delay in execution of the committal warrants does not wipe out the sentence. It has been admitted that the petitioners were acquitted by the Additional Sessions Judge in S.C. No. 20/67, the State preferred appeal against acquittal of the petitioners and the High Court allowed the appeal and convicted the petitioners and sentenced them to life imprisonment. The 1st Additional M.S.J Hyderabad issued warrants of arrest of petitioners directing their arrest and confinement in Central Jail, Hyderabad on 26-12-1983. Pursuant to the said committal warrant the petitioners were arrested and admitted to jail on 26-12-1983. Both the petitioners were released on parole on 25-10-1984 for a period of 2 months, then the parole was extended by another two months. They were supposed to surrender on 28-2-1985, but they did not surrender. The petitioner No. 1 was arrested by police on 9-5-1998 and admitted to Central Prison, Hyderabad. He overstayed parole for a period of 13 years 2 months and 11 days. The 2nd petitioner surrendered before the Superintendent, Central prison, Hyderabad on 12-9-1998. He overstayed for a period of 13 years 6 months and 14 days. As per A.P. Prison Rules, 1973 in Chapter LIV the petitioner No. 1 was punished with denial of parole and furlough for a period of 4 years. He was also denied interviews for a period of 1 years and punished by removal of his name from the remission rolls as per the Orders of the Inspector General of Prisons and denial of canteen facilities for 1 years vide memo dated 12-4-1999. As per A.P. Prison Rules the 2nd petitioner was punished with denial of parole and furlough for 3 years. He was also denied of interviews for 1 year, canteen facilities for 1 year and his name was removed from remission rolls permanently vide memo dated 16-5-1999. The 2nd petitioner completed above punishment and was again released on parole on 23-1-2003 for a period of 1 month and the parole was extended upto 4-3-2003 and he surrendered on 5-3-2003.
4. Though we feel that the delayed execution of warrant of arrest in execution of a sentence cannot be a ground for striking down the conviction itself, yet in the present case even the argument submitted by the learned Senior Counsel Mr. S. Ramachandra Rao cannot be accepted in view of the conduct of the petitioners. Though it is a fact that the warrant was issued after 14 years of the conviction and no reasons had been given by the respondents for such a delay yet it is a fact that when the petitioners Were arrested in the year 1983 and they were released on parole in 1984 or 4 months they absconded and were arrested only after 14 years. Whatever the grievances the petitioners would have on the basis of delayed execution of warrants those grievances are not available to them as on today. Had the petitioners challenged their detention in the year 1983 the question would have been gone into, but after having been arrested alter 14 years and serving the sentence for one year and availing the parole, and then jumping over the parole for another 15 years, they cannot blame anyone except themselves. The learned Senior Counsel has not shown us as to how Article 21 gets violated in case of delayed execution of the warrant. The fact of the matter is that the petitioners were convicted by a competent Court i.e., the High Court, for offences including offence under Section 302 IPC and were sentenced to life imprisonment the fact of the matter also remains that after getting convicted and sentenced by a competent Court of law they are at present serving the sentence. Therefore, the action of the respondents in executing the warrants is in no way against the mandate of either Article 14 or Article 21 of the Constitution.
5. Under Section 418 of the Code of Criminal Procedure where the accused is sentenced to imprisonment for life or to imprisonment for a term in cases other than those provided for by Section 413, the Court passing the sentence shall forthwith forward a warrant to the jail or other place in which he is, or is to be confined and, unless the accused is already confined in such jail or other place, shall forward him to such jail or other place, with the warrant. Under Sub-section (2), where the accused is not present in Court when he is sentenced to such imprisonment in Sub-section (1) the Court shall issue a warrant for his arrest for the purpose of forwarding him to the jail or other place in which he is to be confined, and in such case, the sentence shall commence on the date of his arrest. So, it is the duty cast on the Court to issue a warrant if the accused was not present in the Court when the sentence was pronounced and in any case the sentence has to commence from the date of his arrest and if delay is caused in issuing the warrant of arrest, that is not going to benefit the accused. Even as a citizen, we believe that it is the duty on the accused person, who is convicted and who does not file appeal against conviction, to come forward for serving the sentence. Rule of law not only demands issue of warrant but also demands surrender of convicted person to undergo sentence. Therefore, in our view, the petitioners cannot take the benefit of delayed execution of warrants.
6. The next argument of the petitioners was that had they been arrested in 1969 they would have served sentence of 7 years whereas now they would have serve sentence of 14 years No law has been shown to us which would suggest that 'life imprisonment' in 1969 would mean only 7 years and 'life imprisonment' in 2003 or in 1998 would mean a sentence of 14 years. This matter was considered by a Constitution Bench of Supreme Court in G. V. Godse v. State of Maharashtra, . It is a judgment authored by Justice K. Subba Rao, as His Lordship then was. The Court held that the question of remission is exclusively within the province of me appropriate Government. It also held that, unless the sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison. The facts of the case before the Supreme Court have been narrated in para-2 of the judgment. Para-2 is reproduced:
"2. On February 10, 1949 the Judge, Special Court, Red Fort, Delhi, convicted the petitioner for offences under Section 3, read with Section 6, of the Explosive Substances Act, under Section 4(b) and Section 5 thereof; and for murder under Section 302, read with Section 109, of the Indian Penal Code; for the first two offences he was sentenced to seven years' rigorous imprisonment and five years' rigorous imprisonment respectively and for the third offence to transportation for life and all the sentences were directed to run concurrently. After conviction he was imprisoned in jails in the State of Punjab till May 19, 1950 and thereafter he was transferred to Nasik Road Central Prison in the State of Bombay (now Maharashtra). According to the petitioner, he has earned the following remissions upto September 30, 1960:
(a) Ordinary remission ... 836 days
(b) Special remission ... 206 days
(c) Physical training remission ... 113 days
(d) Literary remission ... 108 days
(e) Annual good conduct remission ... 250 days
(f) State remission ... 1380 days The total of the remissions earned is 2893 days; but the State in its counter-affidavit states that the petitioner has earned upto the said date remission of 2963 days. The figure given by the State may be accepted as correct for the purpose of this petition. If the amount of remissions thus earned was added to the term of imprisonment the petitioner has actually served, the aggregate would exceed 20 years, and even if only the State remission was added to it, it would exceed 15 years. The petitioner, claiming that under the relevant provisions governing his imprisonment his further detention in jail would be illegal, prays that he might be set at liberty forthwith. The State, while conceding that he had earned remissions amounting to 2963 days, alleged in the counter-affidavit that the remissions earned did not entitle him to be released and that under the rules question of his release would be considered only after he completed 15 years' actual imprisonment.
Then in para-5 the Supreme Court observed:
"5. If so, the next question is whether mere is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government, can be automatically treated as one for a definite period. No such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act. Though the Government of India stated before the Judicial Committee in the case cited supra that having regard to Section 57 of the Indian Penal Code, 20 years' imprisonment was equivalent to a sentence of transportation for life, the Judicial Committee did not express its final opinion on that question."
Finally in para-8 the Supreme Court held:
"Unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison. The rules framed under the Prisons Act enable such a prisoner to earn remissions - ordinary, special and State - and the said remissions will be given credit towards his term of imprisonment. For the purpose of working out the remissions the sentence of transportation for life is ordinarily equated with a definite period, but it is only for that particular purpose and not for any other purpose. As the sentence of transportation for life or its prison equivalent, the life imprisonment, is one of indefinite duration, the remissions so earned do not in practice help such a convict, as it is not possible to predicate the time of his death. That is why the rules provide for a procedure to enable the appropriate Government to remit the sentence under Section 401 of the Code of Criminal Procedure on a consideration of the relevant factors, including the period of remissions earned. The question of remission is exclusively within the province of the appropriate Government."
7. For these reasons, we do not consider any merit in this writ petition which is accordingly dismissed.
8. This matter, in our view, needs to be looked into administratively. We are conscious that Officers who might be responsible for not issuing warrants for 14 years may not be in service now and it may not be possible to punish those who were responsible for delaying the warrants from 1969 to 1984 but at the same time enquiry needs to be conducted to see whether any of the officer is still in service and whether he can be suitably punished. Even of that was not possible even then it is a case of enquiry so that the High Court knows how such manipulations can taken place and if there are any bottlenecks they can removed. Therefore, the file be placed before the Hon'ble Chief Justice so that appropriate administrative action is ordered by the Hon'ble Chief Justice.