Andhra HC (Pre-Telangana)
K. Prabhakara Reddy And Ors. vs Principal Secretary, Home Dept. And ... on 29 June, 2000
Equivalent citations: 2000(2)ALD(CRI)226, 2000(4)ALT258
Author: Ramesh Madhav Bapat
Bench: Ramesh Madhav Bapat
ORDER Ramesh Madhav Bapat, J.
1. As the facts and law involved in all these writ petitions are common, we are disposing of all of them by this common order. For better understanding of the case, we are referring to the facts in W.P. Nos. 7691/2000.
2. W.P. No. 7691/2000 has been filed under Article 226 of the Constitution of India for directing the respondents to release the convict, who is confined in Central Prison, Warangal after declaring his detention as illegal and pass such appropriate orders.
3. From a reading of the affidavit filed in support of the writ petition, it shows that the writ petition is filed by one Marri Mallaiah for and on behalf of his relative, Kotagiri Veeraiah, who was convicted by the Additional Sessions Judge, Warangal in S.C. No. 139/1985 under Section 302 read with 148, 149 and 452 I.P.C., and 5 of E.S. Act read with Section 149 and 324 of I.P.C. and sentenced to suffer imprisonment for life. The judgment was delivered on 10-2-1988 and ever since, the convict has been undergoing his term of imprisonment in Central Prison, Warangal.
4. It is further submitted by the writ petitioner that on the occasion of 50th Anniversary of India becoming Republic and in exercise of the powers conferred by Article 161 of the Constitution of India the Governor of Andhra Pradesh was pleased to remit the unexpired residue of sentence as on 26-1-2000 of certain categories of prisoners in the State who have been convicted by the Courts. In them, one of the categories of prisoners were those who were sentenced imprisonment for life and who have undergone an actual sentence of seven years and a total sentence of ten years (including remission) as on 26-1-2000 and the said remission was given under G.O. Ms. No. 18, Home (Prisons-C) Department, dated 25-1-2000.
5. Now the grievance made by the petitioner herein is that though the convict has completed seven years of actual sentence and ten years of total sentence, he is not being released.
6. The counter filed by the respondents herein shows that the alleged convict was released on parole for a period of three years, nine months and twenty-two days and, therefore, he is not entitled for the benefit under the said G.O. Ms. No. 18.
7. The learned Counsel for the petitioner invited our attention to G.O. Ms. No.18 dated 25-1-2000. The said G.O. is extracted hereunder for ready reference:-
"GOVERNMENT OF ANDHRA PRADESH ABSTRACT Prisons - Grant of Remission to prisoners on Anniversary of India becoming a Republic -
Home (Prisons -C) Department G.O. Ms. No. 18 dated 25-1-2000 Read the following:-
1. From the Inspector General of Prisons and Director of Correctional Services/ A.P., Hyderabad Lr. No.888/SA2/99, dated 24-12-1999.
2. From the Inspector General of Prisons and Director of Correctional Services, A.P., Hyderabad Lr. No.888/SA2/99, dated 74-2000.
3. From the Inspector General of Prisons and Director of Correctional Services, A.P., Hyderabad Lr, No.888/SA2/99, dated 18-1-2000.
ORDER:
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 26-1-2000, 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 to which the executive power of the State extends, subject to the conditions specified in paras (2) and (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 26-1-2000.
(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 26-1-2000.
(C) All convicted women prisoners sentenced to imprisonment for life who have undergone actual sentence of 5 years and a total sentence of 7 (including remission) as on 26-1-2000.
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 for offences against laws relating to matters 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 Explosives Substances 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 I.P.C. while being sentenced to imprisonment for life.
(5) Prisoners convicted for the offences of theft, robbery, decoity and receiving stolen property (i.e., Sections 379 to 411 I.P.C), while being sentenced to imprisonment for life.
(6) Prisoners who have overstayed on parole/furlough for cumulative periods in excess 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 prisoner 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"
8. Relying on the above extracted G.O., the learned Senior Counsel for the petitioner Sri Padmanabha Reddy submits that the convict must be released as the convict has fulfilled all the above-prescribed conditions.
9. The question that arises for our consideration is whether the convict is entitled to be released by giving benefit under G.O. Ms. No.18 dated 25-1-2000, when he was on parole for a period of 3 years, 9 months and 22 days.
10. The learned Counsel for the petitioner submitted at the bar that even the period of parole has to be counted as a period as if the convict has undergone sentence. It is further contended by the learned Counsel for the petitioner that when the person is released on parole, he is imposed with certain restrictions, therefore, the said period has to be treated as a period of sentence.
11. In addition to the above CO., the Government has framed parole rules in the year 1981 and they are published in G.O. Ms. No.647, Home (Prisons-C), 23rd October, 1981. In the said CO., Rule 18 is relevant for the purpose of this case and it is extracted as under:-
"18. The period spent on parole shall not be counted as part of sentence."
12. The above rule shows that the period spent on parole shall not be counted as a part of sentence. Now the question that arises for our consideration is whether the convict will be entitled to get the benefit of G.O. Ms. No. 18 dated 25-1-2000. Relying on the ruling reported in Sunil Fulchand Shah v. Union of India, 2000(1) SCALE 660. we hold that the convict- is not entitled to the benefit under the G.O. Ms. No.18. In the ruling cited above, the Hon'ble Supreme Court of India at paragraph No. 21, has ruled as under:-
"Since, release on parole is only a temporary arrangement by which a detenu is released for a temporary fixed period to meet certain situations, it does not interrupt the period of detention and, thus, needs to be counted towards the total period of detention unless the rules, instructions or terms for grant of parole, prescribe otherwise. The period during which parole is availed of is not aimed to extend the outer limit of the maximum period of detention indicated in the order of detention."
From the above rule it is evident that it is within the competence of Government to frame rules. Therefore, the State of Andhra Pradesh has framed rules stating that the period of parole cannot be counted as a period of detention. This exception has been recognized in the above cited ruling. Therefore, we are of the considered view that the convict in the present writ petition is not entitled for the benefit under the G.O. Ms. No.18 dated 25-1-2000. Therefore, we are dismissing the writ petition.
13. In view of the above discussion, all the writ petitions are dismissed. No costs.