Andhra HC (Pre-Telangana)
Peesa Jayalakshmi vs The Prl. Secy., Home Department, ... on 6 November, 1996
Equivalent citations: 1997(1)ALD(CRI)286, 1996(4)ALT985, 1997(1)ALT(CRI)441, 1997CRILJ2025
Author: Syed Shah Mohammed Quadri
Bench: R. Bayapu Reddy, Syed Shah Mohammed Quadri
JUDGMENT Syed Shah Mohammed Quadri, J.
1. One P. Narasimhulu, Convict No. 9365 is undergoing sentence of life imprisonment in the Central Jail, Rajahmundry pursuant to the judgment of the learned Additional Sessions Judge, Srikakulam in S.C. No. 2 of 1980 who imposed that sentence of life imprisonment having found him guilty of an offence punishable under Section 302, I.P.C. The said convict's wife is the petitioner in this writ petition. She says that under the orders issued by the Government in G.O. Ms. 195, Home (Prison-C) Department dated 30-6-1995, her husband is entitled to be released as he has completed 10 years of imprisonment as on January, 14, 1995. She, therefore, prays that her husband be released from jail by issuing a writ of habeas corpus directing the respondents to produce him before this Court and to set him free.
The Superintendent Central Jail, Rajahmundry filed a counter affidavit, stating, inter alia, that the convict has not completed ten years of actual sentence for availing the benefit of G.O. Ms. No. 195, Home (Prisons C) Department dated 30-6-1995 as on January, 14, 1995. In the circumstances, he prays for dismissal of the writ petition.
2. Heard the learned counsel for the petitioner as well as the learned Additional Advocate General.
3. The short question that arises for consideration is whether the convict is entitled to the benefit of G.O. Ms. No. 195, Home (Prisons C) Department dated 30-6-1995.
4. The petitioner is relying on para 2(i) of the said G.O. which reads as follows :
"Subsequently with reference to the judgment of the High Court of Andhra Pradesh dated 16-2-1995 in W.P. No. 2422 of 1995, Government have carefully examined the entire issue, in consultation with Inspector General of Prisons and Director of Correctional Services and decided to order for release of the prisoners falling under the following categories :-
(i) Life convicts who have completed ten years of imprisonment including remissions as on 14-1-1995 and governed by Section 433-A of the Code of Criminal Procedure shall be released forthwith."
5. A purusal of clause (i) of para 2 shows that a life convict who has completed ten years of imprisonment including remissions as on 14-1-1995 and government by Section 433-A of the Code of Criminal Procedure, will have to be released forthwith. For this purpose, it has to be seen whether the convict has completed ten years of imprisonment including the remissions as on 14-1-1995 as there is no dispute that the husband of the petitioner is a life convict.
6. Admitted facts of the case are not that the convict was sentenced to rigorous imprisonment for life for an offence punishable under Section 302, I.P.C. in S.C. No. 2 of 1980. Against that judgment, an appeal was filed in the High Court by the convict, but it was dismissed on April 14, 1982. The third respondent filed a Memo of calculation giving the details of remissions, bail period and the period during which the convict was released on parole. The convict was admitted in the jail on October, 29th, 1980. So as on 14-1-1995, the relevant date, he would have completed, had he continued in jail, imprisonment of 14 years, 2 months and 15 days. But he was on bail for a total period of nine years six months and 21 days. We have to exclude this period to find out the actual sentence undergone by the convict. Thus the actual sentence undergone by the convict is 4 years, 7 months and 24 days. The convict was on parole on various dates during different periods amounting to 11 and 4 days. That period also will have to be excluded. By excluding that period the actual period of sentence will come down to 3 years 8 months and 20 days. To this period, we have to add remission of 1 year, eight months granted under G.O. Ms. No. 557, dated 20-10-1980 and a further remission of 1 year 8 months granted under G.O. Ms. No. 580 dated 30-10-1984. The convict is also entitled for Special remission of one month and ordinary remission of 11 months and 15 days. Thus the total sentence deemed to have been undergone by the convict comes to 8 years, 1 month and 5 days. If the remand period of 1 year 23 days to be added, it will come to 9 years 1 month and 28 days.
7. The learned counsel for the petitioner, however, submits that the convict is entitled to remission of three months as per G.O. Ms. No. 21, Home (Prisons-C) Department dated 20-1-1983 and therefore, the sentence deemed to have undergone will be 9 years, 4 months and 28 days. Thus, it can be seen that as on 14-1-1995, the convict has not completed a period of ten years. But the matter does not end there. According to the third respondent, the convict has over-stayed for a period of 74 days and therefore a period of 370 (74 x 5) days will have to be deducted from the period already undergone. The punishment of overstay at the rate of 5 days remission for each day of overstay while the convict released on parole, adversely affect the rights of the convict so the same cannot be given effect to without giving an opportunity to the convict of being heard. From the record placed before us, it does not appear that the convict was given notice before imposing that punishment. Therefore, the penalty of 370 days for over-stay of 74 days cannot be allowed to be imposed as the convict was not heard before imposing that punishment. The same view was taken by a Division Bench of this Court in Polusani Sahadeva Rao v. State of A.P., (1996) 2 Andh LD (Cri) 414.
8. There is yet another aspect which is urged before us. Sri D. Kodandarami Reddy, learned counsel for the petitioner contends that under ordinary remission, the total period of 20 years will have to be taken into consideration for working out the remission to convict, whereas Miss Vijayalakshmi, counsel representing for the learned Additional Advocate General submits that the remission will be worked out for the period during which the convict was in the prison.
9. To appreciate the contention of the learned counsel, it will be necessary to read here Rule 340 of the Andhra Pradesh Prison Rules.
"(1) Remission is of three kinds, viz., Ordinary, Special and Government, (2) Ordinary remission shall be awarded on the following scale :-
(a) Two days per month for thoroughly good conduct and scrupulous attention to all prison regulations;
(b) Three days per month for industry and the due performance of the daily task imposed."
10. Sub-rule (2) will apply in this case. Clause (a) of the Sub-rule provides that remission of two days per month be awarded for 'thoroughly good conduct and scrupulous attention to all the prison regulations' and clause (c) provides remission of three days per month for 'industry and the due performance of the daily task imposed'. Satisfaction on these aspects cannot be recorded by the concerned authority for granting remission unless the conduct of the convict is watched in the prison while serving sentence. Therefore, in our view, remission under Rule 340 viz., ordinary remission has to be worked out only on the period during which the convict was in the prison but not the total life period of 20 years as contended.
11. From the above discussion it follows that ordinary remission worked out by the third respondent on the basis of the period during which the convict was actually in prison as 11 months and 15 days, has to be accepted, as against 1 year 11 months 20 days on 20 years life imprisonment as urged by the learned counsel for the petitioner. Thus it is clear that the convict has not completed 10 years of imprisonment as on 14-1-1995. The Writ petition, is therefore, liable to be dismissed and it is accordingly dismissed, but in the circumstances of the case without costs.
12. Petition dismissed.