G.O.Ms.No.189, Home (Prisons-C) Department, dated 07-08-2004 and as per Clause 2(a) of the said G.O, all the convicted prisoners other than life convicts who have undergone half of the sentence including remission as on 31-07-2004 are entitled for release. - Writ petition seeking benefit under the G.O. - Allowed = Smt.Ambati Aruna wife of Late Murali Mohan Reddy ....petitioner State of A.P. rep. by its Principal Secretary, Home Department and others.. Respondents = published in judis.nic.in/judis_andhra/filename=10638
G.O.Ms.No.189, Home (Prisons-C) Department, dated 07-08-2004 and as per Clause
2(a) of the said G.O, all the convicted prisoners other than life convicts who
have undergone half of the sentence including remission as on 31-07-2004 are
entitled for release. - Writ petition seeking benefit under the G.O. - Allowed =
According to the Petitioners, they served the sentence
for a period of two years 8 months including judicial remand, actual sentence
and remission granted by the jail authorities.
The Government issued
G.O.Ms.No.189, Home (Prisons-C) Department, dated 07-08-2004 and as per Clause
2(a) of the said G.O, all the convicted prisoners other than life convicts who
have undergone half of the sentence including remission as on 31-07-2004 are
entitled for release.
On enquiry they came to know that the widow of the
deceased in the case filed W.P.No.5440 of 2010 seeking their arrest and the
Respondents without verifying the fact issued warrants yielding to political
pressures even after issuance of G.O.
Hence they sought a writ of Mandamus
declaring that they undergone and served the total sentence imposed on them by
virtue of the remission granted by the 1st Respondent in G.O.Ms.No.189, Home
(Prisons-C) Department, dated 07-08-2004 and consequently for a declaration that
the issuance of the NBWs is illegal. =
Hence in order to apply the benefit of the Government order, the
convicted prisoners need not be in prison as on the date of the Government
order. While considering the case of the terms bail/parole/furlough, the Hon'ble
Supreme Court in the decision in State of Haryana and others case(1st cited),
observed as follows:-
"Terms bail, furlough and parole have different connotations. Bail is well
understood in criminal jurisprudence. Provisions of bail are contained in
Chapter XXXIII of the code. It is granted by the officer-in-charge of a police
station or by the Court when a person is arrested and is accused of an offence
other than non-bailable offence. When a person is convicted of an offence he can
be released on bail by the appellate court till his appeal is decided. If he is
acquitted his bail bonds are discharged and if appeal dismissed he is taken into
custody. Bail can be granted subject to conditions. It does not appear to be
quite material that during the pendency of appeal though his sentence is
suspended he nevertheless remains a convict. For the exercise of powers under
Section 432, it may perhaps be relevant that the State Government may remit the
whole or any part of the punishment to which a person has been sentenced even
though his appeal against conviction and sentence was pending at that time.
Appeal in that case might have to abate inasmuch as the person convicted has to
accept the conditions on which State Government remits the whole or in part of
his punishment."
In the instant case, the Petitioners are not claiming the remission for
the period they were on bail but they are claiming the benefit of the Government
order on the ground that they have completed half of the sentence including the
remission as on 31-07-2004. There is no dispute that they have undergone half of
the sentence as on 31-07-2004. In the facts and circumstances of the case, the
Petitioners are entitled for the benefit of G.O.Ms.No.189 Home (Prisons-C)
Department, dated 07-08-2004 and consequently the Non-bailable Warrants(NBWs)
issued by the learned II Additional Sessions Judge, Kadapa at Proddatur are
liable to be recalled. The 1st Respondent shall consider the case of the
Petitioners in accordance with the above said G.O and pass appropriate orders
thereon within a period of three(3) months from the date of receipt of a copy of
this order.
Accordingly, W.P.No.7795 of 2010 is allowed. W.P.No.5440 of 2010 is
dismissed.
Miscellaneous Petitions pending, if any, in both the writ petitions shall
stand closed. In the circumstances, there shall be no order as to costs.
THE HONOURABLE SRI JUSTICE A.RAMALINGESWARA RAO
W.P.Nos.5440 OF 2010
13-12-2013
Smt.Ambati Aruna wife of Late Murali Mohan Reddy ....petitioner
State of A.P. rep. by its Principal Secretary, Home Department and others..
Respondents
Counsel for the petitioner : Sri Nagarju Naguru
Counsel for the Respondent: Government Pleader for Hom
<Gist:
>Head Note:
?Cases referred:
1.AIR 2000 S.C.890
2.1994 CRL.L.J 533
THE HON'BLE SRI JUSTICE A. RAMALINGESWARA RAO
W.P.NOS.5440 & 7795 OF 2010
COMMON ORDER:-
The facts in these two cases are similar and hence they are disposed of by
this common order.
W.P.No.5440 of 2010
The husband of the Petitioner was murdered due to political rivalry on 07-
06-1992. The case was tried in S.C.No.5 of 1994 by the learned II Additional
Sessions Judge, Kadapa at Proddatur and sentenced Accused Nos.2 to 7 with
imprisonment for life by judgment dated 27-02-1998 for the offence under
Sections 302 read with 149 IPC. All the accused preferred two appeals before
this court in Crl.A.Nos.408 and 409 of 1998 and this court by judgment dated 11-
02-1999 allowed Crl.A.No.408 of 1998 filed by A-2 and modified the conviction
and sentence in respect of A-2 to A-7 in Crl.A.No.409 of 1998 to a punishment
under Section 304-II IPC and sentenced them to undergo rigorous imprisonment for
a period of four(4) years with fine of Rs.5,000/- each in default to suffer
rigorous imprisonment for one year. Accused No.7 was acquitted of all charges
levelled against him. The accused preferred Crl.A.Nos.1342 and 1343 of 1999
before the Supreme Court and the same was dismissed on 18-11-2004 confirming the
judgment of this court in Crl.A.Nos.408 and 409 of 1998 dated 11-02-1999.
2. It is the case of the Petitioner that A-3 to A-6 were in jail from 27-02-
1998 to the date bail was granted by the Apex Court in Crl.A.No.1343 of 1999 for
about a period of 15 months and when no action was taken to apprehend A-3 to A-6
the present writ petition was filed for taking further action consequent to the
dismissal of the appeal by the Supreme Court.
3. The 1st Respondent filed a counter-affidavit admitting the facts leading
to the disposal of Criminal Appeal by the Hon'ble Supreme Court of India and
stating that A-3 to A-6 were in jail for a period of 23 months 5 days. It was
also stated that A-6 Bemu Narasimha Reddy son of Sesha Reddy died on
28-02-2004. It is stated that for execution of the NBWs issued by the learned II
Additional Sessions Judge, Kadapa at Proddatur against A-3 to A-6, a special
team was constituted headed by the Sub-Inspector of Police, Mannur Police
Station for apprehending the accused in order to produce before the court but
they were absconding and hence the NBWs could not be executed. During the
pendency of the execution of NBWs, A-3 to A-5 approached this court and filed
W.P.No.7795 of 2010 and this court at the admission stage granted interim orders
as follows:-
"Post on 23-04-2010.
Prima facie, G.O.Ms.No.189, Home (Prisons) department, dated 07-08-2004, applies
to the cases of the Petitioners as by the time of issuance of the said G.O, the
Petitioners are stated to have undergone imprisonment for more than half of the
sentence imposed on them.
In view of the same, the Respondents are directed not to arrest the
Petitioners for a period of two weeks."
4. It is further stated that in obedience to the interim order, the police
are unable to execute the NBWs issued against A-3 to A-6 who filed W.P.No.7795
of 2010.
5. The 2nd Respondent filed a counter-affidavit stating that the certified
copy of the order in Crl.A.No.1342 and 1343 of 1999 dated 18-11-2004 was sent by
the Hon'ble Registrar General, Supreme Court of India by covering letter dated
10-02-2005 and the same was received in the Court of II Additional Sessions
Judge, Kadapa at Proddatur on 23-02-2005. On the same day records were also
received from the Apex Court. On 27-06-2005 the then Additional District Judge
sent the records in S.C.No.5 of 1994 to the Central Record Room, District Court,
Kadapa without issuing warrants to the A-3 to A-6 for the reasons best known to
him and thereafter there were no records available on the file of the Court of
II Additional Sessions Judge, kadapa at Proddatur with regard to S.C.No.5 of
1994. After nearly five (5) years the writ petitioner sent a fax message to the
Principal District Judge, Kadapa on 22-02-2010 and the same was forwarded to the
II Additional Sessions Judge, Kadapa for taking necessary action against the
accused. On 10-03-2010 the Registrar General, High Court of A.P has sent a fax
message to the Principal District Judge, Kadapa along with a copy of petition
and affidavit in W.P.No.5440 of 2010 filed by the Petitioner and requested to
send para wise remarks and connected records and the same was communicated to
the II Additional Sessions Judge, Kadapa at Proddatur on the same day. Some
correspondence ensued and searches were conducted for the records and it
revealed that A-3 to A-6 were released on bail on 01-02-2000 and the time spent
by them in judicial custody and imprisonment after conviction are as follows:-
"A-3 and A-6 were in remand during the following period:
1.During the Crime stage from 1-06-1992 to 07-12-1992 i.e., 5 months 28
days at Central Prison, Kadapa.
2. A-4 and A-6 were in remand in Sub-Jail, Rajampet.
From the date of Judgment in S.C.No.5/94 till the date of release of accused
basing on the bail order of Hon'ble Supreme Court i.e., from 27-02-1998 to 01-
02-2000 i.e., 23 months 5 days. All the accused were at Central Prison, Kadapa."
Thus they were in jail for a total period of 29 months 3 days. On 15-03-2010 the
2nd Respondent issued Non-bailable Warrants(NBW) against A-3 to A-6 and
forwarded them to the Judicial First Class Magistrate, Rajampet for execution
and as and when they are produced before the court after execution of the NBWs,
the 2nd Respondent would take immediate action against the accused.
W.P.No.7795 of 2010.
6. This writ petition was filed by A-3 to A-5 in S.C.No.5 of 1994 stating
that the learned Sessions Judge convicted the Petitioners under Section 148 and
302 of IPC and sentenced them to undergo rigorous imprisonment for one year and
a fine of Rs.100/- under Section 148 IPC and imprisonment for life and fine of
Rs.100/- under Section 302 IPC and ordered that both sentences should run
concurrently. Aggrieved by the said conviction and sentence, they preferred
Crl.A.No.409 of 1998 and the conviction and sentence passed by the trial court
was modified into one under Section 304-II IPC and sentenced all the Petitioners
to undergo rigorous imprisonment for a period of four years and to pay a fine of
Rs.5000/-. The State carried the matter to the Supreme Court in Crl.A.No.1343 of
1999 and when the matter was pending before the Supreme Court they were granted
bail and were released from jail on 01-02-2000. Ultimately, the appeal was
dismissed on 18-11-2004. According to the Petitioners, they served the sentence
for a period of two years 8 months including judicial remand, actual sentence
and remission granted by the jail authorities. The Government issued
G.O.Ms.No.189, Home (Prisons-C) Department, dated 07-08-2004 and as per Clause
2(a) of the said G.O, all the convicted prisoners other than life convicts who
have undergone half of the sentence including remission as on 31-07-2004 are
entitled for release. On enquiry they came to know that the widow of the
deceased in the case filed W.P.No.5440 of 2010 seeking their arrest and the
Respondents without verifying the fact issued warrants yielding to political
pressures even after issuance of G.O. Hence they sought a writ of Mandamus
declaring that they undergone and served the total sentence imposed on them by
virtue of the remission granted by the 1st Respondent in G.O.Ms.No.189, Home
(Prisons-C) Department, dated 07-08-2004 and consequently for a declaration that
the issuance of the NBWs is illegal.
7. The 2nd Respondent filed a counter-affidavit stating that the Petitioners
have undergone a total sentence as shown hereunder as on 01-02-2000.
Sl.No
Name
Actual Sentence
Y-M-D
Remand period
Y-M-D
Remission
Y-M-D
Total sentence undergone
Y-M-D
1
K.Gangi Reddy
01-11-04
0-06-01
0-04-15
02-09-20
2
M.V.Subba Reddy
01-11-04
0-04-05
0-04-15
02-07-24
3
M.Srinuvasulu Reddy
01-11-04
0-04-27
0-04-07
02-08-08
It was further stated that at the time of issuance of G.O.Ms.No.189, Home
(Prisons-C) Department, dated 07-08-2004, the Petitioners were on bail and hence
they are not eligible/entitled for grant of remission in terms of the said G.O.
Further in Circular No.SA2/423/2004 dated 13-08-2004 issued by the Director
General & Inspector General of Prisons & Correctional Services, A.P., Hyderabad
all the Superintendents of Jails were informed that prisoners who are not in the
prison as on the date of issuance of G.O, are not entitled to be released. It
was further stated that the Petitioners are not serving sentence as on the date
of issuance of G.O and hence they are not entitled for the benefit.
8. Heard the learned counsel for the Petitioners, the counsel for the
Respondents and the learned Government Pleader for Home.
9. The learned counsel for the Petitioner in W.P.No.5440 of 2010 submits that
since the Petitioners in W.P.No.7795 of 2010 were not in prison as on the date
of issuance of G.O.Ms.No.189, dated 07-08-2004, they are not entitled for the
relief granted under the said Government order. He relied on a decision reported
in State of Haryana and others Vs. Mohinder Singh(1). He contends that in view
of the Circular dated 13-08-2004 issued by the Director General & Inspector
General of Prisons, A.P., Hyderabad which says that prisoners who are not in
prison and overstaying on Parole/Furlough unauthorisedly are not entitled to be
released. The Petitioners in W.P.No.7795 of 2010 were not in prison as on the
date of the issuance of the Government order and hence in view of the Circular,
they are not entitled to get the benefit of the Government order. On the other
hand, Sri T.Bali Reddy, the learned Senior Counsel appearing for the Petitioners
in W.P.No.7795 of 2010 relied on Full Bench Judgment of this Court in Indian
Association of Lawyers(A.P.Chapter) Vs. The Principal Secretary, Home Department
and Others (2). He drew the attention of this court to the observations of the
Division Bench quoted by the Full Bench in the aforesaid decision, which reads
as under:-
"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."
He also relied on the observations of the Full Bench to the effect that when the
convicts were released on bail, they were actually undergoing their sentence
pending their appeal. Therefore, they were prisoners and they should not be
actually undergoing imprisonment. Hence the benefit of G.O.Ms.No.189 should be
extended to the Petitioners also.
10. The learned Government Pleader for Home submitted that the Government
Order does not confer any right on the Petitioners and it is only an order
enabling the authorities to consider the cases of the prisoners who are entitled
for the benefit of the said Government Order. It is also submitted by the
learned Government Pleader that the Petitioners should surrender before the
authorities and claim benefit under any Government Order thereafter and each
case will be considered by the Committee which recommends to the Government for
consideration.
11. A perusal of the G.O.Ms.No.189, Home (Prisons-C) Department, dated 07-08-
2004 shows that the said G.O was issued on 07-08-2004 and it is applicable to
all the convicted prisoners other than life convicts who have undergone half of
the sentence including remission as on 31-07-2004. As on 31-07-2004 the appeals
were pending before the Apex Court and the Petitioners were on bail. As per the
Memo No.SA2/423/2004-Vol.3, dated 13-08-2004 issued by the Director General &
Inspector General of Prisons and Correctional Services, Andhra Pradesh,
Hyderabad the prisoners who are not in prison and overstaying on Parole/Furlough
unauthorisedly as on that date are not entitled to get the benefit of the said
Government order.
12. There is no dispute with regard to the facts of the case. The Petitioners
in W.P.No.7795 of 2010 were convicted by the Criminal Court in S.C.No.5 of 1994
on 27-02-1998. They filed Criminal Appeal Nos.1408 and 1409 of 1998 before this
Court. The appeals were allowed on 11-02-1999 modifying the sentences awarded by
the Sessions Court and convicting the accused under Section 304-II IPC for a
period of four(4) years. Against the said Criminal Appeals, the Petitioners and
the State filed Appeals before the Hon'ble Supreme Court and they were granted
bail on 01-02-2000. Ultimately, the Hon'ble Supreme Court dismissed the appeals
on 18-11-2004.
13. The argument of the learned counsel for the Petitioner in W.P.No.5440 of
2010 and the learned Government Pleader for Home is based on the Circular
bearing No.SA2/423/2004-Vol.3, dated 13-08-2004 issued by the Director General &
Inspector General of Prisons, Andhra Pradesh, Hyderabad and the relevant portion
of the Circular is as follows:-
"1. Prisoners who are not in Prison and overstaying on Parole/Furlough
unauthorizedly are not entitled to be released even if their names are found in
the Annexure to the G.O 3rd cited."
Basing on the said Circular, it is contended by the learned Counsel that the
prisoners should be in prison as on the date of issuance of the Government order
in order to get benefit of the order. It is apparently based on misconception.
The Circular came to be issued on the request of the Superintendents of Jails
seeking clarification with regard to the release of prisoners who were
overstaying on Parole/Furlough unauthorisedly and some of the prisoners who are
convicted to substantive as well as default sentences. The Petitioners in
W.P.No.7795 of 2010 do not fall in the said category. However, the learned
counsel split the sentences extracted portion above and submit that prisoners
who are not in prison as one category and those who are overstaying on
Parole/Furlough unauthorisedly as another category and contend that since the
convicted Petitioners were not in prison as on the date of the Government order,
they are not entitled for the relief. The Circular came to be issued only in
respect of the category of prisoners who are overstaying on Parole/Furlough
unauthoirsedly and a reading of the entire sentence makes it clear by the
adjunctives "and" it cannot be split into two categories. Thus the submission of
the learned counsel for the Petitioner and the learned Government Pleader is
untenable, a reading of the Circular makes it clear. But in the counter-
affidavit filed by the Director General & Inspector General of Prisons, Andhra
Pradesh, Hyderabad, a different interpretation which was unwarranted was given.
It is stated in the counter-affidavit that according to Instruction No.1 in the
Circular, the benefit of the said Government order can be extended only to the
prisoners who are rendering sentences on the date when the Government order was
issued. This meaning was not attributed in the Circular but given a new meaning
in the counter. Hence in order to apply the benefit of the Government order, the
convicted prisoners need not be in prison as on the date of the Government
order. While considering the case of the terms bail/parole/furlough, the Hon'ble
Supreme Court in the decision in State of Haryana and others case(1st cited),
observed as follows:-
"Terms bail, furlough and parole have different connotations. Bail is well
understood in criminal jurisprudence. Provisions of bail are contained in
Chapter XXXIII of the code. It is granted by the officer-in-charge of a police
station or by the Court when a person is arrested and is accused of an offence
other than non-bailable offence. When a person is convicted of an offence he can
be released on bail by the appellate court till his appeal is decided. If he is
acquitted his bail bonds are discharged and if appeal dismissed he is taken into
custody. Bail can be granted subject to conditions. It does not appear to be
quite material that during the pendency of appeal though his sentence is
suspended he nevertheless remains a convict. For the exercise of powers under
Section 432, it may perhaps be relevant that the State Government may remit the
whole or any part of the punishment to which a person has been sentenced even
though his appeal against conviction and sentence was pending at that time.
Appeal in that case might have to abate inasmuch as the person convicted has to
accept the conditions on which State Government remits the whole or in part of
his punishment."
In the said decision, the Supreme Court referred to an earlier decision of
Nalamolu Appala Swamy Vs. State of Andhra Pradesh [ 1998 Supp (2) SCC 192]
wherein it was observed as follows:-
"We find merit in the contention because the scheme of remission
formulated under the GO is with reference to the period of sentence actually
undergone by different classes of prisoners and in the case of some the period
of actual sentence together with the remissions earned for reckoning the total
sentence. The GO does not stipulate that in order to get the benefit of
remission the prisoners must actually be in jail on the date of GO was issued."
14. In the instant case, the Petitioners are not claiming the remission for
the period they were on bail but they are claiming the benefit of the Government
order on the ground that they have completed half of the sentence including the
remission as on 31-07-2004. There is no dispute that they have undergone half of
the sentence as on 31-07-2004. In the facts and circumstances of the case, the
Petitioners are entitled for the benefit of G.O.Ms.No.189 Home (Prisons-C)
Department, dated 07-08-2004 and consequently the Non-bailable Warrants(NBWs)
issued by the learned II Additional Sessions Judge, Kadapa at Proddatur are
liable to be recalled. The 1st Respondent shall consider the case of the
Petitioners in accordance with the above said G.O and pass appropriate orders
thereon within a period of three(3) months from the date of receipt of a copy of
this order.
Accordingly, W.P.No.7795 of 2010 is allowed. W.P.No.5440 of 2010 is
dismissed.
Miscellaneous Petitions pending, if any, in both the writ petitions shall
stand closed. In the circumstances, there shall be no order as to costs.
_______________________
A.RAMALINGESWARA RAO,J
13-12-2013
2(a) of the said G.O, all the convicted prisoners other than life convicts who
have undergone half of the sentence including remission as on 31-07-2004 are
entitled for release. - Writ petition seeking benefit under the G.O. - Allowed =
According to the Petitioners, they served the sentence
for a period of two years 8 months including judicial remand, actual sentence
and remission granted by the jail authorities.
The Government issued
G.O.Ms.No.189, Home (Prisons-C) Department, dated 07-08-2004 and as per Clause
2(a) of the said G.O, all the convicted prisoners other than life convicts who
have undergone half of the sentence including remission as on 31-07-2004 are
entitled for release.
On enquiry they came to know that the widow of the
deceased in the case filed W.P.No.5440 of 2010 seeking their arrest and the
Respondents without verifying the fact issued warrants yielding to political
pressures even after issuance of G.O.
Hence they sought a writ of Mandamus
declaring that they undergone and served the total sentence imposed on them by
virtue of the remission granted by the 1st Respondent in G.O.Ms.No.189, Home
(Prisons-C) Department, dated 07-08-2004 and consequently for a declaration that
the issuance of the NBWs is illegal. =
Hence in order to apply the benefit of the Government order, the
convicted prisoners need not be in prison as on the date of the Government
order. While considering the case of the terms bail/parole/furlough, the Hon'ble
Supreme Court in the decision in State of Haryana and others case(1st cited),
observed as follows:-
"Terms bail, furlough and parole have different connotations. Bail is well
understood in criminal jurisprudence. Provisions of bail are contained in
Chapter XXXIII of the code. It is granted by the officer-in-charge of a police
station or by the Court when a person is arrested and is accused of an offence
other than non-bailable offence. When a person is convicted of an offence he can
be released on bail by the appellate court till his appeal is decided. If he is
acquitted his bail bonds are discharged and if appeal dismissed he is taken into
custody. Bail can be granted subject to conditions. It does not appear to be
quite material that during the pendency of appeal though his sentence is
suspended he nevertheless remains a convict. For the exercise of powers under
Section 432, it may perhaps be relevant that the State Government may remit the
whole or any part of the punishment to which a person has been sentenced even
though his appeal against conviction and sentence was pending at that time.
Appeal in that case might have to abate inasmuch as the person convicted has to
accept the conditions on which State Government remits the whole or in part of
his punishment."
the period they were on bail but they are claiming the benefit of the Government
order on the ground that they have completed half of the sentence including the
remission as on 31-07-2004. There is no dispute that they have undergone half of
the sentence as on 31-07-2004. In the facts and circumstances of the case, the
Petitioners are entitled for the benefit of G.O.Ms.No.189 Home (Prisons-C)
Department, dated 07-08-2004 and consequently the Non-bailable Warrants(NBWs)
issued by the learned II Additional Sessions Judge, Kadapa at Proddatur are
liable to be recalled. The 1st Respondent shall consider the case of the
Petitioners in accordance with the above said G.O and pass appropriate orders
thereon within a period of three(3) months from the date of receipt of a copy of
this order.
Accordingly, W.P.No.7795 of 2010 is allowed. W.P.No.5440 of 2010 is
dismissed.
Miscellaneous Petitions pending, if any, in both the writ petitions shall
stand closed. In the circumstances, there shall be no order as to costs.
THE HONOURABLE SRI JUSTICE A.RAMALINGESWARA RAO
W.P.Nos.5440 OF 2010
13-12-2013
Smt.Ambati Aruna wife of Late Murali Mohan Reddy ....petitioner
State of A.P. rep. by its Principal Secretary, Home Department and others..
Respondents
Counsel for the petitioner : Sri Nagarju Naguru
Counsel for the Respondent: Government Pleader for Hom
<Gist:
>Head Note:
?Cases referred:
1.AIR 2000 S.C.890
2.1994 CRL.L.J 533
THE HON'BLE SRI JUSTICE A. RAMALINGESWARA RAO
W.P.NOS.5440 & 7795 OF 2010
COMMON ORDER:-
The facts in these two cases are similar and hence they are disposed of by
this common order.
W.P.No.5440 of 2010
The husband of the Petitioner was murdered due to political rivalry on 07-
06-1992. The case was tried in S.C.No.5 of 1994 by the learned II Additional
Sessions Judge, Kadapa at Proddatur and sentenced Accused Nos.2 to 7 with
imprisonment for life by judgment dated 27-02-1998 for the offence under
Sections 302 read with 149 IPC. All the accused preferred two appeals before
this court in Crl.A.Nos.408 and 409 of 1998 and this court by judgment dated 11-
02-1999 allowed Crl.A.No.408 of 1998 filed by A-2 and modified the conviction
and sentence in respect of A-2 to A-7 in Crl.A.No.409 of 1998 to a punishment
under Section 304-II IPC and sentenced them to undergo rigorous imprisonment for
a period of four(4) years with fine of Rs.5,000/- each in default to suffer
rigorous imprisonment for one year. Accused No.7 was acquitted of all charges
levelled against him. The accused preferred Crl.A.Nos.1342 and 1343 of 1999
before the Supreme Court and the same was dismissed on 18-11-2004 confirming the
judgment of this court in Crl.A.Nos.408 and 409 of 1998 dated 11-02-1999.
2. It is the case of the Petitioner that A-3 to A-6 were in jail from 27-02-
1998 to the date bail was granted by the Apex Court in Crl.A.No.1343 of 1999 for
about a period of 15 months and when no action was taken to apprehend A-3 to A-6
the present writ petition was filed for taking further action consequent to the
dismissal of the appeal by the Supreme Court.
3. The 1st Respondent filed a counter-affidavit admitting the facts leading
to the disposal of Criminal Appeal by the Hon'ble Supreme Court of India and
stating that A-3 to A-6 were in jail for a period of 23 months 5 days. It was
also stated that A-6 Bemu Narasimha Reddy son of Sesha Reddy died on
28-02-2004. It is stated that for execution of the NBWs issued by the learned II
Additional Sessions Judge, Kadapa at Proddatur against A-3 to A-6, a special
team was constituted headed by the Sub-Inspector of Police, Mannur Police
Station for apprehending the accused in order to produce before the court but
they were absconding and hence the NBWs could not be executed. During the
pendency of the execution of NBWs, A-3 to A-5 approached this court and filed
W.P.No.7795 of 2010 and this court at the admission stage granted interim orders
as follows:-
"Post on 23-04-2010.
Prima facie, G.O.Ms.No.189, Home (Prisons) department, dated 07-08-2004, applies
to the cases of the Petitioners as by the time of issuance of the said G.O, the
Petitioners are stated to have undergone imprisonment for more than half of the
sentence imposed on them.
In view of the same, the Respondents are directed not to arrest the
Petitioners for a period of two weeks."
4. It is further stated that in obedience to the interim order, the police
are unable to execute the NBWs issued against A-3 to A-6 who filed W.P.No.7795
of 2010.
5. The 2nd Respondent filed a counter-affidavit stating that the certified
copy of the order in Crl.A.No.1342 and 1343 of 1999 dated 18-11-2004 was sent by
the Hon'ble Registrar General, Supreme Court of India by covering letter dated
10-02-2005 and the same was received in the Court of II Additional Sessions
Judge, Kadapa at Proddatur on 23-02-2005. On the same day records were also
received from the Apex Court. On 27-06-2005 the then Additional District Judge
sent the records in S.C.No.5 of 1994 to the Central Record Room, District Court,
Kadapa without issuing warrants to the A-3 to A-6 for the reasons best known to
him and thereafter there were no records available on the file of the Court of
II Additional Sessions Judge, kadapa at Proddatur with regard to S.C.No.5 of
1994. After nearly five (5) years the writ petitioner sent a fax message to the
Principal District Judge, Kadapa on 22-02-2010 and the same was forwarded to the
II Additional Sessions Judge, Kadapa for taking necessary action against the
accused. On 10-03-2010 the Registrar General, High Court of A.P has sent a fax
message to the Principal District Judge, Kadapa along with a copy of petition
and affidavit in W.P.No.5440 of 2010 filed by the Petitioner and requested to
send para wise remarks and connected records and the same was communicated to
the II Additional Sessions Judge, Kadapa at Proddatur on the same day. Some
correspondence ensued and searches were conducted for the records and it
revealed that A-3 to A-6 were released on bail on 01-02-2000 and the time spent
by them in judicial custody and imprisonment after conviction are as follows:-
"A-3 and A-6 were in remand during the following period:
1.During the Crime stage from 1-06-1992 to 07-12-1992 i.e., 5 months 28
days at Central Prison, Kadapa.
2. A-4 and A-6 were in remand in Sub-Jail, Rajampet.
From the date of Judgment in S.C.No.5/94 till the date of release of accused
basing on the bail order of Hon'ble Supreme Court i.e., from 27-02-1998 to 01-
02-2000 i.e., 23 months 5 days. All the accused were at Central Prison, Kadapa."
Thus they were in jail for a total period of 29 months 3 days. On 15-03-2010 the
2nd Respondent issued Non-bailable Warrants(NBW) against A-3 to A-6 and
forwarded them to the Judicial First Class Magistrate, Rajampet for execution
and as and when they are produced before the court after execution of the NBWs,
the 2nd Respondent would take immediate action against the accused.
W.P.No.7795 of 2010.
6. This writ petition was filed by A-3 to A-5 in S.C.No.5 of 1994 stating
that the learned Sessions Judge convicted the Petitioners under Section 148 and
302 of IPC and sentenced them to undergo rigorous imprisonment for one year and
a fine of Rs.100/- under Section 148 IPC and imprisonment for life and fine of
Rs.100/- under Section 302 IPC and ordered that both sentences should run
concurrently. Aggrieved by the said conviction and sentence, they preferred
Crl.A.No.409 of 1998 and the conviction and sentence passed by the trial court
was modified into one under Section 304-II IPC and sentenced all the Petitioners
to undergo rigorous imprisonment for a period of four years and to pay a fine of
Rs.5000/-. The State carried the matter to the Supreme Court in Crl.A.No.1343 of
1999 and when the matter was pending before the Supreme Court they were granted
bail and were released from jail on 01-02-2000. Ultimately, the appeal was
dismissed on 18-11-2004. According to the Petitioners, they served the sentence
for a period of two years 8 months including judicial remand, actual sentence
and remission granted by the jail authorities. The Government issued
G.O.Ms.No.189, Home (Prisons-C) Department, dated 07-08-2004 and as per Clause
2(a) of the said G.O, all the convicted prisoners other than life convicts who
have undergone half of the sentence including remission as on 31-07-2004 are
entitled for release. On enquiry they came to know that the widow of the
deceased in the case filed W.P.No.5440 of 2010 seeking their arrest and the
Respondents without verifying the fact issued warrants yielding to political
pressures even after issuance of G.O. Hence they sought a writ of Mandamus
declaring that they undergone and served the total sentence imposed on them by
virtue of the remission granted by the 1st Respondent in G.O.Ms.No.189, Home
(Prisons-C) Department, dated 07-08-2004 and consequently for a declaration that
the issuance of the NBWs is illegal.
7. The 2nd Respondent filed a counter-affidavit stating that the Petitioners
have undergone a total sentence as shown hereunder as on 01-02-2000.
Sl.No
Name
Actual Sentence
Y-M-D
Remand period
Y-M-D
Remission
Y-M-D
Total sentence undergone
Y-M-D
1
K.Gangi Reddy
01-11-04
0-06-01
0-04-15
02-09-20
2
M.V.Subba Reddy
01-11-04
0-04-05
0-04-15
02-07-24
3
M.Srinuvasulu Reddy
01-11-04
0-04-27
0-04-07
02-08-08
It was further stated that at the time of issuance of G.O.Ms.No.189, Home
(Prisons-C) Department, dated 07-08-2004, the Petitioners were on bail and hence
they are not eligible/entitled for grant of remission in terms of the said G.O.
Further in Circular No.SA2/423/2004 dated 13-08-2004 issued by the Director
General & Inspector General of Prisons & Correctional Services, A.P., Hyderabad
all the Superintendents of Jails were informed that prisoners who are not in the
prison as on the date of issuance of G.O, are not entitled to be released. It
was further stated that the Petitioners are not serving sentence as on the date
of issuance of G.O and hence they are not entitled for the benefit.
8. Heard the learned counsel for the Petitioners, the counsel for the
Respondents and the learned Government Pleader for Home.
9. The learned counsel for the Petitioner in W.P.No.5440 of 2010 submits that
since the Petitioners in W.P.No.7795 of 2010 were not in prison as on the date
of issuance of G.O.Ms.No.189, dated 07-08-2004, they are not entitled for the
relief granted under the said Government order. He relied on a decision reported
in State of Haryana and others Vs. Mohinder Singh(1). He contends that in view
of the Circular dated 13-08-2004 issued by the Director General & Inspector
General of Prisons, A.P., Hyderabad which says that prisoners who are not in
prison and overstaying on Parole/Furlough unauthorisedly are not entitled to be
released. The Petitioners in W.P.No.7795 of 2010 were not in prison as on the
date of the issuance of the Government order and hence in view of the Circular,
they are not entitled to get the benefit of the Government order. On the other
hand, Sri T.Bali Reddy, the learned Senior Counsel appearing for the Petitioners
in W.P.No.7795 of 2010 relied on Full Bench Judgment of this Court in Indian
Association of Lawyers(A.P.Chapter) Vs. The Principal Secretary, Home Department
and Others (2). He drew the attention of this court to the observations of the
Division Bench quoted by the Full Bench in the aforesaid decision, which reads
as under:-
"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."
He also relied on the observations of the Full Bench to the effect that when the
convicts were released on bail, they were actually undergoing their sentence
pending their appeal. Therefore, they were prisoners and they should not be
actually undergoing imprisonment. Hence the benefit of G.O.Ms.No.189 should be
extended to the Petitioners also.
10. The learned Government Pleader for Home submitted that the Government
Order does not confer any right on the Petitioners and it is only an order
enabling the authorities to consider the cases of the prisoners who are entitled
for the benefit of the said Government Order. It is also submitted by the
learned Government Pleader that the Petitioners should surrender before the
authorities and claim benefit under any Government Order thereafter and each
case will be considered by the Committee which recommends to the Government for
consideration.
11. A perusal of the G.O.Ms.No.189, Home (Prisons-C) Department, dated 07-08-
2004 shows that the said G.O was issued on 07-08-2004 and it is applicable to
all the convicted prisoners other than life convicts who have undergone half of
the sentence including remission as on 31-07-2004. As on 31-07-2004 the appeals
were pending before the Apex Court and the Petitioners were on bail. As per the
Memo No.SA2/423/2004-Vol.3, dated 13-08-2004 issued by the Director General &
Inspector General of Prisons and Correctional Services, Andhra Pradesh,
Hyderabad the prisoners who are not in prison and overstaying on Parole/Furlough
unauthorisedly as on that date are not entitled to get the benefit of the said
Government order.
12. There is no dispute with regard to the facts of the case. The Petitioners
in W.P.No.7795 of 2010 were convicted by the Criminal Court in S.C.No.5 of 1994
on 27-02-1998. They filed Criminal Appeal Nos.1408 and 1409 of 1998 before this
Court. The appeals were allowed on 11-02-1999 modifying the sentences awarded by
the Sessions Court and convicting the accused under Section 304-II IPC for a
period of four(4) years. Against the said Criminal Appeals, the Petitioners and
the State filed Appeals before the Hon'ble Supreme Court and they were granted
bail on 01-02-2000. Ultimately, the Hon'ble Supreme Court dismissed the appeals
on 18-11-2004.
13. The argument of the learned counsel for the Petitioner in W.P.No.5440 of
2010 and the learned Government Pleader for Home is based on the Circular
bearing No.SA2/423/2004-Vol.3, dated 13-08-2004 issued by the Director General &
Inspector General of Prisons, Andhra Pradesh, Hyderabad and the relevant portion
of the Circular is as follows:-
"1. Prisoners who are not in Prison and overstaying on Parole/Furlough
unauthorizedly are not entitled to be released even if their names are found in
the Annexure to the G.O 3rd cited."
Basing on the said Circular, it is contended by the learned Counsel that the
prisoners should be in prison as on the date of issuance of the Government order
in order to get benefit of the order. It is apparently based on misconception.
The Circular came to be issued on the request of the Superintendents of Jails
seeking clarification with regard to the release of prisoners who were
overstaying on Parole/Furlough unauthorisedly and some of the prisoners who are
convicted to substantive as well as default sentences. The Petitioners in
W.P.No.7795 of 2010 do not fall in the said category. However, the learned
counsel split the sentences extracted portion above and submit that prisoners
who are not in prison as one category and those who are overstaying on
Parole/Furlough unauthorisedly as another category and contend that since the
convicted Petitioners were not in prison as on the date of the Government order,
they are not entitled for the relief. The Circular came to be issued only in
respect of the category of prisoners who are overstaying on Parole/Furlough
unauthoirsedly and a reading of the entire sentence makes it clear by the
adjunctives "and" it cannot be split into two categories. Thus the submission of
the learned counsel for the Petitioner and the learned Government Pleader is
untenable, a reading of the Circular makes it clear. But in the counter-
affidavit filed by the Director General & Inspector General of Prisons, Andhra
Pradesh, Hyderabad, a different interpretation which was unwarranted was given.
It is stated in the counter-affidavit that according to Instruction No.1 in the
Circular, the benefit of the said Government order can be extended only to the
prisoners who are rendering sentences on the date when the Government order was
issued. This meaning was not attributed in the Circular but given a new meaning
in the counter. Hence in order to apply the benefit of the Government order, the
convicted prisoners need not be in prison as on the date of the Government
order. While considering the case of the terms bail/parole/furlough, the Hon'ble
Supreme Court in the decision in State of Haryana and others case(1st cited),
observed as follows:-
"Terms bail, furlough and parole have different connotations. Bail is well
understood in criminal jurisprudence. Provisions of bail are contained in
Chapter XXXIII of the code. It is granted by the officer-in-charge of a police
station or by the Court when a person is arrested and is accused of an offence
other than non-bailable offence. When a person is convicted of an offence he can
be released on bail by the appellate court till his appeal is decided. If he is
acquitted his bail bonds are discharged and if appeal dismissed he is taken into
custody. Bail can be granted subject to conditions. It does not appear to be
quite material that during the pendency of appeal though his sentence is
suspended he nevertheless remains a convict. For the exercise of powers under
Section 432, it may perhaps be relevant that the State Government may remit the
whole or any part of the punishment to which a person has been sentenced even
though his appeal against conviction and sentence was pending at that time.
Appeal in that case might have to abate inasmuch as the person convicted has to
accept the conditions on which State Government remits the whole or in part of
his punishment."
In the said decision, the Supreme Court referred to an earlier decision of
Nalamolu Appala Swamy Vs. State of Andhra Pradesh [ 1998 Supp (2) SCC 192]
wherein it was observed as follows:-
"We find merit in the contention because the scheme of remission
formulated under the GO is with reference to the period of sentence actually
undergone by different classes of prisoners and in the case of some the period
of actual sentence together with the remissions earned for reckoning the total
sentence. The GO does not stipulate that in order to get the benefit of
remission the prisoners must actually be in jail on the date of GO was issued."
14. In the instant case, the Petitioners are not claiming the remission for
the period they were on bail but they are claiming the benefit of the Government
order on the ground that they have completed half of the sentence including the
remission as on 31-07-2004. There is no dispute that they have undergone half of
the sentence as on 31-07-2004. In the facts and circumstances of the case, the
Petitioners are entitled for the benefit of G.O.Ms.No.189 Home (Prisons-C)
Department, dated 07-08-2004 and consequently the Non-bailable Warrants(NBWs)
issued by the learned II Additional Sessions Judge, Kadapa at Proddatur are
liable to be recalled. The 1st Respondent shall consider the case of the
Petitioners in accordance with the above said G.O and pass appropriate orders
thereon within a period of three(3) months from the date of receipt of a copy of
this order.
Accordingly, W.P.No.7795 of 2010 is allowed. W.P.No.5440 of 2010 is
dismissed.
Miscellaneous Petitions pending, if any, in both the writ petitions shall
stand closed. In the circumstances, there shall be no order as to costs.
_______________________
A.RAMALINGESWARA RAO,J
13-12-2013
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