Special Remission to convicts under G.O.Ms.No.283 Home (Prisons.C) Department dated 30.10.2010 - Respondents not granted as the accused killed the public servant while in duty - writ - their Lordships of High court held that deceased is a public servant , the accused are not entitled for remission as per G.O. and dismissed the writ petitions =
the action of the respondents in not
granting special remission to the convicts,pursuant to
G.O.Ms. No.283 Home (Prisons.C) Department dated 30.10.2010 is questioned as
being illegal, arbitrary and in violation of principles of natural justice. A
consequential direction is sought to the respondents to give them the benefit of
G.O.Ms. No.283 dated 30.10.2010, and to release the convicts forthwith.=
It is the petitioners case that all the convicts, in this batch of Writ
Petitions, are entitled to be released from prison in terms of para 3 of G.O.Ms.
No.283 dated 30.10.2010; and para 4(iv) of the said G.O. has no application as
the deceased was neither a "public servant" under Section 21 IPC nor was he "on
duty" when he was murdered.
VI. CONCLUSION:
As the deceased Sri M.A. Qudeer was murdered while on duty, albeit on the night
of 09.11.1992, para 4(iv) of the G.O.Ms. No.283 dated 30.10.2010 is attracted
and all the convicts herein are persons convicted of the murder of a "public
servant on duty". They are not entitled, therefore, for being granted special
remission of sentence in terms of para 3 of the said G.O, and the respondents
cannot be faulted in not giving them the said benefit.
All the Writ Petitions fail and are, accordingly, dismissed. The
miscellaneous petitions pending, if any, shall also stand dismissed. There
shall be no order as to costs.
2014 (March. Part) judis.nic.in/judis_andhra/filename=11990
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION NOs.4222 of 2011 AND BATCH
11-03-2014
Mujeebunissa Begum W/o.Mohd. Irfan.... Petitioner
Government of A.P., rep. by its Principal Secretary, Home Department,
Secretariat, Hyderabad and another.....Respondents
Counsel for the petitioner: Smt.Pushpinder Kaur.
Counsel for respondents: Learned Government Pleader for Home
<GIST:
>HEAD NOTE:
?Citations:
1 (2006) 8 SCC 161
2 (2000) 5 SCC 170
3 (1981) 1 SCC 107
4 (1999) 7 SCC 355
5 (2003) 10 SCC 78
6 (2004) 1 SCC 616
7 (1976) 1 SCC 157
8 AIR 1975 Punjab & Haryana 148 (FB)
9 (1989) 1 SCC 204
10 (1998) 4 SCC 75
11 AIR 2000 S.C. 937
12 AIR 1966 AP 35 (FB)
13 AIR 1984 SC 684
14 (1969) 1 SCC 142
15 1982 Crl. L.J. 961
16 AIR 1986 SC 312
17 1991 Crl.L.J. 2068
18 (1990) 4 SCC 406
19 (1995) 2 SCC 768
20 AIR 1967 SC 1318
21 12 Bom FCR 1
22 Judgment in WP No.22823 of 2009, dated 28.01.2010
23 Judgment in W.P. No.24583 of 2009 dated 21.01.2010
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN
W.P.Nos.4222, 9733, 16800 of 2011, 20680 of 2012 & 36235 of 2013
COMMON ORDER:
In this batch of Writ Petitions the action of the respondents in not
granting special remission to the convicts, (in Sessions Case No.112 of 1997 on
the file of the IV Additional Metropolitan Sessions Judge, Hyderabad undergoing
sentence in Cherlapalli Central Prison, Ranga Reddy District), pursuant to
G.O.Ms. No.283 Home (Prisons.C) Department dated 30.10.2010 is questioned as
being illegal, arbitrary and in violation of principles of natural justice. A
consequential direction is sought to the respondents to give them the benefit of
G.O.Ms. No.283 dated 30.10.2010, and to release the convicts forthwith.
The convicts in these Writ Petitions are Accused Nos.2 to 5 and 9 in
S.C.No.112/97. They were convicted for killing Sri M.A. Qadeer, (the then
Deputy Secretary of the A.P. State Wakf Board), by the IV Additional
Metropolitan Sessions Judge, Hyderabad on 24.01.2003, for offences under
Sections 302, 404, 301 and 120-B I.P.C, and were sentenced to life imprisonment.
The appeals preferred thereagainst were dismissed by this Court in Criminal
Appeal No.141 of 2003 and batch dated 17.10.2003. All the convicts are
undergoing life sentence in Cherlapalli Central Prison, Hyderabad. They have
undergone actual sentence of 7 years, and a total sentence of 10 years including
remission, as on 31.12.2010.
It is the petitioners case that all the convicts, in this batch of Writ
Petitions, are entitled to be released from prison in terms of para 3 of G.O.Ms.
No.283 dated 30.10.2010; and para 4(iv) of the said G.O. has no application as
the deceased was neither a "public servant" under Section 21 IPC nor was he "on
duty" when he was murdered.
In the counter-affidavit, filed on behalf of the 3rd respondent, it is stated
that para 4(iv) of G.O.Ms. No.283 dated 30.10.2010 disentitles prisoners,
convicted of the murder of a public servant on duty, from being granted
remission; the convicts, in these Writ Petitions, were involved in the murder
of the Deputy Secretary of the A.P. State Wakf Board; under Rule 11 of the
Andhra Pradesh Fundamental Rules, a Government servant is on duty all around the
clock, 24 hours a day; and the case of these life convicts was not favourably
considered for release, in view the prohibition in clause (iv) of para 4 of
G.O.Ms. No.283 Home (Pri.C) Department dt.30.10.2010.
Oral submissions were made, and written arguments submitted, by Smt. Pushpinder
Kaur, Learned Counsel for the petitioners. Learned Government Pleader for Home
appeared on behalf of the respondents. The contentions urged by Counsel on
either side can be conveniently examined under different heads.
I. ARTICLE 161 - ITS SCOPE:
Smt. Pushpinder Kaur, Learned Counsel for the petitioners, would submit that the
action of the respondents in not granting special remission, to the subject
convicts undergoing life sentence, in terms of G.O.Ms. No.283 Home (Prison.C)
Department dated 30.10.2010, is irrational and arbitrary; and, consequently, the
respondents should be directed to release these five convicts granting them
special remission in terms thereof.
It is necessary therefore to examine, at the outset, the scope of Article 161 of
the Constitution of India whereunder power is conferred on the Governor to grant
pardon/remission. The power to grant pardon under Article 161 is very wide and
does not contain any limitation as to the time at which and the occasion on
which and the circumstances in which the said powers can be exercised. (Epuru
Sudhakar v. Govt. of A.P.,1; Satpal v. State of Haryana2). However all public
power, including constitutional power, should not be exercised arbitrarily or
mala fide and, ordinarily, guidelines for a fair and equal exercise guarantees a
valid play of power. (Maru Ram v Union of India3; Epuru Sudhakar1). If the
Government has framed any rule, or made a scheme, for early release of convicts
then those rules or schemes will have to be treated as guidelines for the
exercise of power under Article 161 of the Constitution. (State of Haryana v.
Balwan4).
The State Government issued G.O.Ms. No.283 Home (Prisons.C) Department dated
30.10.2010 prescribing guidelines for grant of special remission to life
convicts on the occasion of Republic Day, 2011. Para 3 of the said G.O.
classifies prisoners in the State, who have been convicted by Civil Courts of
criminal jurisdiction, into different categories for grant of remission. Under
para 3(d) are those convicted prisoners who have been sentenced to imprisonment
for life, including those governed by Section 433-A CrPC, and who have undergone
an actual sentence of 7 years, and a total sentence of 10 years including
remission as on 31.12.2010. It is not in dispute that all the convicts, in this
batch of Writ Petitions, fall under Para 3(d) category of G.O.Ms. No.283 dated
30.10.2010. Under Para 4 of G.O.Ms. No.283 dated 30.10.2010 remission of
sentence, in terms of para.3 of the said G.O, has been made inapplicable to
certain categories of prisoners. Para 4 (iv) disentitles prisoners, who have
been convicted of murder of a public servant on duty, from being granted
remission of their sentence.
Remission is a boon and a concession to which no one has any vested right. As to
what classes of persons or category of offenders should be granted remission is
a matter of policy, particularly when it is also a constituent power conferred
upon the constitutional functionary and Head of the State Government. A larger
area of latitude is to be conceded in favour of such authority to decide upon
the frame and limits of its exercise under Article 161 itself. (Sanaboina
Satyanarayana v. Govt. of A.P.5). When an authority is called upon to exercise
its powers, it must do so consistently with the government
decisions/instructions prevalent at that time. If, according to the government
policy/instructions in force at the relevant time, the life convict has already
undergone sentence for the period prescribed in the policy
decision/instructions, then the only right which he can be said to have acquired
is to have his case put up, before the authorities concerned, for considering
exercise of power under Article 161 of the Constitution. Ordinarily, the
authority should exercise its powers consistently with the government
decisions/instructions prevalent at that time. (Balwan4). The grant of
remission as well as the conditions form a compendious single common pattern or
scheme of concession impregnated with a policy designed in public interest and
the safety and interests of society. There is no scope for judicial modification
or modulation so as to extend the concession beyond the object of the order made
on considerations of State policy. The scheme of remission cannot be modified or
extended to the category of prisoners which it specifically excludes. (Govt. of
A.P. v. M.T. Khan6; Sanaboina Satyanarayana5).
II. JUDICIAL REVIEW OF AN ORDER GRANTING/REFUTING TO GRANT REMISSION:
Smt. Pushpinder Kaur, Learned Counsel for the petitioners, would submit that the
offences committed, by the convicts in these Writ Petitions, cannot be said to
be offences committed against a "public servant" so as to disentitle them from
seeking remission in terms of G.O.Ms. No.283 dated 30.10.2010; the decision of
the State Government to grant remission must be in accordance with Section 432
read with Section 433A CrPC; the subject convicts are not covered by the sweep
of clause (iv) of para 4 of G.O.Ms. No.283 dated 30.10.2010; and they are
entitled to have their cases considered by the State Government for being
granted remission.
The entitlement of the convicts, to be granted the relief sought for in these
Writ Petitions, would require this court to examine the scope of judicial review
of the decision of the competent authority in refusing to grant remission. A
constitutional order, built on the founding faith of the rule of law, may posit
wide powers in high functionaries and validly exclude judge-power from eating
these forbidden fruits. Article 161 designedly and benignantly vests in the
highest Executive the humane and vast jurisdiction to remit, reprieve, respite,
commute and pardon criminals on whom judicial sentences may have been imposed.
Historically, it is a sovereign power; politically, it is a residuary power;
humanistically, it is in aid of intangible justice where imponderable factors
operate for the well-being of the community, beyond the blinkered court process.
(G. Krishta Goud & J. Bhoomaiah v. State of A.P.7). The power under Article 161
of the Constitution is of the widest amplitude and envisages myriad kinds and
categories of cases with facts and situations varying from case to case. The
exercise of power depends upon the facts and circumstances of each case, and the
necessity or justification for the exercise of that power has to be judged from
case to case. Every aspect of the exercise of the power under Article 161 does
not fall in the judicial domain. In certain cases, a particular aspect may not
be justiciable. However, even in such cases there has to exist requisite
material on the basis of which the power is exercised under Article 161 of the
Constitution. (Epuru Sudhakar1). Exercise of power under Article 161 cannot be
questioned on the ground of adequacy or inadequacy of the reasons which weighed
with the authority in the passing the order. (Hukum Singh v. State of Punjab
and Haryana8). The order of the President/Governor cannot be subjected to
judicial review on its merits. However, the function of determining whether the
act of a constitutional or statutory functionary falls within the constitutional
or legislative conferment of power, or is vitiated by self-denial on an
erroneous appreciation of the full amplitude of the power, is a matter for the
Court. (Epuru Sudhakar1; Kehar Singh v Union of India9). The Courts, except in
the rarest of rare cases, cannot be called upon to adjudicate on the
desirability or wisdom of such decisions. (Sanaboina Satyanarayana5).
The exercise or non-exercise of the pardon power by the Governor is not immune
from judicial review. Limited judicial review is available in certain cases.
(Epuru Sudhakar1). The Court, therefore, would be justified in interfering with
an order passed by the Governor, in the exercise of his power under Article 161
of the Constitution, if he is found to have exercised the power himself without
being advised by the Government or if the Governor transgresses his jurisdiction
in its exercise. The order of the Governor can be impugned on the following
grounds: (a) the order has been passed without application of mind; (b) the
order is malafide; (c) the order has been passed on extraneous or wholly
irrelevant considerations; (d) relevant materials have been kept out of
consideration; and (e) the order suffers from arbitrariness. (Epuru Sudhakar1;
Satpal2). An order passed under Article 161 of the Constitution of India is
justiciable on any of the following grounds: (1) the authority, which is
purported to have exercised the power, had no jurisdiction to exercise the same;
(2) the impugned order goes beyond the extent of the power conferred by the
provisions of law under which it is purported to be exercised; and (3) the order
has been obtained by fraud or was passed on extraneous considerations not
germane to the exercise of the power conferred or, in other words, the order is
a result of mala fide exercise of power. (Hukum Singh8). If the power under
Article 161 is exercised arbitrarily, malafide or in absolute disregard of the
finer canons of constitutionalism, the by-product order cannot get the approval
of law and, in such cases, the judicial hand must be stretched to it. (Swaran
Singh v. State of U.P.10).
While taking into consideration the societal needs, and the dictates of the
large scale gruesome events happening all over, if a conscious decision has been
taken by the policy-maker to keep out a class of anti-socials from availing the
benefit of the remission, Courts cannot, by stretching the language, confer an
undeserved benefit upon the class of convicts who have been designedly kept out
of the scheme for according the benefit of remission. (Sanaboina
Satyanarayana5). Bearing these principles in mind, let us now examine whether
the convicts, in this batch of Writ Petitions, have satisfied the conditions
stipulated in G.O.Ms. No.283 dated 30.10.2010, for it is only if they have are
they entitled to have their cases reconsidered for grant of remission.
III. SECTION 66(1) OF THE WAKF ACT, 1954, AND SEC.101 OF THE WAKF ACT,
1995 ARE DEEMING PROVISIONS AND HAVE NO APPLICATION TO OFFENCES UNDER THE
IPC:
Smt. Pushpinder Kaur, Learned Counsel for the petitioners, would rely on State
of Maharashtra v. Laljit Rajshi Shah11 to submit that, merely because the
members and officers of the Wakf Board are "deemed to be public servants" under
Section 101 of the Wakf Act, 1995, they would not, automatically, fall within
the ambit of Section 21 IPC; it is only in relation to the offences set out in
Wakf Act are the officers referred to therein, including the deceased - a Deputy
Secretary of the Wakf Board, recognised as "public servants"; such a person
would not answer the description of a "public servant" under Section 21 IPC; the
expression "public servant" has been used in Section 21 IPC for certain
purposes; the legal fiction created by the Wakf Act cannot be stretched beyond
the purpose for which the Act has been made; it would not take within its sweep
the expression "public servant", for the purpose of Section 21 IPC, as both the
Statutes are not in pari materia; the Wakf Act is a separate legislation
containing various offences and remedies; and the expression "public servant",
used in the Wakf Act, must be confined only to the offences contained and set
out in the said Act, and cannot be stretched for the purposes of Section 21 IPC.
In the counter-affidavit, filed on behalf of the 3rd respondent, it is stated
that, by his letter dated 09.12.2010, the Chief Executive Officer, A.P. State
Wakf Board had informed the 1st respondent that the deceased Sri M.A. Qadeer
(Ex.Deputy Secretary of the A.P. State Wakf Board, Hyderabad) fell under the
category of "public servant" under Section 66 of Wakf Act, 1954 corresponding to
Section 101 of the Wakf Act, 1995.
Under Section 66(1) of the Waqf Act, 1954 (similar to Section 101(1) of the Wakf
Act 1995), the Wakf Commissioner, Survey Commissioner, members of the Board,
every auditor, every officer and servant of the Board and every other person
duly appointed to discharge any duties imposed on him by the Act or any rule or
order made thereunder, shall be deemed to be "public servants" within the
meaning of Section 21 IPC. Like the aforesaid provisions of the Wakf Act,
Section 161 of the Maharashtra Co-operative Societies Act, 1960 also stipulated
that the Registrar of Co-operative Societies, among others, shall be deemed to
be a "public servant" within the meaning of Section 21 IPC. While considering
the effect of Section 161 of the Maharashtra Co-operative Societies Act, in
interpreting the provisions of Section 21 IPC, the Supreme Court, in Laljit
Rajshi Shah11, observed that the legislature, no doubt in Section 161, had
referred to the provisions of Section 21 IPC, but such reference would not make
the officers concerned 'public servants' within the ambit of Section 21 IPC; the
State Legislature had the powers to amend Section 21 IPC, the same being
referable to a legislation under Entry 1 of List III of the Seventh Schedule,
subject to Article 254(2) of the Constitution as, otherwise, inclusion of the
persons who are 'public servants' under Section 161 of the Maharashtra Co-
operative Societies Act would be repugnant to the definition of 'public servant'
under Section 21 IPC; that not having been done, it was difficult to accept the
contention that, by reference to Section 21 IPC in the deeming definition in
Section 161 of the Maharashtra Co-operataive Societies Act, the persons
concerned could be prosecuted for offences under the IPC; the Indian Penal Code
and the Maharashtra Co-operative Societies Act are not Statutes in pari materia;
the Co-operative Societies Act is a self-contained Statute with its own
provisions and has created specific offences quite different from the offences
in the Indian Penal Code; both Statutes have different objects and have created
offences with separate ingredients; this being the position, even though the
Legislature had incorporated the provisions of Section 21 IPC into the Co-
operative Societies Act in order to define a 'public servant', those 'public
servants' cannot be prosecuted for having committed offences under the IPC; a
specific category of officers, while exercising powers under specific sections,
have, by legal fiction, become a 'public servant' only for the purposes of the
Co-operative Societies Act; that, by itself, does not make those persons 'public
servants' under the IPC, so as to be prosecuted for having committed offences
under the Penal Code; and when a person is "deemed" to be something, the only
meaning possible is that, whereas he is not in reality that something, the Act
of legislature requires him to be treated as such for the purposes of the said
Act and not otherwise.
The contention of the respondents that the deceased, who is deemed to be a
"public servant" under Section 66(1) of the Wakf Act, 1954 or Section 101 of the
Wakf Act, 1995, is a "public servant" within the meaning of Section 21 IPC
necessitates rejection in view of the law declared by the Supreme Court, in
Laljit Rajshi Shah11, interpreting Section 161 of the Maharashtra Co-operative
Societies Act, a provision similar to the aforesaid provisions of the Wakf Act.
IV. IS THE DECEASED, IN S.C.NO.112 OF 1997, A "PUBLIC SERVANT" UNDER
SECTION 21(12)(a) IPC:
Smt. Pushpinder Kaur, Learned Counsel for the petitioners, would submit
that the deceased, in S.C.No.112 of 1997, was an employee of the Wakf Board, and
not in the service of the Government; he was neither in the pay of the
Government nor was he remunerated by fees or commission, for the performance of
any public duty, by the Government; and, as such, was not a "public servant"
under Section 21(12)(a) IPC.
Till the Criminal Law (Amendment) Act, 1958 (Act No. II of 1958) was put on the
statute book, Section 21 IPC consisted only of eleven clauses. Clause 12 was
introduced by the aforementioned Act and read :
'Every officer in the service or pay of a local authority or of a Corporation
engaged in any trade or industry which is established by a Central, Provincial
or State Act or of a Government Company as defined in S. 617 of the Companies
Act, 1956'.
The avowed object of the amendment was, inter alia, to bring within the scope of
the Indian Penal Code, employees of statutory trading corporations, by giving an
extended definition to the expression "public servant" in Section 21 of the
Code. The obvious intention of the legislature was to spread the net wider. (In
Re. H.V. Jagdesh12). Clause 12, introduced by Act II of 1958, was re-enacted
later as Clause 12(b). The last part in the unamended Clause (9): 'every officer
in the service or pay of the Government or remunerated by fees or commission for
the performance of any public duty' was severed from the 9th clause, and
incorporated as independent Clause (12) (a). The original Clause (12) was
deleted and was re-enacted as Clause (12) (b) with minor modifications. (R.S.
Nayak v. A.R. Antulay13).
Was the deceased, a Deputy Secretary of the A.P. State Wakf Board, a "public
servant" under Section 21 IPC for, if he was not, para 4 (iv) would not
disentitle the convicts from seeking remission, in terms of para 3 of G.O.Ms.
No.283 dated 30.10.2010, provided, of course, that the deceased was murdered
while he was on duty. Under Section 21 IPC, the words "public servant" denote a
person falling under any of the descriptions thereunder. Under Clause (12)(a) of
Section 21, every person in the service or pay of the Government or remunerated
by fees or commission for the performance of any public duty by the Government
is a "public servant". Clause (12)(a) of Sec.21 IPC would be attracted only if
the person is (i) in the service of the Government; or (ii) in the pay of the
Government; and (iii) is remunerated by fees or commission, for the performance
of any public duty, by the Government. (R.S. Nayak13). Section 48(3)[c] of the
Wakf Act, 1954 (Similar to Section 77(4)[c] of the Wakf Act, 1995) stipulates
that the Wakf Fund shall be applied for the payment of salary and allowances to
the officers' and staff of the Board. The deceased was a Deputy Secretary in
the A.P.State Wakf Board. A Deputy Secretary of the A.P. State Wakf Board is
neither in the service or pay of the Government nor is he remunerated by fees or
commission for the performance of any public duty by the Government. He would,
therefore, not be a "public servant" in terms of Section 21(12)(a) IPC.
V. IS THE DECEASED A "PUBLIC SERVANT" UNDER SECTION 21(12)(B) IPC?
On the scope of Clause (12) (b) of Section 21 IPC, Smt. Pushpinder Kaur, Learned
Counsel for the petitioners, would submit that the Indian Penal Code was amended
by Amending Act 40 of 1964; the original clauses (9) and (12) were deleted, and
re-enacted as Clause (12)(b) with minor modifications; and the Deputy Secretary
of the Wakf Board does not fall in any of the categories of "public servants"
under Section 21 IPC.
Section 21(12)(b) IPC stipulates that every person, in the service or pay of a
local authority, a corporation established by or under a Central, Provincial or
State Act or a Government Company as defined in Section 617 of the Companies
Act, 1956, is a "public servant". In Akhtar Alam v. State of Bihar14, the
question which arose for consideration was whether the appellant therein was a
public servant within the meaning of the twelfth clause in Section 21, Indian
Penal Code, as it stood after the Criminal Law (Amendment) Act, 1958 (Act 2 of
1958). Under Explanation 4 to Section 21(12) IPC the expression "corporation
engaged in any trade or industry" included a banking, insurance or financial
corporation, a river valley corporation and a corporation for supplying power,
light or water to the public. The Supreme Court held that the appellant, who
was in the service of the State Electricity Board, fell within the language of
Explanation 4; and was a "public servant" under Section 21 IPC.
Clause (12) of Section 21 IPC, as it stood after the Criminal Law (Amendment
Act) 1958, was amended and renumbered as Clause (12)(b) after deleting the words
"engaged in any trade or industry" and Explanation 4 therefrom. The object of
the amendment is to widen the net further and bring every person in the service
or pay of a corporation, established by or under a Central, provincial or State
Act, within the ambit of the definition of a "public servant" under Section 21
IPC. Unlike the pre-amended Clause (12) which confined the ambit of Section 21
IPC only to persons in the service and pay of a corporation engaged in any trade
or industry, now persons in the service and pay of all corporations established
by or under a Central or State Act are also brought within the ambit of Clause
(12)(b) of Section 21 IPC.
In Republic of India v. Khagendranath Jha15 the Orissa High Court held that the
State Bank of India was established by the State Bank of India Act, 1955; and,
by virtue of Section 21(12)(b) of the Indian Penal Code, a person in the service
of State Bank of India was a "public servant". In State through CBI v. O.P.
Dogra16, the Supreme Court held that employees of the Life Insurance Corporation
of India came within the definition of the term 'public servant' under Section
21 IPC. In Rajendra Vithalrao Suryavanshi v. State of Maharashtra17, the
Bombay High Court held that United India Insurance Company Limited is one of the
companies acquired by the General Insurance Corporation of India; this
Corporation came to be formed as a result of statutory legislation, namely,
General Insurance Business (Nationalisation) Act, 1972; Rule 1(3) of the Rules
framed under the Act makes the Rules applicable to every person appointed to any
post under the General Insurance Corporation of India or its subsidiary Company;
and, therefore, an employee of a subsidiary company becomes a public servant
under clause 12(b) of Section 21 IPC. In Ashoka Marketing Ltd. v. Punjab
National Bank18, and Union of India v. Ashok Kumar Mitra19, the Supreme Court
held that, keeping in view the provisions of the Banks Nationalisation Act, a
nationalised bank is a corporation established by a Central Act; it is owned and
controlled by the Central Government; and the employees of Corporations, which
are owned and controlled by the Central Government and are established by a
Central Act, are "public servants".
A. IS THE WAKF BOARD A CORPORATION ESTABLISHED BY OR UNDER A CENTRAL ACT?
The Wakf Act, 1995 (Act 43 of 1995) (hereinafter called the "1995 Act") came
into force on 01.01.1996. The deceased was murdered on 09.11.1992. It is the
earlier Wakf Act, 1954 (Act 29 of 1954) (hereinafter called the '1954 Act'),
which was in force at the relevant time. Both the "1954 Act" and the "1995 Act"
are Acts of Parliament, and are Central Acts as referred to under Section
21(12)(b) IPC. Under Section 9(1) of the 1954 Act (similar to Section 13(1) of
the 1995 Act), with effect from such date as the State Government may by
notification in the Official Gazette appoint in this behalf, there shall be
established a Board of Wakfs under such name as may be specified in the
notification. Under Section 15(1) of the 1954 Act, (similar to Section 32(1) of
the 1995 Act), subject to the rules that may be made under the Act, the general
superintendence of all wakfs in a State in relation to all matters, except those
which are expressly required by the Act to be dealt with by the Wakf
Commissioner, shall vest in the Board established for the State, and it shall be
the duty of the Board to exercise its powers under the Act to ensure that the
wakfs, under its superintendence, are properly maintained, controlled and
administered and the income thereof is duly applied to the objects and the
purposes for which such wakfs were created or intended. Section 21-B(1) of the
1954 Act, (similar to Section 24 of the 1995 Act), empowers the Board to have
the assistance of such number of officers and other employees as may be
necessary for the efficient performance of his or its functions under the Act.
Section 9(2) of the 1954 Act, and Section 13(3)(3) of the 1995 Act, stipulate
that the Board shall be a body corporate having perpetual succession and a
common seal with power to acquire and hold property and to transfer any such
property subject to such conditions and restrictions as may be prescribed and
shall by the said name sue and be sued. Black's Law Dictionary Sixth Edition
defines a "body corporate" to mean a public or private corporation. A body
Corporate is a corporation. It is called a body corporate, because the persons
are made into a body politic and are of capacity to take, grant, etc., by a
particular name. An incorporated company is a body corporate. (P. Ramanatha
Aiyer: The Law Lexicon 2nd Edition). The Board of Wakfs is a body corporate.
Though it is subject to the control of the State Government, it is a statutory
corporation and is vested with statutory powers, functions and duties. (Syed
Yousuf Yar Khan v. Syed Mohd. Yar Khan20).
The deceased was an officer of the A.P. State Wakf Board in the cadre of a
Deputy Secretary. An "officer" is one to whom is delegated, by the supreme
authority, some portion of its regulating and coercive powers or who is
appointed to represent the State in its relations to individual subjects. The
word "officer" means some person employed to exercise to some extent, and in
certain circumstances, a delegated function of the Government. He is either
himself armed with some authority or representative character or his duties are
immediately auxiliary to those of someone who is so armed. The word officium
principally implies a duty and, in the next place, the charge of such duty. It
is a rule that where one man hath to do with another's affairs against his will,
and without his leave, that it is an office, and he who is in it is an officer.'
(Akhtar Alam14; Beg. v. Ramaji Rao Jivhaji21). In order to determine whether a
person is an officer of the Corporation within the meaning of Section 21 IPC,
the true test is: (1) whether he is in the service or pay of the corporation,
and (2) whether he is himself either armed with some authority or representative
character by the corporation or whether his duties are immediately auxiliary to
those of some one who is armed with such authority or representative character.
A person, performing duties immediately auxiliary to those of the Head of the
office, is an officer. (Akhtar Alam14). The deceased, a Deputy Secretary, was
assisting the Special Officer of the Wakf Boad who was an I.A.S. Officer
discharging statutory functions under the Wakf Act. The deceased was paid his
salary from the Wakf fund, as stipulated in Section 48(3)[c] of the 1954 Act
(similar to Section 77(4)[c] of the 1995 Act). He was an officer in the pay of
the Wakf Board, a corporation established by and under a Central Act i.e, the
Wakf Act, and is a "public servant" under Section 21(12)(b) IPC.
B. WAS THE DECEASED, A PUBLIC SERVANT, MURDERED WHILE HE WAS ON DUTY?
Smt. Pushpinder Kaur, Learned Counsel for the petitioners, would submit that the
deceased was not actually on duty when he was killed; and the expression "on
duty" should be read and understood as a person actually performing his duty as
a public servant. She would rely on Thakkidi Ram Reddy v. Govt. of A.P.22, and
Sri M. Pullaiah v. The Government of A.P.23, in this regard.
In Thakkidi Ram Reddy22, a Division bench of this Court observed:
".....The other contention raised by Sri C. Padmanabha Reddy, learned Senior
Counsel appearing for the petitioners was that the deceased-Sarpanch was not
actually on duty when he was done to death. In other words, it was his
contention that the expression employed in this Section "on duty" should be read
and understood as a public servant, who was actually performing the duty. It is
his further contention that at the time of his death, since the deceased-
Sarpanch was not performing any public duty, the same shall not be treated as
killing up of a public servant "on duty".
In this context, since we have already expressed our view as regards the
first part of the expression "public servant" as contained in G.O.Ms.No.338,
Home (Prisons-C) Department, dated 24.7.2009, and eventually held that a
Sarpanch or a Upa-Sarpanch cannot be held to be a public servant, virtually the
examination of the second part regarding whether the deceased-Sarpanch was
actually 'on duty' or not, is rather superfluous. Therefore, we are not
expressing any view on that aspect......." (emphasis
supplied)
As the question whether the deceased was actually "on duty" was not decided in
Thakkidi Ram Reddy22, reliance placed thereupon is misplaced. In order to
answer the question whether the deceased was murdered, by the convicts in this
batch of Writ Petitions, while "on duty", it is necessary to refer to the facts
noted in the judgment of the IV Additional Metropolitan Sessions Judge,
Hyderabad in S.C.No.112 of 1997 dated 24.01.2003. The said judgment records
that the deceased Sri M.A. Quadeer was a Deputy Secretary of the A.P. State Wakf
Board looking after the establishment section, and was handling cases relating
to disputed properties; the Special Officer Sri Shaik Saad Hussain, IAS (LW.1)
was the Head of the Wakf Board, and was the deceased's superior; A1 was working
as the orderly/watchman of the Special Officer (LW.1) at his building under
demolition at Chintal Basti, Khairatabad; A2 was working as the Personal
Assistant to the Special Officer (LW.1); A5 was the Official Driver of the
Special Officer (LW.1); A1 had introduced A4 and A6 to the Special Officer
(LW.1) soliciting their appointment in the Wakf Board; A2 managed to obtain the
endorsement of the Special Officer (LW.1) for his higher grade appointment in
the Wakf Board, and for the appointment of his brother-in-law Sk. Mohd. Khasim
in the services of the Wakf Board; A5 had obtained the endorsement of the
Special Officer (LW.1) for appointment of his cousin Mohd. Abdul Salam in the
Wakf Board; the deceased had objected to the aforesaid retention and
appointments, and had got them rejected by the Special Officer (LW.1); taking
advantage of the disputes over wakf properties, including Razzak Manzil, A1, A2
and A5 had threatened the deceased asking him to either resign or meet his
death; on 25.10.1992, A1, A2 and A5 hired Mohd. Nayeem, a rowdy, to kill the
deceased; the deceased left his office at 6.00 P.M. on 09.11.1992; A1 telephoned
the residence of the deceased at 7.10 P.M. and 7.50 P.M.; the deceased's nephew
answered the phone as the deceased had not yet returned home; A1 introduced
himself as Sri Shaik Saad Hussain, and asked Sri M.A. Faheem (nephew of the
deceased) to send the deceased to the building at Chintal Basti; when the
deceased came home at about 8.15 P.M, Sri M.A. Faheem informed him of the
telephone calls; the deceased telephoned the house of the Special Officer (LW.1)
to ascertain the purpose of the calls; as the phone of the Special Officer
(LW.1) was dead, the deceased left his house and proceeded, to the under
demolition building, in an auto; 10 minutes thereafter, A1 telephoned the house
of the deceased, and was informed by Sri M.A. Faheem that the deceased had
already left his house; A1, A2 and A5 then hurried back, and were waiting for
the deceased at the under demolition building; at about 9.15 P.M. the deceased
reached the said premises; A1, who was waiting outside, took him inside the gate
through its small side door stating that their boss was inside; and, thereafter,
the deceased was strangulated to death with a nylon rope.
It is evident that the deceased went to the building at Chintalbasti in
the belief that the Special Officer (LW.1), below whom he was working, had
called him there. The visit of the deceased, to the subject building late at
night, was therefore in the discharge of his official duties; and the deceased
must be held to have been murdered while on duty.
The question which arose for consideration before this Court, in, M. Pullaiah23
was whether or not the deceased therein, who was working as an LDC in ESI
hospital, fell within the definition of a "public servant on duty"? It is in
this context that this Court held that the deceased could not be termed as a
public servant, within the meaning of Section 21 IPC, as, even according to the
charge sheet, there were disputes between the wife and husband; the husband
i.e., the convict used to demand additional dowry; the alleged incident took
place at about 11.30 A.M. on 03.08.1999 when the deceased was at home; and the
deceased was not a public servant on duty. Unlike in M. Pullaiah23 the
deceased, in the present case, was under the belief that he was summoned by his
superior, the Special Officer of the Wakf Board, when he went to the dilapidated
building late at night. As the visit of the deceased to the building, where he
was murdered, was in the belief that he was discharging his duties as the Deputy
Secretary of the A.P. State Wakf Board, reliance placed on the judgment in M.
Pullaiah23 is misplaced.
VI. CONCLUSION:
As the deceased Sri M.A. Qudeer was murdered while on duty, albeit on the night
of 09.11.1992, para 4(iv) of the G.O.Ms. No.283 dated 30.10.2010 is attracted
and all the convicts herein are persons convicted of the murder of a "public
servant on duty". They are not entitled, therefore, for being granted special
remission of sentence in terms of para 3 of the said G.O, and the respondents
cannot be faulted in not giving them the said benefit.
All the Writ Petitions fail and are, accordingly, dismissed. The
miscellaneous petitions pending, if any, shall also stand dismissed. There
shall be no order as to costs.
_____________________________
RAMESH RANGANATHAN, J
Date:11-03-2014
the action of the respondents in not
granting special remission to the convicts,pursuant to
G.O.Ms. No.283 Home (Prisons.C) Department dated 30.10.2010 is questioned as
being illegal, arbitrary and in violation of principles of natural justice. A
consequential direction is sought to the respondents to give them the benefit of
G.O.Ms. No.283 dated 30.10.2010, and to release the convicts forthwith.=
It is the petitioners case that all the convicts, in this batch of Writ
Petitions, are entitled to be released from prison in terms of para 3 of G.O.Ms.
No.283 dated 30.10.2010; and para 4(iv) of the said G.O. has no application as
the deceased was neither a "public servant" under Section 21 IPC nor was he "on
duty" when he was murdered.
VI. CONCLUSION:
As the deceased Sri M.A. Qudeer was murdered while on duty, albeit on the night
of 09.11.1992, para 4(iv) of the G.O.Ms. No.283 dated 30.10.2010 is attracted
and all the convicts herein are persons convicted of the murder of a "public
servant on duty". They are not entitled, therefore, for being granted special
remission of sentence in terms of para 3 of the said G.O, and the respondents
cannot be faulted in not giving them the said benefit.
All the Writ Petitions fail and are, accordingly, dismissed. The
miscellaneous petitions pending, if any, shall also stand dismissed. There
shall be no order as to costs.
2014 (March. Part) judis.nic.in/judis_andhra/filename=11990
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION NOs.4222 of 2011 AND BATCH
11-03-2014
Mujeebunissa Begum W/o.Mohd. Irfan.... Petitioner
Government of A.P., rep. by its Principal Secretary, Home Department,
Secretariat, Hyderabad and another.....Respondents
Counsel for the petitioner: Smt.Pushpinder Kaur.
Counsel for respondents: Learned Government Pleader for Home
<GIST:
>HEAD NOTE:
?Citations:
1 (2006) 8 SCC 161
2 (2000) 5 SCC 170
3 (1981) 1 SCC 107
4 (1999) 7 SCC 355
5 (2003) 10 SCC 78
6 (2004) 1 SCC 616
7 (1976) 1 SCC 157
8 AIR 1975 Punjab & Haryana 148 (FB)
9 (1989) 1 SCC 204
10 (1998) 4 SCC 75
11 AIR 2000 S.C. 937
12 AIR 1966 AP 35 (FB)
13 AIR 1984 SC 684
14 (1969) 1 SCC 142
15 1982 Crl. L.J. 961
16 AIR 1986 SC 312
17 1991 Crl.L.J. 2068
18 (1990) 4 SCC 406
19 (1995) 2 SCC 768
20 AIR 1967 SC 1318
21 12 Bom FCR 1
22 Judgment in WP No.22823 of 2009, dated 28.01.2010
23 Judgment in W.P. No.24583 of 2009 dated 21.01.2010
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN
W.P.Nos.4222, 9733, 16800 of 2011, 20680 of 2012 & 36235 of 2013
COMMON ORDER:
In this batch of Writ Petitions the action of the respondents in not
granting special remission to the convicts, (in Sessions Case No.112 of 1997 on
the file of the IV Additional Metropolitan Sessions Judge, Hyderabad undergoing
sentence in Cherlapalli Central Prison, Ranga Reddy District), pursuant to
G.O.Ms. No.283 Home (Prisons.C) Department dated 30.10.2010 is questioned as
being illegal, arbitrary and in violation of principles of natural justice. A
consequential direction is sought to the respondents to give them the benefit of
G.O.Ms. No.283 dated 30.10.2010, and to release the convicts forthwith.
The convicts in these Writ Petitions are Accused Nos.2 to 5 and 9 in
S.C.No.112/97. They were convicted for killing Sri M.A. Qadeer, (the then
Deputy Secretary of the A.P. State Wakf Board), by the IV Additional
Metropolitan Sessions Judge, Hyderabad on 24.01.2003, for offences under
Sections 302, 404, 301 and 120-B I.P.C, and were sentenced to life imprisonment.
The appeals preferred thereagainst were dismissed by this Court in Criminal
Appeal No.141 of 2003 and batch dated 17.10.2003. All the convicts are
undergoing life sentence in Cherlapalli Central Prison, Hyderabad. They have
undergone actual sentence of 7 years, and a total sentence of 10 years including
remission, as on 31.12.2010.
It is the petitioners case that all the convicts, in this batch of Writ
Petitions, are entitled to be released from prison in terms of para 3 of G.O.Ms.
No.283 dated 30.10.2010; and para 4(iv) of the said G.O. has no application as
the deceased was neither a "public servant" under Section 21 IPC nor was he "on
duty" when he was murdered.
In the counter-affidavit, filed on behalf of the 3rd respondent, it is stated
that para 4(iv) of G.O.Ms. No.283 dated 30.10.2010 disentitles prisoners,
convicted of the murder of a public servant on duty, from being granted
remission; the convicts, in these Writ Petitions, were involved in the murder
of the Deputy Secretary of the A.P. State Wakf Board; under Rule 11 of the
Andhra Pradesh Fundamental Rules, a Government servant is on duty all around the
clock, 24 hours a day; and the case of these life convicts was not favourably
considered for release, in view the prohibition in clause (iv) of para 4 of
G.O.Ms. No.283 Home (Pri.C) Department dt.30.10.2010.
Oral submissions were made, and written arguments submitted, by Smt. Pushpinder
Kaur, Learned Counsel for the petitioners. Learned Government Pleader for Home
appeared on behalf of the respondents. The contentions urged by Counsel on
either side can be conveniently examined under different heads.
I. ARTICLE 161 - ITS SCOPE:
Smt. Pushpinder Kaur, Learned Counsel for the petitioners, would submit that the
action of the respondents in not granting special remission, to the subject
convicts undergoing life sentence, in terms of G.O.Ms. No.283 Home (Prison.C)
Department dated 30.10.2010, is irrational and arbitrary; and, consequently, the
respondents should be directed to release these five convicts granting them
special remission in terms thereof.
It is necessary therefore to examine, at the outset, the scope of Article 161 of
the Constitution of India whereunder power is conferred on the Governor to grant
pardon/remission. The power to grant pardon under Article 161 is very wide and
does not contain any limitation as to the time at which and the occasion on
which and the circumstances in which the said powers can be exercised. (Epuru
Sudhakar v. Govt. of A.P.,1; Satpal v. State of Haryana2). However all public
power, including constitutional power, should not be exercised arbitrarily or
mala fide and, ordinarily, guidelines for a fair and equal exercise guarantees a
valid play of power. (Maru Ram v Union of India3; Epuru Sudhakar1). If the
Government has framed any rule, or made a scheme, for early release of convicts
then those rules or schemes will have to be treated as guidelines for the
exercise of power under Article 161 of the Constitution. (State of Haryana v.
Balwan4).
The State Government issued G.O.Ms. No.283 Home (Prisons.C) Department dated
30.10.2010 prescribing guidelines for grant of special remission to life
convicts on the occasion of Republic Day, 2011. Para 3 of the said G.O.
classifies prisoners in the State, who have been convicted by Civil Courts of
criminal jurisdiction, into different categories for grant of remission. Under
para 3(d) are those convicted prisoners who have been sentenced to imprisonment
for life, including those governed by Section 433-A CrPC, and who have undergone
an actual sentence of 7 years, and a total sentence of 10 years including
remission as on 31.12.2010. It is not in dispute that all the convicts, in this
batch of Writ Petitions, fall under Para 3(d) category of G.O.Ms. No.283 dated
30.10.2010. Under Para 4 of G.O.Ms. No.283 dated 30.10.2010 remission of
sentence, in terms of para.3 of the said G.O, has been made inapplicable to
certain categories of prisoners. Para 4 (iv) disentitles prisoners, who have
been convicted of murder of a public servant on duty, from being granted
remission of their sentence.
Remission is a boon and a concession to which no one has any vested right. As to
what classes of persons or category of offenders should be granted remission is
a matter of policy, particularly when it is also a constituent power conferred
upon the constitutional functionary and Head of the State Government. A larger
area of latitude is to be conceded in favour of such authority to decide upon
the frame and limits of its exercise under Article 161 itself. (Sanaboina
Satyanarayana v. Govt. of A.P.5). When an authority is called upon to exercise
its powers, it must do so consistently with the government
decisions/instructions prevalent at that time. If, according to the government
policy/instructions in force at the relevant time, the life convict has already
undergone sentence for the period prescribed in the policy
decision/instructions, then the only right which he can be said to have acquired
is to have his case put up, before the authorities concerned, for considering
exercise of power under Article 161 of the Constitution. Ordinarily, the
authority should exercise its powers consistently with the government
decisions/instructions prevalent at that time. (Balwan4). The grant of
remission as well as the conditions form a compendious single common pattern or
scheme of concession impregnated with a policy designed in public interest and
the safety and interests of society. There is no scope for judicial modification
or modulation so as to extend the concession beyond the object of the order made
on considerations of State policy. The scheme of remission cannot be modified or
extended to the category of prisoners which it specifically excludes. (Govt. of
A.P. v. M.T. Khan6; Sanaboina Satyanarayana5).
II. JUDICIAL REVIEW OF AN ORDER GRANTING/REFUTING TO GRANT REMISSION:
Smt. Pushpinder Kaur, Learned Counsel for the petitioners, would submit that the
offences committed, by the convicts in these Writ Petitions, cannot be said to
be offences committed against a "public servant" so as to disentitle them from
seeking remission in terms of G.O.Ms. No.283 dated 30.10.2010; the decision of
the State Government to grant remission must be in accordance with Section 432
read with Section 433A CrPC; the subject convicts are not covered by the sweep
of clause (iv) of para 4 of G.O.Ms. No.283 dated 30.10.2010; and they are
entitled to have their cases considered by the State Government for being
granted remission.
The entitlement of the convicts, to be granted the relief sought for in these
Writ Petitions, would require this court to examine the scope of judicial review
of the decision of the competent authority in refusing to grant remission. A
constitutional order, built on the founding faith of the rule of law, may posit
wide powers in high functionaries and validly exclude judge-power from eating
these forbidden fruits. Article 161 designedly and benignantly vests in the
highest Executive the humane and vast jurisdiction to remit, reprieve, respite,
commute and pardon criminals on whom judicial sentences may have been imposed.
Historically, it is a sovereign power; politically, it is a residuary power;
humanistically, it is in aid of intangible justice where imponderable factors
operate for the well-being of the community, beyond the blinkered court process.
(G. Krishta Goud & J. Bhoomaiah v. State of A.P.7). The power under Article 161
of the Constitution is of the widest amplitude and envisages myriad kinds and
categories of cases with facts and situations varying from case to case. The
exercise of power depends upon the facts and circumstances of each case, and the
necessity or justification for the exercise of that power has to be judged from
case to case. Every aspect of the exercise of the power under Article 161 does
not fall in the judicial domain. In certain cases, a particular aspect may not
be justiciable. However, even in such cases there has to exist requisite
material on the basis of which the power is exercised under Article 161 of the
Constitution. (Epuru Sudhakar1). Exercise of power under Article 161 cannot be
questioned on the ground of adequacy or inadequacy of the reasons which weighed
with the authority in the passing the order. (Hukum Singh v. State of Punjab
and Haryana8). The order of the President/Governor cannot be subjected to
judicial review on its merits. However, the function of determining whether the
act of a constitutional or statutory functionary falls within the constitutional
or legislative conferment of power, or is vitiated by self-denial on an
erroneous appreciation of the full amplitude of the power, is a matter for the
Court. (Epuru Sudhakar1; Kehar Singh v Union of India9). The Courts, except in
the rarest of rare cases, cannot be called upon to adjudicate on the
desirability or wisdom of such decisions. (Sanaboina Satyanarayana5).
The exercise or non-exercise of the pardon power by the Governor is not immune
from judicial review. Limited judicial review is available in certain cases.
(Epuru Sudhakar1). The Court, therefore, would be justified in interfering with
an order passed by the Governor, in the exercise of his power under Article 161
of the Constitution, if he is found to have exercised the power himself without
being advised by the Government or if the Governor transgresses his jurisdiction
in its exercise. The order of the Governor can be impugned on the following
grounds: (a) the order has been passed without application of mind; (b) the
order is malafide; (c) the order has been passed on extraneous or wholly
irrelevant considerations; (d) relevant materials have been kept out of
consideration; and (e) the order suffers from arbitrariness. (Epuru Sudhakar1;
Satpal2). An order passed under Article 161 of the Constitution of India is
justiciable on any of the following grounds: (1) the authority, which is
purported to have exercised the power, had no jurisdiction to exercise the same;
(2) the impugned order goes beyond the extent of the power conferred by the
provisions of law under which it is purported to be exercised; and (3) the order
has been obtained by fraud or was passed on extraneous considerations not
germane to the exercise of the power conferred or, in other words, the order is
a result of mala fide exercise of power. (Hukum Singh8). If the power under
Article 161 is exercised arbitrarily, malafide or in absolute disregard of the
finer canons of constitutionalism, the by-product order cannot get the approval
of law and, in such cases, the judicial hand must be stretched to it. (Swaran
Singh v. State of U.P.10).
While taking into consideration the societal needs, and the dictates of the
large scale gruesome events happening all over, if a conscious decision has been
taken by the policy-maker to keep out a class of anti-socials from availing the
benefit of the remission, Courts cannot, by stretching the language, confer an
undeserved benefit upon the class of convicts who have been designedly kept out
of the scheme for according the benefit of remission. (Sanaboina
Satyanarayana5). Bearing these principles in mind, let us now examine whether
the convicts, in this batch of Writ Petitions, have satisfied the conditions
stipulated in G.O.Ms. No.283 dated 30.10.2010, for it is only if they have are
they entitled to have their cases reconsidered for grant of remission.
III. SECTION 66(1) OF THE WAKF ACT, 1954, AND SEC.101 OF THE WAKF ACT,
1995 ARE DEEMING PROVISIONS AND HAVE NO APPLICATION TO OFFENCES UNDER THE
IPC:
Smt. Pushpinder Kaur, Learned Counsel for the petitioners, would rely on State
of Maharashtra v. Laljit Rajshi Shah11 to submit that, merely because the
members and officers of the Wakf Board are "deemed to be public servants" under
Section 101 of the Wakf Act, 1995, they would not, automatically, fall within
the ambit of Section 21 IPC; it is only in relation to the offences set out in
Wakf Act are the officers referred to therein, including the deceased - a Deputy
Secretary of the Wakf Board, recognised as "public servants"; such a person
would not answer the description of a "public servant" under Section 21 IPC; the
expression "public servant" has been used in Section 21 IPC for certain
purposes; the legal fiction created by the Wakf Act cannot be stretched beyond
the purpose for which the Act has been made; it would not take within its sweep
the expression "public servant", for the purpose of Section 21 IPC, as both the
Statutes are not in pari materia; the Wakf Act is a separate legislation
containing various offences and remedies; and the expression "public servant",
used in the Wakf Act, must be confined only to the offences contained and set
out in the said Act, and cannot be stretched for the purposes of Section 21 IPC.
In the counter-affidavit, filed on behalf of the 3rd respondent, it is stated
that, by his letter dated 09.12.2010, the Chief Executive Officer, A.P. State
Wakf Board had informed the 1st respondent that the deceased Sri M.A. Qadeer
(Ex.Deputy Secretary of the A.P. State Wakf Board, Hyderabad) fell under the
category of "public servant" under Section 66 of Wakf Act, 1954 corresponding to
Section 101 of the Wakf Act, 1995.
Under Section 66(1) of the Waqf Act, 1954 (similar to Section 101(1) of the Wakf
Act 1995), the Wakf Commissioner, Survey Commissioner, members of the Board,
every auditor, every officer and servant of the Board and every other person
duly appointed to discharge any duties imposed on him by the Act or any rule or
order made thereunder, shall be deemed to be "public servants" within the
meaning of Section 21 IPC. Like the aforesaid provisions of the Wakf Act,
Section 161 of the Maharashtra Co-operative Societies Act, 1960 also stipulated
that the Registrar of Co-operative Societies, among others, shall be deemed to
be a "public servant" within the meaning of Section 21 IPC. While considering
the effect of Section 161 of the Maharashtra Co-operative Societies Act, in
interpreting the provisions of Section 21 IPC, the Supreme Court, in Laljit
Rajshi Shah11, observed that the legislature, no doubt in Section 161, had
referred to the provisions of Section 21 IPC, but such reference would not make
the officers concerned 'public servants' within the ambit of Section 21 IPC; the
State Legislature had the powers to amend Section 21 IPC, the same being
referable to a legislation under Entry 1 of List III of the Seventh Schedule,
subject to Article 254(2) of the Constitution as, otherwise, inclusion of the
persons who are 'public servants' under Section 161 of the Maharashtra Co-
operative Societies Act would be repugnant to the definition of 'public servant'
under Section 21 IPC; that not having been done, it was difficult to accept the
contention that, by reference to Section 21 IPC in the deeming definition in
Section 161 of the Maharashtra Co-operataive Societies Act, the persons
concerned could be prosecuted for offences under the IPC; the Indian Penal Code
and the Maharashtra Co-operative Societies Act are not Statutes in pari materia;
the Co-operative Societies Act is a self-contained Statute with its own
provisions and has created specific offences quite different from the offences
in the Indian Penal Code; both Statutes have different objects and have created
offences with separate ingredients; this being the position, even though the
Legislature had incorporated the provisions of Section 21 IPC into the Co-
operative Societies Act in order to define a 'public servant', those 'public
servants' cannot be prosecuted for having committed offences under the IPC; a
specific category of officers, while exercising powers under specific sections,
have, by legal fiction, become a 'public servant' only for the purposes of the
Co-operative Societies Act; that, by itself, does not make those persons 'public
servants' under the IPC, so as to be prosecuted for having committed offences
under the Penal Code; and when a person is "deemed" to be something, the only
meaning possible is that, whereas he is not in reality that something, the Act
of legislature requires him to be treated as such for the purposes of the said
Act and not otherwise.
The contention of the respondents that the deceased, who is deemed to be a
"public servant" under Section 66(1) of the Wakf Act, 1954 or Section 101 of the
Wakf Act, 1995, is a "public servant" within the meaning of Section 21 IPC
necessitates rejection in view of the law declared by the Supreme Court, in
Laljit Rajshi Shah11, interpreting Section 161 of the Maharashtra Co-operative
Societies Act, a provision similar to the aforesaid provisions of the Wakf Act.
IV. IS THE DECEASED, IN S.C.NO.112 OF 1997, A "PUBLIC SERVANT" UNDER
SECTION 21(12)(a) IPC:
Smt. Pushpinder Kaur, Learned Counsel for the petitioners, would submit
that the deceased, in S.C.No.112 of 1997, was an employee of the Wakf Board, and
not in the service of the Government; he was neither in the pay of the
Government nor was he remunerated by fees or commission, for the performance of
any public duty, by the Government; and, as such, was not a "public servant"
under Section 21(12)(a) IPC.
Till the Criminal Law (Amendment) Act, 1958 (Act No. II of 1958) was put on the
statute book, Section 21 IPC consisted only of eleven clauses. Clause 12 was
introduced by the aforementioned Act and read :
'Every officer in the service or pay of a local authority or of a Corporation
engaged in any trade or industry which is established by a Central, Provincial
or State Act or of a Government Company as defined in S. 617 of the Companies
Act, 1956'.
The avowed object of the amendment was, inter alia, to bring within the scope of
the Indian Penal Code, employees of statutory trading corporations, by giving an
extended definition to the expression "public servant" in Section 21 of the
Code. The obvious intention of the legislature was to spread the net wider. (In
Re. H.V. Jagdesh12). Clause 12, introduced by Act II of 1958, was re-enacted
later as Clause 12(b). The last part in the unamended Clause (9): 'every officer
in the service or pay of the Government or remunerated by fees or commission for
the performance of any public duty' was severed from the 9th clause, and
incorporated as independent Clause (12) (a). The original Clause (12) was
deleted and was re-enacted as Clause (12) (b) with minor modifications. (R.S.
Nayak v. A.R. Antulay13).
Was the deceased, a Deputy Secretary of the A.P. State Wakf Board, a "public
servant" under Section 21 IPC for, if he was not, para 4 (iv) would not
disentitle the convicts from seeking remission, in terms of para 3 of G.O.Ms.
No.283 dated 30.10.2010, provided, of course, that the deceased was murdered
while he was on duty. Under Section 21 IPC, the words "public servant" denote a
person falling under any of the descriptions thereunder. Under Clause (12)(a) of
Section 21, every person in the service or pay of the Government or remunerated
by fees or commission for the performance of any public duty by the Government
is a "public servant". Clause (12)(a) of Sec.21 IPC would be attracted only if
the person is (i) in the service of the Government; or (ii) in the pay of the
Government; and (iii) is remunerated by fees or commission, for the performance
of any public duty, by the Government. (R.S. Nayak13). Section 48(3)[c] of the
Wakf Act, 1954 (Similar to Section 77(4)[c] of the Wakf Act, 1995) stipulates
that the Wakf Fund shall be applied for the payment of salary and allowances to
the officers' and staff of the Board. The deceased was a Deputy Secretary in
the A.P.State Wakf Board. A Deputy Secretary of the A.P. State Wakf Board is
neither in the service or pay of the Government nor is he remunerated by fees or
commission for the performance of any public duty by the Government. He would,
therefore, not be a "public servant" in terms of Section 21(12)(a) IPC.
V. IS THE DECEASED A "PUBLIC SERVANT" UNDER SECTION 21(12)(B) IPC?
On the scope of Clause (12) (b) of Section 21 IPC, Smt. Pushpinder Kaur, Learned
Counsel for the petitioners, would submit that the Indian Penal Code was amended
by Amending Act 40 of 1964; the original clauses (9) and (12) were deleted, and
re-enacted as Clause (12)(b) with minor modifications; and the Deputy Secretary
of the Wakf Board does not fall in any of the categories of "public servants"
under Section 21 IPC.
Section 21(12)(b) IPC stipulates that every person, in the service or pay of a
local authority, a corporation established by or under a Central, Provincial or
State Act or a Government Company as defined in Section 617 of the Companies
Act, 1956, is a "public servant". In Akhtar Alam v. State of Bihar14, the
question which arose for consideration was whether the appellant therein was a
public servant within the meaning of the twelfth clause in Section 21, Indian
Penal Code, as it stood after the Criminal Law (Amendment) Act, 1958 (Act 2 of
1958). Under Explanation 4 to Section 21(12) IPC the expression "corporation
engaged in any trade or industry" included a banking, insurance or financial
corporation, a river valley corporation and a corporation for supplying power,
light or water to the public. The Supreme Court held that the appellant, who
was in the service of the State Electricity Board, fell within the language of
Explanation 4; and was a "public servant" under Section 21 IPC.
Clause (12) of Section 21 IPC, as it stood after the Criminal Law (Amendment
Act) 1958, was amended and renumbered as Clause (12)(b) after deleting the words
"engaged in any trade or industry" and Explanation 4 therefrom. The object of
the amendment is to widen the net further and bring every person in the service
or pay of a corporation, established by or under a Central, provincial or State
Act, within the ambit of the definition of a "public servant" under Section 21
IPC. Unlike the pre-amended Clause (12) which confined the ambit of Section 21
IPC only to persons in the service and pay of a corporation engaged in any trade
or industry, now persons in the service and pay of all corporations established
by or under a Central or State Act are also brought within the ambit of Clause
(12)(b) of Section 21 IPC.
In Republic of India v. Khagendranath Jha15 the Orissa High Court held that the
State Bank of India was established by the State Bank of India Act, 1955; and,
by virtue of Section 21(12)(b) of the Indian Penal Code, a person in the service
of State Bank of India was a "public servant". In State through CBI v. O.P.
Dogra16, the Supreme Court held that employees of the Life Insurance Corporation
of India came within the definition of the term 'public servant' under Section
21 IPC. In Rajendra Vithalrao Suryavanshi v. State of Maharashtra17, the
Bombay High Court held that United India Insurance Company Limited is one of the
companies acquired by the General Insurance Corporation of India; this
Corporation came to be formed as a result of statutory legislation, namely,
General Insurance Business (Nationalisation) Act, 1972; Rule 1(3) of the Rules
framed under the Act makes the Rules applicable to every person appointed to any
post under the General Insurance Corporation of India or its subsidiary Company;
and, therefore, an employee of a subsidiary company becomes a public servant
under clause 12(b) of Section 21 IPC. In Ashoka Marketing Ltd. v. Punjab
National Bank18, and Union of India v. Ashok Kumar Mitra19, the Supreme Court
held that, keeping in view the provisions of the Banks Nationalisation Act, a
nationalised bank is a corporation established by a Central Act; it is owned and
controlled by the Central Government; and the employees of Corporations, which
are owned and controlled by the Central Government and are established by a
Central Act, are "public servants".
A. IS THE WAKF BOARD A CORPORATION ESTABLISHED BY OR UNDER A CENTRAL ACT?
The Wakf Act, 1995 (Act 43 of 1995) (hereinafter called the "1995 Act") came
into force on 01.01.1996. The deceased was murdered on 09.11.1992. It is the
earlier Wakf Act, 1954 (Act 29 of 1954) (hereinafter called the '1954 Act'),
which was in force at the relevant time. Both the "1954 Act" and the "1995 Act"
are Acts of Parliament, and are Central Acts as referred to under Section
21(12)(b) IPC. Under Section 9(1) of the 1954 Act (similar to Section 13(1) of
the 1995 Act), with effect from such date as the State Government may by
notification in the Official Gazette appoint in this behalf, there shall be
established a Board of Wakfs under such name as may be specified in the
notification. Under Section 15(1) of the 1954 Act, (similar to Section 32(1) of
the 1995 Act), subject to the rules that may be made under the Act, the general
superintendence of all wakfs in a State in relation to all matters, except those
which are expressly required by the Act to be dealt with by the Wakf
Commissioner, shall vest in the Board established for the State, and it shall be
the duty of the Board to exercise its powers under the Act to ensure that the
wakfs, under its superintendence, are properly maintained, controlled and
administered and the income thereof is duly applied to the objects and the
purposes for which such wakfs were created or intended. Section 21-B(1) of the
1954 Act, (similar to Section 24 of the 1995 Act), empowers the Board to have
the assistance of such number of officers and other employees as may be
necessary for the efficient performance of his or its functions under the Act.
Section 9(2) of the 1954 Act, and Section 13(3)(3) of the 1995 Act, stipulate
that the Board shall be a body corporate having perpetual succession and a
common seal with power to acquire and hold property and to transfer any such
property subject to such conditions and restrictions as may be prescribed and
shall by the said name sue and be sued. Black's Law Dictionary Sixth Edition
defines a "body corporate" to mean a public or private corporation. A body
Corporate is a corporation. It is called a body corporate, because the persons
are made into a body politic and are of capacity to take, grant, etc., by a
particular name. An incorporated company is a body corporate. (P. Ramanatha
Aiyer: The Law Lexicon 2nd Edition). The Board of Wakfs is a body corporate.
Though it is subject to the control of the State Government, it is a statutory
corporation and is vested with statutory powers, functions and duties. (Syed
Yousuf Yar Khan v. Syed Mohd. Yar Khan20).
The deceased was an officer of the A.P. State Wakf Board in the cadre of a
Deputy Secretary. An "officer" is one to whom is delegated, by the supreme
authority, some portion of its regulating and coercive powers or who is
appointed to represent the State in its relations to individual subjects. The
word "officer" means some person employed to exercise to some extent, and in
certain circumstances, a delegated function of the Government. He is either
himself armed with some authority or representative character or his duties are
immediately auxiliary to those of someone who is so armed. The word officium
principally implies a duty and, in the next place, the charge of such duty. It
is a rule that where one man hath to do with another's affairs against his will,
and without his leave, that it is an office, and he who is in it is an officer.'
(Akhtar Alam14; Beg. v. Ramaji Rao Jivhaji21). In order to determine whether a
person is an officer of the Corporation within the meaning of Section 21 IPC,
the true test is: (1) whether he is in the service or pay of the corporation,
and (2) whether he is himself either armed with some authority or representative
character by the corporation or whether his duties are immediately auxiliary to
those of some one who is armed with such authority or representative character.
A person, performing duties immediately auxiliary to those of the Head of the
office, is an officer. (Akhtar Alam14). The deceased, a Deputy Secretary, was
assisting the Special Officer of the Wakf Boad who was an I.A.S. Officer
discharging statutory functions under the Wakf Act. The deceased was paid his
salary from the Wakf fund, as stipulated in Section 48(3)[c] of the 1954 Act
(similar to Section 77(4)[c] of the 1995 Act). He was an officer in the pay of
the Wakf Board, a corporation established by and under a Central Act i.e, the
Wakf Act, and is a "public servant" under Section 21(12)(b) IPC.
B. WAS THE DECEASED, A PUBLIC SERVANT, MURDERED WHILE HE WAS ON DUTY?
Smt. Pushpinder Kaur, Learned Counsel for the petitioners, would submit that the
deceased was not actually on duty when he was killed; and the expression "on
duty" should be read and understood as a person actually performing his duty as
a public servant. She would rely on Thakkidi Ram Reddy v. Govt. of A.P.22, and
Sri M. Pullaiah v. The Government of A.P.23, in this regard.
In Thakkidi Ram Reddy22, a Division bench of this Court observed:
".....The other contention raised by Sri C. Padmanabha Reddy, learned Senior
Counsel appearing for the petitioners was that the deceased-Sarpanch was not
actually on duty when he was done to death. In other words, it was his
contention that the expression employed in this Section "on duty" should be read
and understood as a public servant, who was actually performing the duty. It is
his further contention that at the time of his death, since the deceased-
Sarpanch was not performing any public duty, the same shall not be treated as
killing up of a public servant "on duty".
In this context, since we have already expressed our view as regards the
first part of the expression "public servant" as contained in G.O.Ms.No.338,
Home (Prisons-C) Department, dated 24.7.2009, and eventually held that a
Sarpanch or a Upa-Sarpanch cannot be held to be a public servant, virtually the
examination of the second part regarding whether the deceased-Sarpanch was
actually 'on duty' or not, is rather superfluous. Therefore, we are not
expressing any view on that aspect......." (emphasis
supplied)
As the question whether the deceased was actually "on duty" was not decided in
Thakkidi Ram Reddy22, reliance placed thereupon is misplaced. In order to
answer the question whether the deceased was murdered, by the convicts in this
batch of Writ Petitions, while "on duty", it is necessary to refer to the facts
noted in the judgment of the IV Additional Metropolitan Sessions Judge,
Hyderabad in S.C.No.112 of 1997 dated 24.01.2003. The said judgment records
that the deceased Sri M.A. Quadeer was a Deputy Secretary of the A.P. State Wakf
Board looking after the establishment section, and was handling cases relating
to disputed properties; the Special Officer Sri Shaik Saad Hussain, IAS (LW.1)
was the Head of the Wakf Board, and was the deceased's superior; A1 was working
as the orderly/watchman of the Special Officer (LW.1) at his building under
demolition at Chintal Basti, Khairatabad; A2 was working as the Personal
Assistant to the Special Officer (LW.1); A5 was the Official Driver of the
Special Officer (LW.1); A1 had introduced A4 and A6 to the Special Officer
(LW.1) soliciting their appointment in the Wakf Board; A2 managed to obtain the
endorsement of the Special Officer (LW.1) for his higher grade appointment in
the Wakf Board, and for the appointment of his brother-in-law Sk. Mohd. Khasim
in the services of the Wakf Board; A5 had obtained the endorsement of the
Special Officer (LW.1) for appointment of his cousin Mohd. Abdul Salam in the
Wakf Board; the deceased had objected to the aforesaid retention and
appointments, and had got them rejected by the Special Officer (LW.1); taking
advantage of the disputes over wakf properties, including Razzak Manzil, A1, A2
and A5 had threatened the deceased asking him to either resign or meet his
death; on 25.10.1992, A1, A2 and A5 hired Mohd. Nayeem, a rowdy, to kill the
deceased; the deceased left his office at 6.00 P.M. on 09.11.1992; A1 telephoned
the residence of the deceased at 7.10 P.M. and 7.50 P.M.; the deceased's nephew
answered the phone as the deceased had not yet returned home; A1 introduced
himself as Sri Shaik Saad Hussain, and asked Sri M.A. Faheem (nephew of the
deceased) to send the deceased to the building at Chintal Basti; when the
deceased came home at about 8.15 P.M, Sri M.A. Faheem informed him of the
telephone calls; the deceased telephoned the house of the Special Officer (LW.1)
to ascertain the purpose of the calls; as the phone of the Special Officer
(LW.1) was dead, the deceased left his house and proceeded, to the under
demolition building, in an auto; 10 minutes thereafter, A1 telephoned the house
of the deceased, and was informed by Sri M.A. Faheem that the deceased had
already left his house; A1, A2 and A5 then hurried back, and were waiting for
the deceased at the under demolition building; at about 9.15 P.M. the deceased
reached the said premises; A1, who was waiting outside, took him inside the gate
through its small side door stating that their boss was inside; and, thereafter,
the deceased was strangulated to death with a nylon rope.
It is evident that the deceased went to the building at Chintalbasti in
the belief that the Special Officer (LW.1), below whom he was working, had
called him there. The visit of the deceased, to the subject building late at
night, was therefore in the discharge of his official duties; and the deceased
must be held to have been murdered while on duty.
The question which arose for consideration before this Court, in, M. Pullaiah23
was whether or not the deceased therein, who was working as an LDC in ESI
hospital, fell within the definition of a "public servant on duty"? It is in
this context that this Court held that the deceased could not be termed as a
public servant, within the meaning of Section 21 IPC, as, even according to the
charge sheet, there were disputes between the wife and husband; the husband
i.e., the convict used to demand additional dowry; the alleged incident took
place at about 11.30 A.M. on 03.08.1999 when the deceased was at home; and the
deceased was not a public servant on duty. Unlike in M. Pullaiah23 the
deceased, in the present case, was under the belief that he was summoned by his
superior, the Special Officer of the Wakf Board, when he went to the dilapidated
building late at night. As the visit of the deceased to the building, where he
was murdered, was in the belief that he was discharging his duties as the Deputy
Secretary of the A.P. State Wakf Board, reliance placed on the judgment in M.
Pullaiah23 is misplaced.
VI. CONCLUSION:
As the deceased Sri M.A. Qudeer was murdered while on duty, albeit on the night
of 09.11.1992, para 4(iv) of the G.O.Ms. No.283 dated 30.10.2010 is attracted
and all the convicts herein are persons convicted of the murder of a "public
servant on duty". They are not entitled, therefore, for being granted special
remission of sentence in terms of para 3 of the said G.O, and the respondents
cannot be faulted in not giving them the said benefit.
All the Writ Petitions fail and are, accordingly, dismissed. The
miscellaneous petitions pending, if any, shall also stand dismissed. There
shall be no order as to costs.
_____________________________
RAMESH RANGANATHAN, J
Date:11-03-2014
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