* HON'BLE SRI JUSTICE V.ESWARAIAH AND HON'BLE SRI JUSTICE B.N. RAO NALLA +W.P. No. 22740 of 2010 %22-11-2010 # Sheelam Ramesh and another ….petitioners Vs. $ The Principal Secretary to Government, (Home Prisons-C) Department, Government of Andhra Pradesh, Hyderabad and another …. Respondents !Counsel for the Petitioners: Sri C. Padmanabha Reddy Counsel for Respondent Advocate General <Gist : >Head Note: ? Cases referred: O R D E R: (per Hon’ble Sri Justice V. Eswaraiah) Heard Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the petitioners and Smt. B. Mohana Reddy, learned Assistant Government Pleader, who is attached to the learned Advocate General and perused the material placed on record. This Court, on 02.11.2010, pending writ petition, made the following order: 1. The petitioners seek to issue writ of Habeas Corpus directing the respondents to produce the petitioners before this Court and order their release by holding their continuous detention in prison as illegal and contrary to the orders of the Government in G.O. Ms. No. 338 Home (Prisons-C) Department dated 24.7.2009 and judgment of this Court in W.P. No. 24436 of 2009 dated 16.12.2009. 2. The petitioners are A-2 and A-3 in Sessions Case No. 90 of 1994 on the file of the Sessions Judge, Karimnagar and they are convicted of the offences punishable under Sec.302 read with Sec.34 IPC, Sec.27 of the Arms Act, 1959, Sec. 3(2)(i) (ii) and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1989 and sentenced to undergo imprisonment for life. 3. The Government, in G.O. Ms. No. 338 Home (Prisons- C) Department dated 24.7.2009, has issued guidelines giving one time exemption to the orders issued earlier by it in G.O. Ms. No. 17 Home (Prison-B.2) Department dated 17.1.2003 to consider certain categories of prisoners in the State, who have been convicted by the civil courts of criminal jurisdiction, as enumerated in para (3) and (4) of the said G.O. Remission of sentence in respect of prisoners mentioned para (3) of the said G.O. shall not apply to certain categories of the prisoners. According to the petitioners, they are entitled to one time exemption as per the aforesaid GO and they do not come within the exceptions. As the said orders of the Government are not implemented insofar as the petitioners are concerned, they filed W.P. No.24436 of 2009, and a Division Bench of this Court by orders dated 16.12.2009, held that the petitioners do not fall under any of the clauses mentioned in para (4) of the aforesaid G.O. and that they are entitled to the special remission as per the said G.O. It is further held that the exception in GO Ms. No. 17 dated 17.1.2003 are different and distinct from that of the exceptions in G.O. Ms. No. 338 Home (Prisons-C) Department dated 24.7.2009 and the petitioners do not come within the exceptions of G.O. Ms. No. 338 dated 24.7.2009 and are not specifically barred for being extended the benefit of the special remission under G.O. Ms. No. 338 dated 24.7.2009 and they are entitled to the benefit of special remission and, therefore, the cases of the petitioners ought to have been considered by the respondents for extending the benefit of special remission. Accordingly, the respondents were directed to consider the cases of the petitioners once again keeping in view the distinction between G.O. Ms. No. 196 dated 7.8.2007 and the present GO Ms. No.338 dated 24.7.2009. Pursuant to the aforesaid directions, the Director General and Inspector General of Prisons and C.S., vide Letter No.321/SB2/2009 dated 01.02.2010, opined that the cases of these two petitioners deserve consideration in view of the aforesaid direction of this Court and also since the Sections under which they were convicted i.e. Sec.27 of Arms Act and 3(2)(i)(ii) and 5 of TADA Acts besides Sec. 302 IPC are not the ineligible/prohibitive conditions disqualifying them for grant of special remission as per G.O. Ms. No. 338 dated 24.7.2009. On a representation made by the counsel for the petitioners, the Director and Inspector General of Prisons, vide Letter dated 27.8.2010, informed the counsel for the petitioners that the case is pending with the Government. Pursuant to the aforesaid direction of this Court in the above writ petition, a High Level Committee constituted under G.O. Ms. No. 338 dated 24.7.2009 met on 28.4.2010 and considered the cases of (17) such prisoners and recommended for the premature release of (15) prisoners pursuant to various such directions. Insofar as the petitioners herein are concerned, it is stated that the Committee considered their cases and has not recommended. A perusal of the minutes of the meeting of the Committee dated 28.4.2010, indicates that no reasons have been assigned for not recommending the cases of the petitioners. 4. Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the petitioners submits that the Committee did not assign any reason about the entitlement of remission for the petitioners, as per the orders of the Government in G.O. Ms. No. 338 dated 24.7.2009 and that it is for the Government to take a decision as ordered by this Court about the entitlement of the petitioners for the special remission. 5. The Principal Secretary, Home Department, filed counter affidavit, stating that pursuant to the directions of this Court, the Director General and Inspector General of Prisons vide letter dated 01.02.2010, opined that the cases of the petitioners deserve consideration and they are not ineligible or disqualified for the grant of special remission under G.O. Ms. No. 338 dated 24.7.2009, but on review of the cases of the petitioners, it did not recommend for the grant of special remission. 6. The fact remains that the Government did not take any decision on such recommendation. We are of the prima facie opinion that the Committee constituted under G.O. Ms. No. 338 Home (Prisons-C) Department dated 24.7.2009, is bound by the guidelines issued in para Nos. (3) and (4) of the said G.O. and the orders passed by this Court, holding that the petitioners are entitled to the special remission in G.O. Ms. No. 338 dated 24.7.2009 more so, when the said orders have become final and the Government did not chose to challenge the same. In fact, the Director General and Inspector General of Prisons also opined that the petitioners are eligible and entitled to the special remission, as per GO Ms.No. 338 dated 24.7.2009. 7. The Government, in exercise of its powers under Article 161 of the Constitution of India read with Sec. 432 and 433-A of the Code of Criminal Procedure, issued aforesaid orders and, therefore, the Committee is bound to send the particulars of the convicts, who are entitled to the special remission under the said G.O. and it cannot sit over the conditions stipulated in para No. (3) and (4) of the said G.O and the orders passed by this Court. However, as the Government has not taken any decision, pursuant to the directions of this Court, we direct the Government to take a decision keeping in view the aforesaid facts and circumstances of the case and pass appropriate orders within a period of two weeks from today and report the same before this court on 18.11.2010”. In pursuance of the above order, the learned Assistant Government Pleader has submitted a copy of the Memo No.4374/Pri.C.A2/2009, dated 12.11.2010 and a copy of the letter dated 12.11.2010 addressed to the learned Advocate General. From a perusal of this Memo, it is apparent that the Government is mainly guided by the opinion of the Committee constituted under the Chairmanship of Principal Secretary to Government (Home), Government of Andhra Pradesh, Hyderabad, without independently applying its mind in right perspective. No doubt, the Director General and Inspector General of Prisons, vide letter dated 01.02.2010, opined that the cases of the petitioners deserve consideration and they are not ineligible or disqualified for the grant of special remission under G.O. Ms. No.338, dated 24.07.2009, and in spite of the fact that this Court, vide its order dated 16.12.2009 made in W.P. No.24436 of 2009 which has become final, and the aforesaid order dated 02.11.2010 passed in the present writ petition, held that the petitioners herein are eligible and qualified for grant of special remission under G.O. Ms. No.338 Home (Prisons-C) Department dated 24.07.2009, the Government, vide its Memo No.4374/Pri.C.A2/2009 dated 12.11.2010, erroneously rejected the case of the petitioners without assigning any reasons whatsoever as to the ineligibility or disqualification of the petitioners for being considered to the grant of special remission. Therefore, we are of the considered opinion that the Memo dated 12.11.2010 issued by the Government is unsustainable and the same is liable to be set aside. For the aforesaid reasons, we hold that the petitioners are in unlawful custody and they are entitled to be released forthwith as they are entitled to the grant of special remission as per G.O. Ms. No.338, dated 24.07.2009. Hence, the writ petition is allowed setting aside the orders issued by the Government in Memo No.4374/Pri.C.A2/2009, dated 12.11.2010. The respondents are hereby directed to release the writ petitioners forthwith if they are not required in any other case. No order as to costs. ________________ V.ESWARAIAH, J _________________ B.N.RAO NALLA, J 22nd November, 2010 Note: L.R. Copy to be marked B/o bcj