THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION No.1496 of 2010 ORDER: 1 This Writ Petition is filed seeking a Writ of Mandamus declaring the action of the respondents in not releasing the Convicts viz., Seelam Pitchaiah, Gudupudi Veeraiah, Chanda Muthaiah, Nagati Muthaiah and Thota Ramanaiah vide Convict Nos.324, 1, 2, 325, 52 respectively, who are accused Nos.1, 3 to 6 in Sessions Case No.163 of 1999 on the file of the Additional Sessions Judge, Khammam and who are presently lodged in Sub Jail, Khammam pursuant to G.O.Ms.No.338 Home (Prisons. C) Department dated 24.07.2009, as illegal and arbitrary and consequently sought for a direction to the respondents to forthwith release the said convicts. 2 Brief facts of the case are that the Petitioner herein is the son of the youngest brother of convict No.325 / Accused No.5 and that all the convicts are accused in S.C. No.163 of 1999 on the file of the Additional Sessions Judge, Khammam for the offences punishable under Sections 148 and 302 read with Section 149 of IPC and the trial court by its judgment dated 21.02.2002 found all the above convicts along with one Nagati Raju guilty for the said offences and convicted and sentenced them to undergo life imprisonment for the offence punishable under Section 302 r/w 149 of IPC. Aggrieved by the said conviction and sentence, the convicts approached this court and filed Crl.A.No.329 of 2002. However, this court by judgment dated 15.03.2004 dismissed the said Criminal appeal, confirming the said conviction and sentence imposed by the trial court. The said judgment became final. 3 According to the petitioner, as on 15.08.2009, the Convict No.1 Gudupudi Veeraiah has undergone the actual sentence of 7 years 5 months and 13 days and with all remissions, he has undergone the total sentence of 11 years 2 months and 4 days; Convict No.2 Chanda Muthaiah has undergone the actual sentence of 7 years 2 months and 23 days and with all remissions, he has undergone the total sentence of 10 years 11 months and 13 days; Convict No. 52 Thota Ramanaiah has undergone the actual sentence of 7 years 3 months and 12 days and with all remissions, he has undergone the total sentence of 10 years 11 months and 20 days; Convict No.324 Seelam Pitchaiah has undergone the actual sentence of 7 years 4 months and 27 days and, with all remissions, he has undergone the total sentence of 11 years 6 months and 20 days and Convict No.325 Nagati Muthaiah has undergone the actual sentence of 7 years 4 months and 27 days and, with all remissions, he has undergone the total sentence of 11 years 2 months and 23 days. Thus they have fulfilled the conditions of undergoing actual sentence of 7 years and total sentence of 10 years including remission as on 15.08.2009. It is stated that the 1st respondent – Government of Andhra Pradesh issued an order vide G.O.Ms. No.338 Home (Prisons. C) Department dated 24.07.2009, for pre-mature release of certain categories of prisoners convicted for life imprisonment on the occasion of Independence Day, 2009, by granting remission of the un- expired residue of sentence as on 15.08.2009. It is pleaded that the convicts herein were also in the list of eligible candidates to be released in terms of the aforesaid G.O. But, however, they were not given the benefit and were not released on the ground that they would come under Clause IV of Para-4 of the said G.O.Ms.No.338, which postulates that “prisoners convicted of murder of public servants on duty” are not eligible for release. But, the said clause is not applicable as the convicts were not convicts of murder of public servant on duty. 4 The learned Assistant Government Pleader, on written submissions, submitted that the convict No.324 Seelam Pitchaiah is concerned, he violated the rules of parole as prescribed in para 4 (X) of the said G.O. by overstaying one day after availing parole and hence the prohibited condition of para 4(X) will attract to the said convict. 5 By G.O.Ms.No.338 Home (Prisons.C) Department dated 24.07.2009, the Government decided to grant remission of sentence to certain categories of convicts, on the occasion of Independence Day, 2009, who have been convicted for an offence or offences against laws relating to matters to which the executive power of the State extends and prescribed some guidelines for getting the benefit of the said G.O. 6 The relevant guidelines, for the purpose of deciding the present case, as mentioned in clause (d) of Para-3 and clause (iv) of Para-4 of the said G.O.Ms.No.338, reads as under: “3. The Government hereby issued the following guidelines giving one time exemption to the orders issued in G.O.Ms.No.17, dated 17-01-2003, to consider the cases of following categories of prisoners in the State, who have been convicted by Civil Courts of Criminal Jurisdiction. a)………….. b)………….. c)………….. d) All the convicted prisoners sentenced to imprisonment for life including those governed by Section 433-A, Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and who have undergone an actual sentence of 7 years and total sentence of 10 years including remission as on 15-08-2009 and; 4. The remission of sentence in para (3) above shall also apply to prisoners, who have been convicted by Courts situated within the State of Andhra Pradesh and are undergoing sentence in other States, but shall not apply to the following categories of prisoners, namely; i)…………. ii)…………. iii)………… iv) Prisoners convicted of murder of Public Servants on duty. v) to x)……………. 7 From the above guidelines, it is clear that a life convict should have completed an actual sentence of 7 years and total sentence of 10 years including remission. It is not in dispute that the life convicted prisoner herein had undergone an actual sentence of 7 years and total sentence of 10 years including remission. If the same is accepted, he is entitled to have special remission and consequent release. 8 As per the charge sheet allegations, the deceased Gurram Venkatramaiah was President of the Gram Panchayat Kaikondaigudem and that there was political rivalry between the convicts on one hand and the deceased on the other as the convicts were having suspicion that the deceased supported one Bhukya Vasram who killed a close relative of the convicts. In that process, the convicts, formed themselves into unlawful assembly along with others on 17.11.1998 at 6.00 AM with the common object of doing away with the life of the deceased and in furtherance of the common object, they killed the deceased when he went to the fields to attend calls of nature. 9 After trial the accused were convicted and sentenced as stated supra and the life-convicted prisoners herein have completed the actual sentence of 7 years and total sentence of 10 years including remission. If that alone is the criteria, automatically they are entitled to the benefits of the said G.O.Ms.No.338. But as stated supra, there are certain exceptions that were discussed under clause (iv) of Para-4 of the said G.O. 10 Now the question that falls for consideration is as to whether the deceased who was President of Gram Panchayat do come within the ambit of public servant on duty or not? 11 In my considered view the deceased cannot be termed as a public servant within the meaning of Section 21 of I.P.C. Further the exception provided for in the said G.O.Ms.No.338 is not killing or murdering a public servant. While the public servant is on duty and he was attacked while discharging his official duty and on account of the said attack, if he died, then only the guideline under clause (iv) of Para-4 of the said G.O comes into operation. In the instant case, even according to the charge sheet there was rivalry between the convicts and the deceased as the deceased supported one Bhukya Vasram who killed the close relative of the convicts, that incident took place when the deceased went to fields to attend calls of nature. 12 From the above legal position and in view of the facts of the present case, it cannot be said that the deceased was a public servant on duty. Hence, this Court has no hesitation to come to the conclusion that the deceased was not a public servant on duty at the time of his death. When once this Court held that the deceased was not a public servant on duty, the convicted prisoners are entitled to the remission of sentence provided for under the said G.O. for the reason that they have completed 7 years of actual sentence and total sentence of 10 years including remission. As on today, according to the learned Counsel for the petitioner, the convicted prisoners have completed the actual sentence of seven years and five months, seven years and two months, seven years three months, seven years four months and seven years and four months respectively and total sentence of eleven years and two months, ten years and eleven months, ten years and eleven months, eleven years and six months and eleven years and two months respectively including remission. 13 For the aforesaid reasons, this Court is of the view that the convicted prisoners are entitled to the benefit provided for in the said G.O.Ms.No.338 dated 24.07.2009. However, Convict No.324 by name Seelam Pitchaiah is concerned the learned Assistant Government Pleader strongly opposed for his release because he overstayed on parole. The same is not disputed by the learned counsel for the petitioner. 14 In the result, the Writ Petition is partly allowed and the Convict Nos.1, 2, 325 and 52, who are accused Nos.3 to 6 in S.C.No.163 of 1999 on the file of the Court of the I Additional Sessions Judge, Khammam and are languishing in Sub Jail, Khammam shall be released forthwith in terms of the G.O.Ms.No.338 dated 24.07.2009, if they are not required in any other crime. So far as Convict No.324 relating to the very same Sessions Case is concerned, as it is categorically stated and admitted that he has not completed the said actual sentence of seven years or ten years of total sentence including remission and as he overstayed on parole, he is not entitled to the benefit provided for under the said G.O. No costs. ________________________ GOPALA KRISHNA TAMADA, J 3rd February 2010 kvsn