THE HON'BLE MR JUSTICE V.ESWARAIAH THE HON’BLE MR JUSTICE G KRISHNA MOHAN REDDY Writ Petition No.20004 OF 2011 DT. 5.9.2011 Between: P.Venkata Bala Ganesh … Petitioner And The Government of A.P. and others … Respondents Counsel for the Petitioner: Sri Balla Ravindranath Counsel for respondent: The Court made the following ORDER: THE HON'BLE MR JUSTICE V.ESWARAIAH THE HON’BLE MR JUSTICE G KRISHNA MOHAN REDDY Writ Petition No.20004 OF 2011 ORDER: (Per Sri Justice V Eswaraiah) This writ petition is filed for issuance of writ of Habeous Corpus directing the respondents to release the petitioner Mr. P Venkata Bala Ganesh who is undergoing the imprisonment at Central Prison, Cherlapalli. The petitioner is accused in S.C. No. 315 of 1997 on the file of the Metropolitan Sessions Judge, Hyderabad for committing murder of Sri Magunta Subbarami Reddy, Member of Parliament and his Gunman Mr.Ch.Venkata Ratnam, who are public servants and by judgment dated 4.8.2004, he was convicted under Section 302 of IPC and sentenced to suffer imprisonment for life and also sentenced on other terms, which sentences were directed to run concurrently. 2. The Government of A.P, have issued certain guidelines vide G.O.Ms.No. 190 Home (Prison-C) Department dated 7.8.2004 for grant of special remission to prisoners on the occasion of Independence Day, 2004. The relevant portion reads as under; a) Convicted prisoners sentenced to imprisonment for life and 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 as on 15.8.2004, and b) Convicted prisoners sentenced to imprisonment for life and governed by section 433-A Code of Criminal Procedure, 1973 (Central Act 2 of 1974 ) aged more than 65 years and have undergone an actual sentence of 5 years and total sentence of 7 years as on 15.08.2004. …..……… but shall not apply to the following categories of prisoners namely; i) Prisoners convicted and sentenced by Courts situated outside the State of Andhra Pradesh. ii) Prisoners convicted of offences against laws relating to matter to which the executive powers of the Union extends, iii) Prisoners involved in and convicted for offences related to Communal incidents. iv) Prisoners convicted under the Essential Commodities Act. v) Prisoners convicted under the Protection of Civil Rights Act, 1955. vi) Prisoners convicted under the A.P. SCs and STs (Prevention of Atrocities) Act, 1993 and vii) Prisoners sentenced to death sentence which is later commuted to life sentence. 3. The petitioner alleges that though he had completed the actual sentence of 8 years 8 months and 19 days as on 15.8.2004 (including the remand period of 4 years 8 months and 8 days), his case was not considered for grant of special remission on the ground that he has not completed the total sentence of ten years as required under the Government Order and has completed a total sentence of only 9 years 10 months and 6 days as on 15.8.2004. 4. Again, in the year 2010, the Government have issued similar orders granting special remission to life-convicted prisoners on the occasion of Republic Day 2011, vide G.O. Ms.No. 283 Home (Prisons-C) Department dated 30.10.2010. The relevant portion reads as under; 3. The Government hereby issue the following guidelines giving one time exemption to the orders issued in the reference first read above, to consider the cases of following categories of prisoners in the State, who have been convicted by Civil Courts of criminal jurisdiction: (a) All convicted women prisoners sentenced to imprisonment for life who have undergone an actual sentence of 5 years and total sentence of 7 years including remission as on 31-12-2010; (b) All decrepit prisoners as defined in Rule 321 (h) of Andhra Pradesh Prison Rules, 1979, read with G.O. Ms. No. 44, Home (Prisons.B2) Department, dated 16-03- 2007; (c) All the convicted prisoners sentenced to imprisonment for life including those governed by Section 433-A, the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) aged more than 65 years and have undergone an actual sentence of 5 years and total sentence of 7 years including remission as on 31-12- 2010; and (d) All the convicted prisoners sentenced to imprisonment for life including those governed by Section 433-A, the 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 31-12-2010. 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) Prisoners convicted and sentenced by Courts situated outside the State of Andhra Pradesh; (ii) Prisoners convicted of offences against laws relating to a matter to which the executive powers of the Union extends; (iii) Prisoners involved in and convicted for offences related to communal incidents; (iv) Prisoners convicted of murder of Public Servants on duty; (v) Prisoners convicted under the Essential Commodities Act, 1955; (vi) Prisoners convicted under the Protection of Civil Rights Act,1955; (vii) Prisoners convicted under the Andhra Pradesh Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; (viii) Prisoners convicted for crimes against Women under Sections 354, 376 and 498 A of Indian Penal Code, 1860 while being sentenced to imprisonment for life; (ix) Prisoners sentenced to death sentence, which is later commuted to life sentence; (x) Life convicted prisoners who have availed either parole/furlough during the preceding two years and not surrendered in time. 5. The petitioner alleges that though he has undergone 10 years of sentence including remissions, he was not given the benefit of aforesaid Government Orders on the ground that clause 4 (iv) of the Government Order prescribes that special remission shall not apply to the prisoners convicted of murder of public servants on duty and that he was involved in a murder case of public servants on duty i.e., Sri Magunta Subbarami Reddy, Member of Parliament and his gunman, a police constable and is not entitled claim the special remission. 6. It is the case of the petitioner that he maintained good conduct during the period of sentence and due to the injuries he sustained at the time of arrest, he has been suffering from serious health problems including suffering from Urethral Stricture since 1998 and is undergoing surgery for Urethral Dilatation once in four months at Osmania General Hospital or Gandhi Hospital, Secunderabad. That he has undergone major abdominal surgery in the year 1995 and presently suffering from chronic sciatica and frequent attacks of migraine and other psychological problems due to prolonged incarceration. He further states that he was released on escort parole earlier that he had reported immediately after the period of parole to the satisfaction of the Jail Authorities, that he has also earned good reputation before the Jail Authorities, that he has distanced himself from the Movoist Party, that has nothing to do with their practices and philosophy and that he has assured the Government that he will lead normal life after his release. 7. Sri C.Padmanabha Reddy, learned senior counsel appearing for the petitioner submits that in terms of clause 4 (iv) of the aforesaid Government Orders, the prisoners convicted of murder of public servants on duty are not eligible for grant of special remission and there is no rationale behind imposing such a condition and the said condition is discriminatory, inasmuch as the penal laws do not make any distinction between a murder of a public servant and an ordinary citizen and accused being prosecuted under Section 302 of IPC alone. He further submits that in the earlier Government Orders issued for grant of remission, there was no bar for grant of special remission to the prisoners convicted of murder of public servants on duty. In support of his contentions, he has placed reliance on the judgment of the Supreme Court in State of Haryana Vs. Jagdish[1] wherein it is held that the prisoner has to be considered on the strength of the policy that was existing as on the date of his conviction. That the State authority is under an obligation to at-least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for premature release would be considered after serving the sentence, prescribed in the short sentencing policy existing on that date. 8. A counter affidavit is filed by the third respondent /Superintendent, Central Prison, Cherlapally, Ranga Reddy district, stating that for the grant of special remissions to the life convicted prisoners on the occasion of the Republic Day, 2011, guidelines were issued vide G.O.Ms.No.283 dated 30.10.2010 and in view of the rider contained in clause no. 4 (iv) the petitioner being involved in the murder of public servants on duty is not entitled to grant of special remission, therefore his case was not considered for remission of sentence. That as per section 432 of Cr.P.C. the Government is empowered to suspend, remit the whole or any part of the sentence of any prisoner upon any conditions and as per Section 432 (3) the Government can cancel the suspension or remission of sentence already granted to the prisoners who have not fulfilled the conditions and that no prisoner has any right to demand for the grant of remission/release on mercy grounds. That the petitioner is not entitled to special remission as a matter of right. It is also stated that he is not entitled to claim special remission on the ground of ill health or on the basis of assurance if any given by him as regards his good conduct after release and the same cannot form any basis for his release and unless he fulfills the criteria laid down in G O Ms.No. 283 dated 30.10.2010, he cannot claim any special remission. 9. Section 432 of Criminal Procedure Code confers both upon the Central Government and the State Governments, a power to suspend the execution of sentence or remit the whole or any part of the punishment to which a person has been sentenced. This power can be exercised with or without any conditions. Section 433 of Cr.P.C. confers upon the appropriate Government i.e., both the Central Government as well as the State Governments, the power to commute sentence including the sentence of death. Section 433-A which has been inserted by Act. 45 of 1978 and commenced w.e.f. 18.12.1978, places a restriction on powers conferred by Sections 432 and 433 of Cr.P.C. where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he has served at least fourteen years of imprisonment. Thus, there is a restriction of exercising the powers under Section 432 and 433 of Cr.P.C., for the appropriate Government for grant of remission or suspension of sentence in respect of the person who was sentenced for death and where the death sentence has been commuted into that of imprisonment for life. 10. Admittedly, the Government in exercise of powers conferred under Section 432 of Cr.P.C., issued guidelines for grant of special remission vide G.O.Ms.No.283 dated 30.10.2010 subject to conditions specified therein. The learned counsel for the petitioner submits that clause 4 (iv) of the aforesaid Government Order, disentitling the prisoners convicted of murder of public servants on duty, is discriminatory and violative of Article 14 of the Constitution of India and relied upon a judgment of the Division Bench of this Court in J.Jagaram and others Vs. The State of A.P. and others[2]. In the said case, the Government issued G.O.Ms.No. 580 Home (Prisons-C) Department, dated 20.10.1984 granting remission excluding certain classes of prisoners including prisoners convicted for offences under Sections 120-B, 121 to 130, 359 to 377 and 395 to 402 of Indian Penal Code and the petitioner therein filed writ petition challenging the said condition 3 (3) of the said Government Order on the ground that grant of remission was considered for the prisoners who were convicted under Section 302 and sentenced to life imprisonment and the same benefit was denied to the convicts who were sentenced for lesser serious crimes. Under those circumstances, the Division Bench of this Court held that the said clause 3 (3) therein is void being violative of Article 14 of the Constitution of India. 11. Insofar as the case of State of Haryana (cited supra) is concerned, wherein the Supreme Court held that the remission of punishment for commutation of sentence of any person convicted while exercising powers under Article 161 by the Governor of the State, prevails over the power exercised under Section 432 and 433 of the Criminal Procedure Code. The power under Article 161 cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or the Prison Rules. It is further held that the special remission to the life convicts in exercise of power under Section 432 read with Section 433 and 433-A of the Cr.P.C., in the year 2008 is therefore under a rule of procedure, which is subordinate to the Constitution. The power exercised under Article 161 of the Constitution is obviously a mandate of the Constitution and therefore, the policy of the year 2008 cannot over-ride the policy of 1993. Therefore, the policy decision taken in exercise of the powers of the Government under Section 432 and 433 cannot over-ride the policy decision taken in exercise of the powers exercised under Article 161 of the Constitution. For the sake of convenience, the relevant paras are extracted hereunder; “52.. We have already noticed that the earlier policies including the policy dated 04.02.1993 refers to the exercise of powers under Article 161 of the Constitution whereas the policy dated 13.08.2008 is in exercise of the powers under Section 432 read with Sections 433 and 433-A of Cr. P.C. The restriction under Section 433-A is only to the extent of the powers to be exercised in respect of offences as referred to under Section 432 Cr.P.C. The notification dated 13.08.2008 is, therefore, under a rule of procedure, which is subordinate to the Constitution. The power exercised under Article 161 of the Constitution is obviously a mandate of the Constitution and, therefore, the policy dated 13.08.2008 cannot override the policy dated 04.02.1993. 53.. The right of the respondent prisoner, therefore, to get his case considered at par with such of his inmates, who were entitled to the benefit of the said policy, cannot be taken away by the policy dated 13.08.2008. This is evident from a bare perusal of the recitals contained in the policies prior to the year 2008, which are referable to Article 161 of the Constitution. The High Court, therefore, in our opinion, was absolutely justified in arriving at the conclusion that the case of the respondent was to be considered on the strength of the policy that was existing on the date of his conviction. 54.. The State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for pre- mature release would be considered after serving the sentence, prescribed in the short sentencing policy existing on that date. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. In case a liberal policy prevails on the date of consideration of the case of a "lifer" for pre-mature release, he should be given benefit thereof.” 12. Further in Epuru Sudhakar Vs.Government of A.P.[3] case, the Supreme Court held that the orders issued under Article 72 / 161 of the Constitution of India could be challenged on the following grounds; (a) that the order has been passed without application of mind, (b) that the order is mala fide (c) that the order has been passed on extraneous or wholly irrelevant considerations; (d) that relevant materials have been kept out of consideration; (e) that the order suffers from arbitrariness. 13. On perusal of the decisions relied upon by the learned counsel for petitioner, we are of the opinion that the decisions of this Court, as well the Supreme Court have no application to the facts of the case. 14. The impugned guidelines in G.O.ms.No. 283 dated 30.10.2010 were not issued under Article 161 of the Constitution of India but the same were issued in exercise of the statutory powers conferred under Section 432 of Criminal Procedure Code. Admittedly, the petitioner is not questioning the constitutional validity of Section 432, 433 and 433-A of the Criminal Procedure Code. The Government is empowered to impose any condition while issuing the guidelines with regards to grant of special remission to the life convicts as provided under Section 433 of Cr.P.C. itself. The Government have got power to impose conditions, restrictions etc while granting remission and in fact, the Government have got power to cancel the order of remission for non fulfillment of any of the conditions of the said order. 15. The petitioner is not challenging the constitutional validity of any of the provisions relating to grant of special remission in exercise of the powers conferred under the Code of Criminal Procedure but only submits that clause 4 (iv) of the impugned Government Order is discriminatory in not extending the benefits to the prisoners convicted of murder of public servants on duty, who were prosecuted under the same provisions of law as that of prisoners convicted of murder of other citizens, so the petitioner contends that there is no difference in between the prisoners convicted for murder of public servants with that of prisoners convicted of murder of other citizens. 16. A perusal of the orders issued vide G.O. Ms.No. 190 dated 7.8.2004 would indicate that by the said orders, convicted prisoners sentenced to imprisonment for life and 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 as on 15.8.2004, and convicted prisoners sentenced to imprisonment for life and governed by section 433-A Code of Criminal Procedure, 1973 (Central Act 2 of 1974 ) aged more than 65 years and have undergone an actual sentence of 5 years and total sentence of 7 years as on 15.08.2004 were granted special remission with one time exemption to the earlier orders issued in G.O.Ms No. 17 dated 17.1.2003 and subject to seven exceptions, which were extracted above. Now coming to the present Government Orders in G.O.Ms.No. 283 dated 30.10.2010 it is seen that special concision was given to the women below the age of 65 years under Clause 3-A entitling for remission of sentence in respect of life convicts if they have undergone an actual sentence of 5 years and total sentence of 7 years. However, merely because the women were granted special concession, it cannot be said that men are also entitled for similar remission under similar circumstances. Further, it is also to be noted that apart from the prisoners convicted of murder of public servants on duty, certain other categories of prisoners were also excluded from grant of special remission viz., prisoners convicted for the offences related to communal incidents; Essential Commodities Act, 1955, Protection of Civil Rights Act, 1955 SCs and STs (Prevention of Atrocities) Act, 1989 etc. 17. Though the persons convicted for murder of any other citizen and the public servant on duty are being prosecuted under Section 302 of IPC alone and there is no distinction of the punishment of murder of any other citizen and that of murder of a public servant, it cannot be said that there is discrimination in imposing a bar by the Government excluding the prisoners convicted of murder of public servants on duty. The Government have got ample power to impose any condition while exercising its statutory powers under Section 432 of Criminal Procedure Code. Therefore, it cannot be said that Clause 4 (iv) of the impugned Government order is discriminatory warranting interference of this Court. Accordingly, the writ petition fails and the same deserves to be dismissed. 18. However, having regard to the letter of the Superintendent of Jails, Central Prison, Cherlapalli in Letter No. CPCH/RC-1/7568 /2011 dated 30.4.2011 wherein it is stated that the petitioner is suffering from serious ailments viz., Urethral Stricture since 1998, undergone surgery for Urethral Stricture and presently undergoing regular Urethral dilatation once in four months and also suffering from Seiatica and frequent attack of Mygraine and other Psychological problems due to prolonged incarceration; that A.P. Human Rights Commission after calling for a report of the petitioner, felt that there is need to consider the grant of remission to the petitioner and directed to consider the mercy petition of the petitioner; that the Director General of Police Intelligence, A.P. vide his letter dated 29.9.2010 has recommended to consider the release of the petitioner on the eve of 2.10.2010 as he has completed 14 years of imprisonment and that the petitioner has completed 18 years four months and 15 days of sentence including remission and as on date, the petitioner is nearing completion of 15 years of imprisonment out of the total 19 years, the petitioner is at liberty to make an application before the Government for grant of remission of punishment or to commute the sentence so as to enable the Government to consider his case under Article 161 of the Constitution of India. 19. Subject to above observation, the writ petition is dismissed. No costs. _____________ V ESWARAIAH,J ________________________ G KRISHNA MONAH REDDY,J DATE: 5.9.2011 TVK THE HON'BLE MR JUSTICE V.ESWARAIAH THE HON’BLE MR JUSTICE G KRISHNA MOHAN REDDY Writ Petition No.20004 OF 2011 DT. 5.9..2011 [1] 2010 (4) SCC 216 [2] The Madras Law Journal Reports 1985 page 642. [3] 2006 (8) SCC 161