* THE HONOURABLE SRI JUSTICE V. ESWARAIAH + WRIT PETITION No.11139 OF 2007 % MONDAY, THE THIRTIETH DAY OF JULY, TWO THOUSAND AND SEVEN # Kurra Gangi Reddy, S/o. Krishna Reddy, Convict No.5446, Central Prison, Cherlapalli, Ranga Reddy District. …PETITIONER Versus # The Inspector General of Police, Chenchalguda, Hyderabad and others. …RESPONDENTS ! Counsel for the petitioner : Mr. S.R.Sanku ^ Counsel for the respondents: Government Pleader for Home < Gist: > Head Note: ? Cases referred: 1994 Crl.L.J.533 THE HONOURABLE SRI JUSTICE V. ESWARAIAH WRIT PETITION No.11139 OF 2007 DATED: -07-2007 BETWEEN Kurra Gangi Reddy, S/o. Krishna Reddy, Convict No.5446, Central Prison, Cherlapalli, Ranga Reddy District. …PETITIONER AND The Inspector General of Police, Chenchalguda, Hyderabad and others. …RESPONDENTS ORDER: Petitioner questions the clarifications issued by the Inspector General of Prisons and Correctional Services vide proceedings in Lr.No.174/SA.2/2000 dated 30.03.2000 leading to cancellation of his Special Remission/State Remission as granted by order of the Government in G.O.Ms.No.3 Home (Prisoners.C) Department dated 17.01.1995 and G.O.Ms.No.192 Home (Prisoners.C) Department dated 11.08.1997 as illegal and contrary to G.O.Ms.No.3 dated 17.01.1995 and seeks a direction to the Inspector General of Prisons, Chanchalguda, Hyderabad to release him by virtue of special remission granted by the aforesaid G.O.Ms.No.3. 2. Petitioner submits that pursuant to the conviction orders by the Sessions Court, Kadapa in S.C.No.208 of 1985 dated 08.07.1986 sentencing him to life imprisonment, he has been undergoing life imprisonment in Central Prison, Cherlapally, Ranga Reddy District. He further submits that he was punished twice for overstaying parole. He further submits that by virtue of special remission granted by the State of Andhra Pradesh in G.O.Ms.No.3 dated 17.01.1995, he was awarded a special remission of 20 months and by virtue of G.O.Ms.No.192 dated 11.08.197 he was awarded remission of 20 months, thus the total special remission awarded to him is 40 months. He further submits that again on the occasion of 15.08.2007 the Government is going to release a special G.O. providing premature release of prisoners but his name has not been recommended due to the clarifications issued by the first respondent vide aforesaid letter dated 30.03.2000 and it was informed to him that special remission granted to him by virtue of G.O.Ms.No.3 was cancelled. 3. The petitioner further submits that the said clarifications are contrary to the said G.O. and the first respondent has no power to read something, which is not there in the G.O. and as per the provisions of the said G.O. and the subsequent G.O.Ms.No.71 dated 23.03.2000 special remission was granted. He further submits that there is no stipulation in G.O.Ms.No.3 about disentitlement of the prisoners who overstayed Parole/Furlough for a cumulative period in excess of 10 years, therefore, the said clarifications are contrary to the G.O. A number of persons, who overstayed Parole, were also released in 2000 vide G.O.Ms.No.18 dated 25.01.2000. Pursuant to the remission granted by virtue of the said G.O. one Mr. V. Veeraswamy, who overstayed Parole, was also released. Thus, he submits that the said clarifications issued by the first respondent are contrary to the Full Bench judgment of this Court in INDIAN ASSOCIATION OF LAWYERS v. PRINCIPAL SECRETARY, HOME DEPARTMENT, GOVERNMENT OF A.P.[1] 4. Counter has been filed by the third respondent stating that the petitioner – Convict Prisoner No.5446, Kokatam Gangi Reddy @ Kurra Gangi Reddy, R/o. Proddutur, was convicted and sentenced to life imprisonment under Section 302 of the Indian Penal Code, 1860 in S.C.No.208 of 1985 on the file of the I Additional Sessions Judge, Kadapa by judgment dated 08.07.1986 and was committed to the Central Prison, Hyderabad and later transferred to Central Prison, Cherlapally on 19.04.2005. 5. It is further stated that the petitioner overstayed Parole on two occasions: 1. One month parole was granted to him on 23.07.1990 as per the Government order in G.O.Rt.No.1999 dated 16.07.1990 and he was due to surrender on 23.08.1990 but he did not surrender for a period of 6½ years. He was apprehended by the police and admitted to the prison on 15.01.1997, thus, he overstayed Parole for 6 years 4 months 22 days for which the petitioner was punished with removal of his name from the remission rolls. 2. The petitioner was again released on one month Parole on 30.08.1997 as per the Government order in G.O.Rt.No.2210 dated 23.08.1997 and the period of Parole was extended from time to time up to 30.05.1998 and he was due to surrender on expiry of the extended period of Parole on 31.05.1998, but he did not surrender. Thereafter, he was apprehended by the police and admitted to the prison on 16.04.2005. Thus, he overstayed Parole for another period of 6 years 10 months 15 days. Accordingly, he was punished with head office memo No.SA.3/1061/05 dated 04.05.2005 denying him Parole/Furlough for a period of 4 years, to remove his name permanently from remission rolls, denial of interviews for three months and denial of canteen facilities for three months. Thus, it is stated that the petitioner unlawfully overstayed Parole for a period of 13 years, 3 months, 7 days, which amounts to absconding from state custody. On both the occasions he was apprehended by the police and brought back to the prison to undergo unexpired portion of sentence. 6. It is further stated that insofar as the benefit of G.O.Ms.No.3 dated 17.01.1995 is concerned, relating to premature release of prisoners, the petitioner was not confined in jail as on 17.01.1995 and he overstayed Parole and absconding from 23.07.1990 to 15.01.1997, therefore, remission was not awarded to him. Insofar as benefit of special remission as per G.O.Ms.No.192 dated 11.08.1997 is concerned, he was awarded 20 months special remission as stipulated in the G.O., but as per the clarifications issued vide proceedings dated 30.03.200 about the eligibility of grant of special remission to the prisoners pursuant to G.O.Ms.No.3 dated 17.01.1995 and G.O.Ms.No.192 dated 11.08.1997, the first respondent clarified stating that special remission is not available/admissible “to the prisoners convicted in criminal cases, who have come out of prison on valid leave of absence ( like Parole/Furlough etc.) but have violated the Parole/Furlough conditions by overstaying or committing other offences”. It is further stated that the petitioner overstayed Parole at the time of issuance of G.O.Ms.No.3 dated 17.01.1995, therefore, he was not awarded special remission in 1995 as the cases of prisoners, who overstayed Parole, are being treated as escape by lodging complaint in respective police stations under Section 224 IPC. The petitioner was not entitled for special remission in the year 1995 due to his overstay of Parole, and he was punished with removal of his name from remission rolls permanently. 7. It is further stated that the petitioner was granted special remission as per G.O.Ms.No.192 dated 11.08.197 for a period of 1 year 8 months and the total period of sentence undergone including remission was only 8 years 6 months and the unexpired portion of sentence is still 11 years 5 months 29 days as on 15.08.2007 and total period of overstay on Parole is 13 years 3 months 7 days. The petitioner would not complete 7 years of actual sentence or 10 years of total sentence including remission as on 15.08.2007 as stipulated in G.O.Ms.No.314 dated 16.12.2006 wherein the Government has decided to grant remission to certain categories of prisoners, who have undergone the actual sentence of 7 years including the period spent in open air jail, if any, and total sentence of 10 years including remission. 8. Insofar as the case of the convict/prisoner No.122 i.e. V. Veeraswamy, in concerned, he was sentenced to undergo life imprisonment, the sentence commenced from 25.06.1983 and he was released on Parole on 15.10.1984, which was extended for a period of 2 months and he was due to surrender on 16.01.1985, but he did not surrender and he was apprehended and admitted to prison on 30.06.1985. The overstay period was 8 months 15 days and he was again released on Parole for 2 months on 20.07.1990 and he was due to surrender on 21.09.1990, but he was apprehended on 17.04.1999, thus, he overstayed Parole for 8 years 8 months 27 days. Therefore, he was also awarded punishment of removal of his name from remission rolls permanently, apart from denying Parole/Furlough for four years, denial of canteen facilities and interviews for a period of six months; but he has undergone actual sentence for a period of 7 years 1 month as on 26.01.2000 and he was granted remission for 3 years 4 months and the total period of sentence undergone by him was 10 years 9 months, therefore, he was released from prison as per G.O.Rt.No.18 dated 25.01.2000 on the occasion of 50th anniversary of India becoming republic. It is stated that the convicted persons, namely, B. Rajaiah, M. Kotaiah, G. Venkata Krishna Reddy and S. Gopal filed W.P.No.5252 of 2005 through the People Union for Civil Liberties seeking their release on the ground that the remission available to them is not being credited and imposing punishment of removal of remission as illegal and contrary to G.O.Ms.No.190 dated 07.08.2004, but the said writ petition was dismissed on 15.06.2005. 9. Insofar as the special remission as per G.O.Ms.No.192 dated 11.08.1997 is concerned, it is not in dispute that the petitioner was granted remission of 1 year 8 months as he was in the prison as on the date of the said G.O. Therefore, the questions that arise for consideration are: 1. Whether the action of the respondents in not granting special remission as per G.O.Ms.No.3 dated 17.01.1995 is legal and valid? 2. Whether the circular instructions issued by the first respondent dated 30.03.2000 is illegal and contrary to G.O.Ms.No.3 dated 17.01.1995? 3. Whether the petitioner is entitled for grant of remission under G.O.Ms.No.3 dated 17.01.1995? 10. The first respondent by the circular instructions cannot clarify the executive order issued by the Government by way of G.O., but the said circular instructions have not taken away any benefit conferred on the convicted prisoners, pursuant to the aforesaid G.O. Any clarification or amendment of the order of the Government must be by another Government order under Article 161 of the Constitution of India but not by the said circular instructions as held by the Full Bench of this Court in Indian Association of Lawyers case (1 Supra). 11. The petitioner was committed to central prison pursuant to life imprisonment by judgment in S.C.No.208 of 1985 dated 08.07.1986 and he was released on Parole on 23.07.1990 and he was apprehended and admitted to prison on 15.01.1997. To get the benefit of G.O.Ms.No.3 dated 17.01.1995, under clause 2(a) a convicted prisoner should have completed total sentence of 10 years including 7 years of actual sentence as on 14.01.1995. Perusal of G.O.Ms.No.3 goes to show that the convicted prisoners sentenced to life imprisonment not governed by Section 433-A of the Code of Criminal Procedure, should have completed total sentence of 10 years including 7 years of actual sentence as on 14.01.1995. As admittedly the petitioner did not complete 7 years of actual sentence, as on 14.01.1995, the question of granting remission or giving the benefit of G.O. does not arise. The actual sentence undergone by the petitioner as on 15.08.2007 is only 6 years 10 months and the total period of sentence would be 8 years 4 months. 12. Petitioner questions clauses 3(b) and (c) of the circular instructions of the first respondent dated 30.03.2000, according to which special remission is not applicable to convicted prisoners, who have not undergone a portion of the sentence and have gone out of the prison after obtaining bail and have not been lodged in any prison as on the date of the orders of the Government and to those prisoners, who have come out of prison on valid leave like Parole/Furlough but have violated the Parole/Furlough conditions by overstaying are not entitled to remission. 13. Though I am of the opinion that the said circular instructions are not binding on this Court and cannot be looked into, but the petitioner is not entitled to remission of sentence, as his case fulfills the clauses specified in the said G.O. Therefore, the petitioner is not entitled for any special/State remission as per the order of the Government in G.O.Ms.No.3 dated 17.01.1995. To get the benefit of G.O.Ms.No.3, admittedly the petitioner has not undergone the total sentence of 10 years including 7 seven years of actual sentence as on 14.01.1995, therefore, he was rightly denied special remission. In fact, he was on Parole prior to the issuance of the G.O. from 23.07.1990, he was due to surrender on 23.08.1990, but he was not on parole as the date of issuance of the G.O. as he was absconding by overstaying Parole, not only prior to the issuance of the G.O.; as on the date of the G.O. and subsequently up to 15.01.1997. However, even assuming that the said circular is not applicable to the petitioner, he is not at all entitled to special remission, as admittedly he did not fulfill the requirement of clause 2(a) of the said G.O. by completing the total sentence of 10 years including 7 years of actual sentence as on 14.01.1995. Apart from that, in fact, the petitioner was awarded punishment of removal of his name from the remission rolls and he never questioned the same. As a matter of fact, the petitioner was given remission as per G.O.Ms.No.192, as he was in the prison as on the date of issuance of the G.O. on 11.08.1997, though he overstayed Parole for a period of 6 years 10 months 15 days, he was awarded 20 months of special remission as stipulated in the G.O. 14. It is also pertinent to note that the Division Bench of this Court in People’s Union for Civil Liberties v. The State of A.P., rep. by its Principal Secretary (W.P.No.5252 of 2005), wherein a similar relief was claimed for grant of remission pursuant to G.O.Ms.No.190 Home (Prisons-C) Department dated 07.08.2004 as per Para 2(a) of the said G.O. – “Convicted prisoners sentenced to imprisonment for life and governed by Sections 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 15.08.2004”; held that the prisoners therein have not fulfilled Para 2(a) of the G.O. and as they also overstayed Parole the remission was cancelled and they have not questioned the same. Since they were not falling with Para 2(a) of the G.O., their writ petition was dismissed holding that they had not served the sentence as stipulated in the said provision. In the instant case also the petitioner also did not serve the sentence as stipulated in Para 3(a) of G.O.Ms.No.3 dated 17.01.1995, therefore, I am of the opinion that the petitioner is not entitled for any remission. 15. For the aforesaid reasons, I am of the opinion that the action of the respondents in not granting special remission as per G.O.Ms.No.3 dated 17.01.1995 is not illegal or invalid. Though the circular instructions issued by the first respondent cannot be looked into or relied upon, the petitioner is not entitled to any remission. The writ petition is accordingly dismissed. There shall be no order as to costs. ______________ V. ESWARAIAH, J July , 2007 Note: LR Copy to be marked (B/o) DSK [1] 1994 Crl. L.J. 533