THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Writ Petition No.21272 of 2009 Date: 26-10-2009 Between Bhuma Hari Prasada Reddy … Petitioner and 1. The Government of A.P., rep. by its Principal Secretary, Home (Prisons-C) Dept., Secretariat Buildings, Hyderabad and 3 others … Respondents THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Writ Petition No.21272 of 2009 Oral Order: (per D.S.R.Varma, J.) Heard Sri T.Niranjan Reddy, learned Counsel appearing for the petitioner and the learned Assistant Government Pleader, representing the learned Advocate General, appearing for the respondents. 2. The relief sought in this writ petition is -- to issue a Writ of habeas corpus directing the respondents herein to produce the bodies of P.Dana Rao (CT No.8200), A.Venkateswarlu (CT No.8211) and A.Chinnappa Reddy (CT No.8215), who are now detained in Central Prison, Rajahmundry and B.Singa Reddy (CT No.581), B.Peddi Reddy (CT No.763), Y.Peddi Reddy (CT No.762), B.Subba Reddy (CT No.579) and M.Israil (CT No.764), who are detained in Central Prison, Nellore and set them at liberty forthwith and pass such other or further orders as this Hon’ble Court may deem fit and proper in the circumstances of the case. 3. The petitioner is related to the above life convicted prisoners, who have been undergoing imprisonment for life for the offence under Section 302 of IPC pursuant to the finding recorded by the Additional Sessions Judge, Ongole, Prakasam district in Sessions Case No.172 of 1997, by judgment dated 06-11-1999, as confirmed by a Division Bench of this Court in Criminal Appeal Nos.1919 of 1999 and 145 of 2000, by common judgment dated 25-9-2001. 4. The learned Counsel for the petitioner contends that the Government of Andhra Pradesh, in exercise of the powers vested under Section 432 of the Code of Criminal Procedure, 1973 had issued G.O.Ms.No.338 HOME (PRISONS.C) DEPARTMENT, dated 24-7-2009, prescribing certain guidelines in order to give remission of sentence to certain categories of prisoners. 5. The conditions for remission of sentence, for ready reference, have been extracted as under: “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; vi) Prisoners convicted under the Protection of Civil Rights Act, 1955; vii) Prisoners convicted under the Andhra Pradesh Scheduled Castes and Scheduled Tribes 9Prevention of Atrocities) Act, 1989; viii) Prisoners convicted for crimes against Women under Section 354, 376 and 498-A, IPC 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.” 6. It is the contention of the learned Counsel for the petitioner that the cases of the above life convicted prisoners have not been considered for the purpose of extending the benefit under the G.O.338 since they were involved in an offence of committing the murder of a Public Servant while in office. A finding was recorded by the trial Court that the above life convicted prisoners were liable for the offence under Section 302 of IPC and accordingly they were convicted and sentenced to imprisonment for life. 7. On appeal, a Division Bench of this Court has observed that the deceased was a Public Servant as on the date of his death in the capacity of a Sarpanch and eventually, the finding of conviction as recorded by the trial Court has been confirmed. The same facts have been brought to the notice of this Court in the counter-affidavit filed by the respondents. 8. Now, because of the said observation made by a Division Bench of this Court while disposing of the appeals confirming the judgment and sentence recorded by the trial Court that the above life convicted prisoners were responsible for the death of a Public Servant while he was in office, the Government of Andhra Pradesh did not consider their cases on account of they fall under category (iv) of para 4 of the G.O.338. In fact, if that be the case, the above life convicted prisoners cannot have the benefit of the guidelines mentioned in the said G.O., for the purpose of remission of sentence. 9. But, subsequently it had been brought to the notice of the Division Bench of this Court which disposed of the appeals 1919 of 1999 and 145 of 2000, which were filed challenging the judgment of the trial Court, that there was no finding recorded by the trial Court that Bandi Subba Reddy @ Chinna Subba Reddy, deceased No.2 (D2), was a Sarpanch as on the date of his death. It appears that, D2 was not a Sarpanch at all and on the other hand, he was only an unsuccessful contestant to the post of Sarpanch. In other words, he was not holding a public office as an elected Sarpanch as on the date of his death. Therefore, basing on the said information furnished to this Court, category (iv) mentioned in para 4 of the G.O.338, cannot disentitle the above life convicted prisoners from having the advantage of the remission of sentence under the said G.O. 10. Even from the counter-affidavit filed on behalf of respondent No.1, we find that this was the position and there is no controversy on these aspects. In such a case, we cannot but hold that the above life convicted prisoners cannot be denied the benefit of the remission of sentence, as provided under the G.O.338 on account of the mistaken identity of a fact, as was already pointed out. 11. So far as the life convicted prisoner, by name B.Subba Reddy (CT No.579), who is presently lodged at Central Prison, Nellore, is concerned, it could be seen from the averments made in the counter-affidavit that he was once released on parole and overstayed for a day. Irrespective of the short period of overstay, the act of overstaying by itself cannot be accepted, particularly for the purpose of availing the benefit of remission of sentence under the G.O.338. The same has been explicitly made clear in category (x) of para 4 of the said G.O. 12. Therefore, though in all other respects, the life convicted prisoner, by name B.Subba Reddy (CT No.579), is on par with the other life convicted prisoners, whose cases also have not been considered for the purpose of remission of sentence, he cannot be considered on this ground alone. 13. In the result, the cases of other life convicted prisoners viz., P.Dana Rao (CT No.8200), A.Venkateswarlu (CT No.8211) and A.Chinnappa Reddy (CT No.8215), who are now detained in Central Prison, Rajahmundry; and B.Singa Reddy (CT No.581), B.Peddi Reddy (CT No.763), Y.Peddi Reddy (CT No.762) and M.Israil (CT No.764), who are now detained in Central Prison, Nellore shall have to be considered forthwith, because obviously their cases have been discriminated on the mistaken identity of a fact, as was already noticed and the life convicted prisoner, by name B.Subba Reddy (CT No.579), who is now detained in Central Prison, Nellore, cannot be considered since his case falls under category (x) of para 4 of the G.O.338. 14. The writ petition is allowed in part, to the extent indicated above, at the stage of admission. ____________________ JUSTICE D.S.R.VARMA ____________________ JUSTICE R.KANTHA RAO 26th October, 2009. Note:- Issue C.C. by 28-10-2009. (B/o) Ak