THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION Nos.22823, 23180 and 18532 of 2009 Date: 28.01.2010 W.P.No.22823 of 2009 : Between : Thakkidi Ram Reddy and others. … Petitioners and Government of Andhra Pradesh, Rep.by its Principal Secretary to Government, Home (Prisons) Department and others. … Respondents W.P.No.23180 of 2009 : Between : Pajjuri Anantha Reddy and others. … Petitioners and The Principal Secretary to Government, Home (Prisons-C) Department, Government of Andhra Pradesh, Hyderabad and another. … Respondents W.P.No.18532 of 2009 : Between : Daruri Babu … Petitioner and The Government of Andhra Pradesh, Rep.by its Principal Secretary, Home Department, Secretariat, Hyderabad and another. … Respondents THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION Nos.22823, 23180 and 18532 of 2009 ORAL COMMON ORDER: (per Hon’ble Sri Justice Nooty Ramamohana Rao) Heard Sri C.Padmanabha Reddy, learned senior Counsel, representing Sri C.Praveen Kumar, learned counsel appearing for the petitioners in W.P.Nos.22823 and 23180 of 2009, Sri K.Suresh Reddy, learned counsel appearing for the petitioner in W.P.No.18532 of 2009, as well as the learned Advocate General appearing for the respondents in all the above writ petitions. 2. The petitioners/prisoners in W.P.Nos.22823 and 18532 of 2009 are convicted for killing the Sarpanch of a Gram Panchayat and the petitioners in W.P.No.23180 of 2009 are convicted for killing the Upa-Sarpanch of a Gram Panchayat. 3. These three writ petitions can be dealt with and decided together as the issue involved is substantially the same. The question that has been raised in these writ petitions is whether the petitioners herein are covered by the sweep of the policy decision granting remission announced by the State Government through G.O.Ms.No.338, Home (Prisons-C) Department, dated 24.7.2009? For purpose of convenience, we are setting out herein the facts relating to the petitioners in W.P.No.22823 of 2009. 4. The petitioners are Accused Nos.2, 3, 4, 5 and 9, respectively, in S.C.No.552 of 1992 on the file of the I Additional Sessions Judge, Karimnagar. By judgment dated 22.9.1994, 11 of the 24 accused have been convicted for the offence committed by them under Section 302, read with Section 149 of Indian Penal Code, 1860 (for brevity “IPC”) and each of them were sentenced to undergo imprisonment for life. They were also convicted for the offences punishable under Sections 148, 447 and 457 IPC. All the convicted accused filed Crl.A.No.917 of 1994 and by the judgment dated 19.8.1995, this Court acquitted A-2 to A-11 of the charge under Section 302 read with Section 149 IPC. The conviction of A-1 alone for the offence under Section 302 IPC was upheld. The convictions for the minor offences were upheld and consequently the sentence of imprisonment was reduced to the period already undergone by them. Against the acquittal of A-2 to A-11 for the offence committed under Section 302 read with Section 149 IPC, the State carried the matter by preferring Crl.A.No.458 of 1996 to the Supreme Court. Similarly, A-1 also carried the matter in appeal against the conviction handed out to him by filing Crl.A.No.793 of 1998. By judgment, dated 11.8.1998, the Supreme Court dismissed the appeal preferred by A-1 and allowed the appeal preferred by the State, duly restoring the conviction and sentence recorded against A-2 to A-5 and A-9. Thus, the petitioners herein are the convicted prisoners and they have since surrendered before the Court. 5. The State Government has taken a policy decision and announced the same through their G.O.Ms.No.338, Home (Prisons-C) Department, dated 24.7.2009, according remission to various convicted prisoners and formulated necessary guidelines in that regard. In para-4 of the said G.O., certain exceptions have also been carved out rendering the prisoners covered by those exceptions as ineligible for receiving any such remission. Clause (iv) of para-4 of the aforementioned G.O., reads as under: “4. (i) to (iii) …………… (iv) Prisoners convicted of murder of Public Servants on duty. (v) to (x) …………….” 6. Therefore, the question that was required to be examined, in the instant case, was whether the petitioners herein can be said to be the convicted prisoners, who have committed the murder of a “public servant on duty” or not, so that their cases get attracted by clause (iv) in para-4 of the said G.O., rendering them ineligible for seeking remission in the duration of their period of sentence. If they have not committed the murder of any public servant on duty, it is not seriously doubted, that they are entitled to seek the remission in terms of the policy decision contained in G.O.Ms.No.338, Home (Prisons-C) Department, dated 24.7.2009. 7. The petitioners, as was already noticed, are all convicted prisoners for having committed the murder of a Sarpanch or a Upa- Sarpanch of a Gram Panchayat. Therefore, the first question that needs to be addressed by us was whether the Sarpanch or Upa- Sarpanch of a Gram Panchayat answers the description of a “public servant” for purposes of Section 21 IPC or not? 8. Sri C.Padmanabha Reddy, learned Senior Counsel, appearing for the petitioners has drawn our attention to the judgment rendered by the Supreme Court in STATE OF MAHARASHTRA v. LALJIT RAJSHI SHAH[1], wherein a somewhat similar question as to whether the Chairman of a Cooperative Society under Maharashtra Cooperative Societies Act can be held to be a public servant for the purpose of Section 21 IPC, has fallen for consideration. After having considered exhaustively the earlier judgments and the principles enunciated by the Supreme Court on the subject, it has been held as under: “It is undoubtedly true that the Co-operative Societies Act has been enacted by the State Legislature and their powers to make such legislation is derived from Entry 32 of List II of the Seventh Schedule to the Constitution. The legislature no doubt in Section 161 has referred to the provisions of Section 21 of the Indian Penal Code but such reference would not make the officers concerned 'public servants' within the ambit of Section 21. The State Legislature had the powers to amend Section 21 of the Indian Penal Code, the same being referable to a legislation under Entry 1 of List III of the Seventh Schedule, subject to Article 254 (2) of the Constitution as, otherwise, inclusion of the persons who are 'public servants' under Section 161 of the Co-operative Societies Act would be repugnant to the definition of 'public servant' under Section 21 of the Indian Penal Code. That not having been done, it is difficult to accept the contention of the learned Counsel, appearing for the State that by virtue of deeming definition in Section 161 of the Co-operative Societies Act by reference to Section 21 of the Indian Penal Code, the persons concerned could be prosecuted for the offences under the Indian Penal Code. The Indian Penal Code and the Maharashtra Co- operative Societies Act are not Statutes in pari materia. The Co-operative Societies Act is a completely self-contained Statute with its own provisions and has created specific offences quite different from the offences in the Indian Penal Code. Both Statutes have different objects and created offences with separate ingredients. They cannot thus be taken to be Statutes in pari materia, so as to form one system. This being the position, even though the Legislatures had incorporated the provisions of Section 21 of the Indian Penal Code into the Co-operative Societies Act, in order to define a 'public servant' but those 'public servants' cannot be prosecuted for having committed the offence under the Indian Penal Code. It is a well known principle of construction that in interpreting a provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created, or beyond the language of the Section by which it is created. A legal fiction in terms enacted for the purposes of one Act is normally restricted to that Act and cannot be extended to cover another Act.” (emphasis is brought out) 9. From the above ratio, it becomes very clear that the expression “public servant” is used by the Legislature for achieving certain objectives and purposes in the enactment in which the said expression is used in gesta position to the same expression found in Section 21 IPC. Further, the legal fiction created by a particular Statute cannot be stretched beyond the purpose for which the enactment itself has been made by the Legislature and cannot take into its sweep the expression of “public servant”, for the purpose of Section 21 IPC, so long as both the Statutes are not in pari materia. In the instant case, the A.P. Gram Panchayat Act is a separate legislation containing various offences and remedies therefor. Therefore, in LALJIT RAJSHI SHAH’s case (supra), the Supreme Court has clearly pointed out that the expression “public servant” found in various enactments, such as Cooperative Societies Act or Gram Panchayat Act, have got to be confined in their applicability only with regard to the offences contained and set out in those respective enactments and they cannot be stretched for the purpose of Section 21 IPC. 10. Applying the above ratio to the present fact situation, the deceased, in the instant case, may have been holding the office of the Sarpanch or Upa-Sarpanch of a Gram Panchayat when the offence was committed by the petitioners herein. Therefore, for the purpose of the offences set out in A.P. Gram Panchayat Act and for all other purposes for which the said enactment has recognized the Sarpanchas or Upa-Sarpanchas as public servants, alone they answer the description of a “public servant”, by virtue of the office of Sarpanch or Upa-Sarpanch held by them and they cannot answer the description of a “public servant” for the purpose of Section 21 IPC. 11. In this context, it is also appropriate to notice how the Indian Penal Code dealt with the definition of “public servant” in Section 21 and it reads as under: “The words "public servant" denote a person falling under any of the descriptions hereinafter following; namely:- 1 [***] Second.-- Every Commissioned Officer in the Military, 2 [Naval or Air] Forces 3 [4 [***] of India]; 5 [Third.--Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;] Fourth.-- Every officer of a Court of Justice 6 [(including a liquidator, receiver or commissioner)] whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties; Fifth.-- Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant; Sixth.-- Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority; Seventh.-- Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement; Eighth.-- Every officer of 7 [the Government] whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience; Ninth.-- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of 7 [the Government], or to make any survey, assessment or contract on behalf of 7 [the Government], or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of 7 [the Government], or to make, authenticate or keep any document relating to the pecuniary interests of 7 [the Government], or to prevent the infraction of any law for the protection of the pecuniary interests of 7 [the Government] 8 [***]; Tenth.-- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district; 9 [Eleventh.--Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;] 5 [Twelfth.--Every person-- (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956).] "Thirteenth.--Every person employed or engaged by any public body in the conduct and supervision of any examination recognised or approved under any law. Explanation.--The expression 'Public Body' includes-- (a) a University, Board of Education or other body, either established by or under a Central or State Act or under the provisions of the Constitution of India or constituted by the Government; and (b) a local authority." 12. The offences for which the petitioners herein have been handed out conviction are Section 302 read with Section 149 IPC. Therefore, their cases have got to be examined as to whether the offence committed by them was one against a public servant from the stand point of view of Section 21 IPC or not? 13. When we examine the provisions contained in Section 21 IPC, it is not at all difficult for us to come to the conclusion that the Sarpanch or Upa-Sarpanch of a Gram Panchayat does not fall in any of the categories of public servants contained in Section 21 IPC. Hence, the offences committed by the petitioners herein cannot be said to be offences committed against any such public servant, to disentitle them to seek the benefit of remission by virtue of the policy decision announced by the State Government in G.O.Ms.No.338, Home (Prisons-C) Department, dated 24.7.2009. It is also appropriate to notice that the decision of the State Government to grant remission is in accordance with Section 432 read with Section 433A of the Code of Criminal Procedure, 1973. Therefore, we are of the opinion that the petitioners herein are not covered by the sweep of clause (iv) in para-4 of the policy decision announced by the State Government in G.O.Ms.No.338, Home (Prisons-C) Department, dated 24.7.2009, and they are entitled to have their cases considered by the State Government for the purpose of according them necessary remission in terms of the said policy decision. 14. The other contention raised by Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the petitioners was that the deceased-Sarpanch was not actually on duty when he was done to death. In other words, it was his contention that the expression employed in this Section “on duty” should be read and understood as a public servant, who was actually performing the duty. It is his further contention that at the time of his death, since the deceased-Sarpanch was not performing any public duty, the same shall not be treated as killing up of a public servant “on duty”. 15. In this context, since we have already expressed our view as regards the first part of the expression “public servant” as contained in G.O.Ms.No.338, Home (Prisons-C) Department, dated 24.7.2009, and eventually held that a Sarpanch or a Upa-Sarpanch cannot be held to be a public servant, virtually the examination of the second part regarding whether the deceased-Sarpanch was actually ‘on duty’ or not, is rather superfluous. Therefore, we are not expressing any view on that aspect. 16. We, therefore, allow these writ petitions and direct the respondents to take up immediately the case of each of the petitioners/prisoners for consideration of their cases for grant of necessary remission in terms of G.O.Ms.No.338, Home (Prisons-C) Department, dated 24.7.2009, and pass appropriate orders within a period of two weeks from the date of receipt of a copy of this order. 17. Registry is directed to furnish a copy of this order, latest by 1.2.2010. _________________________ JUSTICE D.S.R. VARMA _____________________________________ JUSTICE NOOTY RAMAMOHANA RAO 28.01.2010. Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION Nos.22823, 23180 and 18532 of 2009 (Common order) 28.01.2010 (Msr) [1] AIR 2000 SC 937