IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FIRST DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION NO : 22492 of 2009 Between: Bandari Chalam, S/o Bandari Venkataramudu, age 26 years, R/o A.Thimmapuram village, Appicherla post, Pedda Vaduguru Mandal, now residing at Borabanda, Hyderabad. ..... PETITIONER AND 1 The Government of Andhra Pradesh, represented by its Principal Secretary, Home (prisons) Department, Secretariat, Hyderabad and another. .....RESPONDENT THE HON'BLE MR JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION No.22492 of 2009 ORDER: This writ petition is filed seeking a Writ of Mandamus declaring the action of the 1st respondent in not releasing the petitioner’s maternal uncle i.e., K.Venkateswarlu, S/o Venkataramudu, Convict No.6772 lodged in Central Prison, Cherlapalli, Ranga Reddy District, 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 1st respondent to forthwith release the said convict. Brief facts of the case are that the maternal uncle of the petitioner is Accused No.1 in S.C.No.280 of 1988 on the file of the Court of the Sessions Judge, Anantapur and the trial Court by its judgment dated 20.01.1992 convicted and sentenced A-1 and others to undergo imprisonment for life for the offence under Section 302 read with Section 149 of I.P.C.; A-1 and others further convicted and sentenced to undergo rigorous imprisonment for one year for the offence under Section 148 of I.P.C. Aggrieved by the said conviction and sentence, the accused preferred Crl.A.No.72 of 1992 and this Court by its judgment dated 17.03.1993 dismissed the said appeal confirming the said conviction and sentence. The said judgment has become final. According to the petitioner, his maternal uncle i.e., Accused No.1 has undergone the actual sentence of 7 years and with all remissions, he has undergone the total sentence of 10 years. 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 maternal uncle of the petitioner herein, who is A-1, was also in the list of eligible candidates to be released in terms of the aforesaid G.O. However, he was not given the benefit and not released, on the ground that he 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 petitioner’s maternal uncle was not convict of murder of public servant on duty. A detailed counter-affidavit has been filed by the respondents. It is mainly contended that the life convicted prisoner herein is not entitled to the benefit of the said G.O.Ms.No.338 dated 24.07.2009 since he had committed the murder of a public servant on duty. Heard the learned Counsel for the petitioner and the learned Government Pleader for Home. 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 GO. 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)……………. 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. As per the charge sheet allegations, the deceased, Uggam Lakshmanna, was working as ward member of Thimmapuram village, Vajrakarur Mandal, and while he was proceeding to attend Shrimantham of his second daughter-in-law on 21.04.1988, the accused and others beat the deceased with sticks and sickles and caused injuries, as a result the deceased died. After trial the accused were convicted and sentenced as stated supra and the life-convicted prisoner herein has completed the actual sentence of 7 years and total sentence of 10 years including remission. If that alone is the criteria, automatically he is 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) o Para-4 of the said G.O. Now the question that falls for consideration is as to whether the deceased i.e., ward member of Thimmapuram village, Vajrakarur Mandal, do come within the ambit of public servant on duty or not? In my considered view the deceased cannot be termed as a public servant within the meaning of Section 21 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 are factions between the families of the accused and the deceased as they belong to different communities and the alleged incident took place at about 2.30 P.M. on 21.04.1988 when the deceased was going to attend Shrimantham of his second daughter-in-law 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. As stated supra, the members of Gram Panchayat etc., do not fall within the ambit of Public Servant. 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 holds that the deceased was not a public servant on duty, the convicted prisoner i.e., A-1 is entitled to the remission of sentence provided for under the said G.O. for the reason that he has completed 7 years of actual sentence and total sentence of 10 years including remission. For the aforesaid reasons, this Court is of the view that the convicted prisoner i.e., A-1 is entitled to the benefit provided for in the said G.O.Ms.No.338 dated 24.07.2009. In the result, the writ petition is allowed and the respondents are hereby directed to release the Convict No.6772 by name K.Venkateswarlu, lodged in Central Prison, Cherlapalli, Ranga Reddy District, if his presence is not required in connection with any other crime or case. There shall be no order as to costs. ______________________________ (GOPALA KRISHNA TAMADA, J) 21-12-2009 Note: Advance Order already sent. (Bo) Gsn.