THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION No.651 of 2010 ORDER: 1 This Writ Petition is filed seeking a Writ of Mandamus declaring the action of the respondents in not releasing the father of the petitioner by name Settibalija Panduranga Rao, Convict No.3698 lodged in Prisoners Agricultural Colony (Open Air Jial), 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 respondents to forthwith release the said convict. 2 Brief facts of the case are that the father of the petitioner herein was the first accused in S.C.No.53 of 1997 on the file of the Court of the Principal Sessions Judge, Kurnool, for the offences punishable under Section 302 of IPC and U/s. 3 & 5of Explosives Substances Act, and the trial court by its judgment dated 20.01.1998 found the father of the petitioner herein guilty for the said offences and convicted and sentenced him to undergo life imprisonment and also to pay a fine of Rs.100/- for the offence punishable under section 302of IPC and further sentenced him to undergo rigorous imprisonment for a period of five years and also to pay a fine of Rs.5,000/- for the offence punishable under sections 3 and 5 of the Explosive Substances Act. Aggrieved by the said conviction and sentence, the convict i.e. the father of the petitioner herein approached this court and filed Crl.A.No.207 of 1998. However, this court dismissed the said Criminal appeal, confirming the said conviction and sentence imposed by the trial court. The said judgment became final. 3. According to the petitioner, as on 09.11.2009, the father of the petitioner has undergone the actual sentence of 11 years 09 months and 19 days and with all remissions, he has undergone the total sentence of 17 years 06 months and 20 days. Thus he has fulfilled the conditions of undergoing actual sentence of 7 years and total sentence of 10 years including remission as on 15.08.2009. 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 father of the petitioner herein was also in the list of eligible candidates to be released in terms of the aforesaid G.O. But, however, he was not given the benefit and was 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 petitioners’ father was not convict of murder of public servant on duty. 4 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 G.O. 5 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)……………. 6 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. 7 As per the charge sheet allegations, the deceased was working as Conductor in APSRTC and that as the deceased did not support the son of the convict in the panchayat elections, and as the son of the convict was defeated in the said elections, the convict bore grudge against the deceased and waiting for an opportunity to wreck vengeance against the deceased. In pursuance thereof, on 12.09.1995 at 3.00 PM the convict along with others attacked the deceased with bombs and sickles when he was returning from the fields as a result the deceased died. 8 After trial the accused was 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) of Para-4 of the said G.O. 9 Now the question that falls for consideration is as to whether the deceased who was working as Conductor in APSRTC do come within the ambit of public servant on duty or not? 10 In my considered view the deceased cannot be termed as a public servant within the meaning of Section 21 of 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 ill feelings between the convict and the deceased as the deceased did not support the son of the convict in the panchayat elections and that the incident took place when the deceased was returning from his fields. 11 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. 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 her death. When once this Court held that the deceased was not a public servant on duty, the convicted prisoner 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. As on today, according to the learned Counsel for the petitioner, the convicted prisoner has completed the actual sentence of 11 years 09 months and 19 days and total sentence of 17 years 08 month including remission. 12 For the aforesaid reasons, this Court is of the view that the convicted prisoner is entitled to the benefit provided for in the said G.O.Ms.No.338 dated 24.07.2009. 13 In the result, the Writ Petition is allowed and the Convict No.3698 by name Settibalija Panduranga Rao, who is accused in S.C.No.53 of 1997 on the file of the Court of the Principal Sessions Judge, Kurnool and is languishing in Open Air Jail at Charlapalli R.R. District shall be released forthwith in terms of the G.O.Ms.No.338 dated 24.07.2009, if he is not required in any other crime. ________________________ GOPALA KRISHNA TAMADA, J 3rd February 2010 kvsn