HON’BLE MR.JUSTICE R. SUBHASH REDDY Writ Petition No.6977 of 2011 Date: March 29, 2011 Between: Gunnam Pentaiah @ Pentadu, (A-1), S/o. late Ramulu, aged 45 years, Convict No.2715, Central Jail, Visakhapatnam and Six others … Petitioners And The State of A.P., represented by its Principal Secretary, Home Dept., Secretariat Buildings, Hyderabad, and Two others … Respondents Order: Petitioners herein, who are accused and convicted in a criminal case and presently lodged in Central Jail, Visakhapatnam, filed this writ petition seeking to direct the respondents to set them at liberty. All the petitioners herein were sentenced to life imprisonment by the learned Sessions Judge, Vizianagaram on 24-03-2003 in Sessions Case No.154 of 2001 and they were admitted into Central Jail, Visakhapatnam on 26-03-2003. They were convicted for the offences under Sections 302, 148, 452, 325 and 323 of Indian Penal Code and all the sentences were ordered to be run concurrently. They questioned the conviction before this Court in Criminal Appeal No.382 of 2003. This Court, by judgment dated 11-08-2005, set-aside the sentence imposed by the Sessions Court under Sections 148, 323, 325 and 452 IPC and confirmed the conviction and life sentence recorded under Section 302 for killing Sri P.Appalanaidu (D-2) and also Sri I.Appalaswamy (D-1). Sri P.Appalanaidu, D-2, was the Sarpanch of Ramannapeta village, Vizianagaram District and the same was mentioned in the judgment of this court in the aforesaid appeal. It is the case of the petitioners that pursuant to the convictions recorded and sentences imposed, they were completing 7 years of actual sentence and total sentence of 10 years including remission as on 25-01-2011. It is their grievance that though they are entitle to special remission ordered by the Government vide G.O.Ms.No.283, Home (Prisons.C) Department, dated 30- 10-2010, but the said benefit was not extended to them by misconstruing the provision under clause 4(iv) of the said G.O. In view of the representations received from political parties and also family members of life convicted prisoners, Government has examined such requests and decided to grant remission of sentence on the occasion of Republic Day, 2011 to certain categories of life convicted prisoners. In the very same G.O., Government has notified guidelines to consider for grant of such remission. The relevant clauses in the said G.O., for the purpose of disposal of this writ petition, are as under: “The Government hereby issue the following guidelines giving one time exemption to the orders issued in the reference first read above, to consider the cases of following categories of prisoners in the State, who have been convicted by Civil Courts of Criminal jurisdiction: (a) All convicted women prisoners sentenced to imprisonment for life who have undergone an actual sentence of 5 years and total sentence of 7 years including remission as on 31-12-2010; (b) All decrepit prisoners as defined in Rule 321(h) of Andhra Pradesh Prison Rules, 19790, read with G.O.Ms.No.44, Home (Prisons.B2) Department, dated 16-03- 2007; (c) All the convicted prisoners sentenced to imprisonment for life including those governed by Section 433-A, the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) aged more than 65 years and have undergone an actual sentence of 5 years and total sentence of 7 years including remission as on 31-12-2010; and (d) All the convicted prisoners sentenced to imprisonment for life including those governed by Section 433-A, the 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 31-12-2010. 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, 1955; (vi) Prisoners convicted under the Protection of Civil Rights Act, 1955; (vii) Prisoners convicted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; (viii) Prisoners convicted for crimes against Women under Sections 354, 376 and 498 A of Indian Penal Code, 1860 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. In terms of the said G.O., prisoners, to avail the benefit of remission, must have served the actual sentence of 7 years and total sentence of 10 years including remission as on 31-12-2010. But, as per clause 4(iv), remission shall not apply to prisoners convicted of murder of Public Servants on duty. In this case, one of the deceased, i.e. Sri P.Appalanaidu, was the Sarpanch of Ramannapet village. On the ground that he was a public servant, benefit of remission was not extended to the petitioners. It is the case of the petitioners that Sarpanch of a Gram Panchayat is not a public servant within the meaning of Section 21 of the Indian Penal Code, 1860. The Superintendent of Police, Central Jail, Visakhapatnam, has filed counter-affidavit. In the counter- affidavit, it is averred that petitioners herein have completed 7 years of actual sentence and 10 years of total sentence including remission as on 25-01-2011, but their cases were not considered for release as per guidelines of G.O.Ms.No.283, Home (Prisons.C) Department, dated 30-10-2010 as they were involved in killing of a Sarpanch who was a public servant. It is further averred that names of the petitioners were not included in G.O.Ms.No.28, Home (Prisons.C) Department, dated 25-01-2011 which effected the release of life convict prisoners who have fulfilled the guidelines issued in G.O.Ms.No.283, dated 30-10-2010. As much as it is not in dispute that pursuant to convictions recorded by the learned Sessions Judge, as confirmed by this Court, petitioners have served 7 seven years of actual sentence and 10 years of total sentence including remission, the only question that remains for consideration is whether petitioners are entitled for special remission ordered by the Government in the light of clause 4(iv) of G.O.Ms.No.283, Home (Prisons.C) Department, dated 30-10-2010. From the averments made in the counter-affidavit, it is clear that though petitioners have fulfilled the criteria notified by the Government to avail the benefit of special remission on the occasion of the Republic Day of 2011, they are not given the said benefit only on the ground that they were convicted of murder of a public servant, i.e. Sarpanch. Learned counsel for the petitioners relies on a judgment of a Division Bench of this Court in W.P.Nos.22823 of 2009 and batch dated 28-01-2010 and also another judgment of a learned single Judge in W.P.No.25393 of 2009 dated 05-02-2010. Learned Government Pleader for Home appearing on behalf of the respondents admits that such an issue fell for consideration before the Division Bench, wherein it is held that a Sarpanch, who is elected under the provisions of the Panchayat Raj Act, is not a public servant within the meaning of Section 21 of IPC. In the said judgment, at para-15, it is held as under: “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 24-07-2009, and eventually held that a Sarpanch or a Pua- 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.” Even in the judgment rendered by the learned single Judge referred above, it is held that Sarpanch of a Gram Panchayat cannot be termed as public servant within the meaning of Section 21 IPC. As much as petitioners have completed the minimum periods notified in the aforesaid G.O., and in view of the ratio laid down in the judgment of the Division Bench referred above, the petitioners are entitled for grant of special remission as ordered by the Government in G.O.Ms.No.283, Home (Prisons.C) Department, dated 30-10-2010. As much as a special committee headed by the Principal Secretary to Government, Home Department, is constituted for the purpose of consideration of such cases, I deem it appropriate to allow this writ petition with a direction to the first respondent to consider the cases of the petitioners for grant of special remission without reference to clause 4(iv) of G.O.Ms.No.283, Home (Prisons.C) Department, dated 30-10-2010. It is made clear that, if necessary, matter can be placed before the committee constituted and necessary steps shall be taken, by considering the case of the petitioners, within four weeks from today. Based on such decision by the first respondent, necessary instructions shall be issued to respondents 2 and 3. Writ petition is allowed to the extent indicated above. No order as to costs. __________________ R. SUBHASH REDDY, J March 29, 2011 MRR