IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SIXTEENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE R. KANTHA RAO WRIT PETITION Nos.19766 AND 21270 OF 2008 WRIT PETITION NO : 19766 of 2008 Between: Chaluvadi Manikyamba W/o.Jagadeesh Babu,Hindu 56-8-9,5-2 Sai Sudha Enclave Vidyanagar, Rajahmundry,E.G District ..... PETITIONER AND 1 The State of Andhra Pradesh rep.by its Principal Secretary Home Department, Secretariat Buildings, Hyderabad 2 The Director General and Inspector General of Prisons and Correctional Services, Hyderabad, Andhra Pradesh 3 The Superintendent Central Prison Rajahmundry East Godavari District .....RESPONDENT(S) Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court will be pleased to issue a writ order or direction more one in the nature of writ of Hebeas Corpus and direct the respondents herein to release Chaluvadi Jagadeesh Babu S/o. C.Jagannayakulu CT No.8387 confined in Central Prisons Rajahmundry 3rd respondent who is the husband of the petitioner to produce before this Hon'ble Court, set him at liberty forthwith by declaring the action of the respondents herein in not releasing the petitioner's husband by extending the benefits of the guidelines issued in G.O.Ms No.197 Home (Prisons C) Department dt 7-8-2007 and by accepting the recommendations of the Selection Committee and deleting his name while issuing orders in approving the recommendations of the Committee vide G.o.Ms No.168 Home (Prisons C) Department dt 14-8-2008 on the occasion of Commemoration of 150 years of 1st War of Independence as illegal, arbitrary affecting the right to liberty which affects the fundamental rights of the citizen amounting to wrongful confinement and illegal detention in keeping him in Jail beyond 14-87-2008 award damages. Counsel for the Petitioner: SMT A.GAYATRI REDDY Counsel for the Respondents: THE ADVOCATE GENERAL WRIT PETITION NO : 21270 of 2008 Between: Gundala Pullaiah S/o.Late Sri Subbaiah Resident of Pallerlamudi village, Thiruvur Mandal Kodur Post, Krishna district ..... PETITIONER AND 1 Government of Andhra Pradesh, rep. by its Secretary Home Department, Secretariat, Hyderabad 2 Government of Andhra Pradesh, rep.by its Secretary Home (Prisons C) Department, Secretariat, Hyderabad 3 The Superintendent of Police, East Godavari District Rajahmundry 4 The Superintendent of Jails, Central Prison Rajahmundry, East Godavari District .....RESPONDENT(S) Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court will be pleased to issue any writ order or direction preferably a writ in the nature of writ of Habeas corpus declaring the continued detention of the petitioner son viz., Sri Gundala Seshubrahmam CT.No.6485 who is now lodged in Rajamundry Central Prison,as illegal, violative of Article 21 of the Constitution of India as well as violative of the G.O.Ms.No.197, Home (Prison C) Department dated 7.8.,2007 and consequently direct the respondents to set the petitioner son viz., Sri Gundala Seshubrahmam Ct.No.6485 at liberty forthwith by releasing him from Rajahmundry Central Prison, pending disposal of the above writ petition Counsel for the Petitioner: MR.P.VENUGOPAL Counsel for the Respondents: THE ADVOCATE GENERAL The Court made the following : COMMON ORDER: (per Sri A. Gopal Reddy, J) Since the issue involved in both the writ petitions is one and same, they are being heard and disposed of by this common order. These writ petitions are filed by the wife of one Sri Chaluvadi Jagadeesh Babu, C.T No. 8387 and the father of one Sri Gundala Seshubrahmam, C.T No. 6485 who are confined in Central Prison, Rajahmundry for issuance of a writ of habeas corpus by declaring their detention as illegal and to release them by extending the benefit of guidelines issued in G.O. Ms. No. 197, Home (Prisons C) Department, dated 07-08-2007 and set them at liberty forthwith. The husband of the petitioner in Writ Petition No. 19766 of 2008 was a practising advocate and was convicted for the offence under Section 302 IPC and sentenced to undergo imprisonment for life in S.C No. 76 of 2003 on the file of the learned Principal Sessions Judge, Rajahmundry dated 01-08-2005. On appeal being filed by him, this Court in Criminal Appeal No. 1288 of 2005 vide judgment dated 31-07-2006 modified the sentence to that of imprisonment for six years and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for one month. Since then, he is confined in Central Prison, Rajahmundry. Whereas, the son of the petitioner in Writ Petition No. 21270 of 2008 was convicted for the offence under Section 302 IPC and sentenced to undergo imprisonment for life in S.C 174 of 2001 on the file of the learned VII Additional Sessions Judge (Fast Track Court), Guntur, dated 13-08-2004. On appeal being filed by him, this Court in Criminal Appeal No.1977 of 2004 by judgment dated 14-03-2006 modified the sentence of life imprisonment to that of ten years rigorous imprisonment and since then, he is confined in Central Prison, Rajahmundry. While the husband and son of the petitioners herein are serving the sentence of imprisonment, the Government vide G.O.Ms.No. 197, Home (Prisons C) Department, dated 07-08-2007, on the occasion of commemoration of 150 years of first war of independence, decided to grant remission of sentence to certain categories of non-life prisoners who have been convicted for the offence or offences against the laws relating to matters to which executive power of the State extends and accordingly issued guidelines to consider the cases of certain category of prisoners in the State who have been convicted by civil Courts of criminal jurisdiction to remit and reduce the sentences. The guidelines read as under: “(a) All convicted prisoners other than life convicts who have undergone half of the sentence including the remission as on 15.08.2007. (b) To grant special remission of one month for each year of sentence undergone to all those convicted prisoners with a sentence of one year and above. (c) Decrepit prisoners as defined in Rule 321 (h) of A.P. Prison Rules, 1979, read with G.O.Ms.No. 44, Home (Prisons.B2) Department, dated 16.3.2007. (d ) Special remission of thirty (30) days to all convicted prisoners undergoing sentence of less than one year.” The Government constituted a Committee under the chairmanship of Director General and Inspector General of Prisons and Correctional Services, Andhra Pradesh, Hyderabad to prepare the list of eligible non-life convicts as per the above guidelines and recommend their cases for consideration, in the proforma given to the annexure to the G.O. It is also relevant to notice that the Government through G.O.Ms.No. 196, Home (Prisons C) Department, dated 07-08-2007 also issued guidelines for release of the life convicts. Both the G.Os i.e., G.O.Ms.No. 196 and G.O.Ms.No. 197, dated 07-08-2007 were subject matter of challenge before the Supreme Court in Writ Petition (Criminal) No. 100 of 2007 and the operation of both the GOs was stayed by the Supreme Court by an order dated 16-08-2007 initially, but subsequently by order dated 08-02-2008 stay in respect of G.O.Ms.No. 197, dated 07-08-2007 was vacated. On vacating the stay, the Government issued G.O.Ms.No.99, Home (Prisons C) Department, dated 12-05- 2008 extending the cut off date to 30-04-2008. The High Level Committee constituted in G.O.Ms.No. 197, dated 07-08-2007 formulated the guidelines for release of the non-lifers. The High Level Committee recommended 317 non-life convicts to come within the zone of consideration, including the husband and the son of the petitioners for their release. While releasing the several non-life convicts whose names were recommended, the husband and son of the petitioners respectively were not released. Therefore, the petitioners filed the present writ petitions questioning the action of the respondents as violative of Article 14 of the Constitution of India. The Principal Secretary to Government, Home (Prisons) Department, the 1st respondent herein filed a counter affidavit stating that the High Level Committee drawing on their experience formulated, inter alia, the guideline that the prisoners whose conduct in the prison was good and had completed 45 years of age will be sufficiently mature and would not relapse into a life of crime. 611 prisoners came within the zone of consideration as per G.O.Ms.No. 197, dated 07-08-2007 and their cases were duly considered in accordance with the guidelines formulated for recommending the cases of the prisoners who satisfied the guidelines and 317 prisoners came within the zone of consideration satisfying the guidelines issued by the High Level Committee. Since the husband and the son of the petitioners respectively are below the age of 45 years, their cases cannot be considered. On the petitioner in Writ Petition No. 21270 of 2008 filing additional affidavit stating that many of the non-life prisoners who are below the age of 45 years were also released as per the list enclosed to the counter affidavit, an additional counter affidavit has been filed by the 1st respondent stating that many of the prisoners who were aged below 45 years were left with very little sentence to undergo. Therefore, the High Level Committee made recommendations for their release considering the conduct and nature of the offence, which fact has not been stated in the counter affidavit filed earlier. The Superintendent of Jails, Central Prison, Rajahmundry, the 3rd respondent filed a counter affidavit stating that he submitted the list of 132 eligible prisoners as per the guidelines issued in G.O.Ms.No.197, dated 07-08-2007 and as per the orders issued by the Government, 91 prisoners were released vide G.O.Ms.No. 168, dated 14-08-2008. According to him, the names of the alleged detenus did not appear in G.O.Ms.No. 168 along with the 40 prisoners and therefore, they are not in illegal detention and are serving the sentence as per the orders passed by this Court in the criminal appeals, referred to above. Heard the learned counsel for the petitioners and the learned Advocate General appearing for the respondents. Learned Advocate General fairly conceded that the husband of the petitioner in Writ Petition No. 19766 of 2008 is entitled to be released as he is above 45 years of age as per his date of birth entered in the secondary school leaving certificate, but contended that the son of the petitioner in Writ Petition No. 21270 of 2008 though satisfied the guidelines issued in G.O.Ms.No. 197, he is not entitled to be released since he is below the age of 45 years. Some of the prisoners who are below the age of 45 years were released by extending the benefit of G.O.Ms.No. 197 as the left over sentence to be undergone is very little and considering their conduct also, the Committee recommended for release of the prisoners who are below the age of 45 years. The name of the son of the petitioner in Writ Petition No. 21270 of 2008 was also included by the 3rd respondent in the list of prisoners who have undergone half of the sentence including the remand period and remission, certifying about his conduct and stating that he is entitled to be released in terms of guidelines issued in G.O.Ms.NO. 197, dated 07-08-2007. In the additional affidavit filed by the petitioner in Writ Petition No. 21270 of 2008, he furnished the names of non-lifers who were serving the sentence for the offence under Section 304 Part-II IPC whose ages range from 26 to 42 years. They were released by extending the benefit under G.O.Ms.No. 197. Learned Advocate General contends that though they are not entitled to be released as per the guidelines issued by the High Level Committee, since the left over sentence is very little, recommendations were accepted and they were released and the petitioner cannot claim a negative equity for extension of the benefit and complain violation of Article 14 of the Constitution. Admittedly, the guidelines issued in G.O.Ms.No. 197 do not differentiate the non-life convicts on the basis of age. It was extended to the non-life convicts who have undergone half of the sentence including the remission as on 15-08-2008 which was extended to 30-04-2008, as mentioned above. The son of the petitioner in Writ Petition No. 21270 of 2008 had admittedly undergone half of the sentence including the remission as on the cut off date and he is aged above 39 years. The 3rd respondent also recommended his name certifying that his conduct is good and he is entitled to be released. The guidelines applied for recommending the release as framed by the High Level Committee are as under: “1. No prisoner who falls within the ambit of G.O.Ms.No. 197 Home (Prisons C) Dept. dt. 7.8.07 under the categories specified under para 3 (i) to (xi) shall be considered/recommended. 2 . Prisoner involved in property offences including Dacoities and Robberies, Prevention of Corruption Act cases Extremists/Naxalites, and those who had escaped from prison and later re-arrested (Escapees) and those involved in Prison Rule violations (Bad conduct) shall not be recommended. 3. Prisoner should have completed more than half of the sentence. 4. Prisoners should have completed 45 years of age.” Though it is stated that the prisoners should have completed 45 years of age but the same has not been uniformly applied to the prisoners who are below 45 years of age, which fact has been admitted in the additional counter affidavit filed by the 1st respondent. When G.O.Ms.No. 197 does not differentiate the non-life convicts who have completed half of the sentence, the Committee constituted under the G.O cannot make different categories of prisoners under the guidelines. This Court in J. Jagaram & others vs. State of Andhra Pradesh & others held that excluding remission to certain class of prisoners is violative of Article 14 of the Constitution. In view of the same, the non-release of the husband and son of the petitioners by extending the benefit of G.O.Ms.No. 197 on the guidelines framed by the Committee constituted in the said G.O is violative of Article 14 of the Constitution and the petitioners are entitled to the benefit of the guidelines framed in the said G.O. The writ petitions are accordingly allowed ordering the release of Sri Chaluvadi Jagadeesh Babu, C.T No. 8387 confined in Central Prison, Rajahmundry who is the husband of the petitioner in Writ Petition No. 19766 of 2008 and Sri Gundala Seshubrahmam, C.T No. 6485 confined in Central Prison, Rajahmundry who is the son of the petitioner in Writ Petition No. 21270 of 2008 and they shall be set at liberty forthwith. A.GOPAL REDDY, J R. KANTHA RAO, J 16-12-2008 ks