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 : 24380 of 2009 Between: P.Venkatamma, W/o Ram Murthy, age 45 years, Occ: House Wife, R/o Bakkaiahgudem village, Nereducherla Mandal, Nalgonda District. ..... PETITIONER AND 1 The Government of Andhra Pradesh, represented by its Principal Secretary, Home (prisons) Department, Secretariat, Hyderabad and another. .....RESPONDENT WRIT PETITION NO : 23069 of 2009 Between: Karanam Vijayalakshmi, W/o Rama Narasaiah, age 36 years, Occ: House Wife, R/o Bakkaiahgudem village, Nereducherla Mandal, Nalgonda District. ..... 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.24380 of 2009 AND WRIT PETITION No.23069 of 2009 COMMON ORDER: Since the issue raised in both the Writ Petitions is one and the same, both these writ petitions are being disposed of by this common order. 2 These two writ petitions are filed seeking a Writ of Mandamus declaring the action of the 1st respondent in not releasing the husband of the petitioner in W.P.No.24380 of 2009 i.e., P.Rama Murthy, S/o Narasaiah, Convict No.3787 lodged in Prisoners Agricultural Colony (Open Air Jail), Cherlapalli, Ranga Reddy District and also the husband of the petitioner in W.P.No.23069 of 2009 i.e., Karanam Rama Narasaiah, S/o Somulaiah, Convict No.7998, 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 convicts. 3 Brief facts of the case are that the husband of the petitioner in W.P.No.24380 of 2009 is Accused No.3 and the husband of the petitioner in W.P.No.23069 of 2009 is Accused No.1 in S.C.No.412 of 1998 on the file of the Court of the 2nd Additional Sessions Judge, Nalgonda and the trial Court by its judgment dated 23.07.2001 convicted and sentenced the accused including the husbands of the petitioners herein to undergo life imprisonment and also to pay a fine of Rs.2000/- each, in default, to suffer simple imprisonment for five month each for the offence under Section 302 of I.P.C.; A-1 and A-3 were further convicted and sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.1000/- each, in default to suffer simple imprisonment for two months for the offence under Section 148 of I.P.C; A-1 is further convicted and sentenced to undergo rigorous imprisonment for five years and also to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for Six months for the offence under Section 3 of Explosive Substance Act. All the substantive sentences of imprisonment were directed to be run concurrently. Aggrieved by the said conviction and sentence, the accused preferred Crl.A.No.1080 of 2001 and this Court by its Judgment dated 28.01.2003 dismissed the said appeal confirming the said conviction and sentence imposed by the trial court. The said judgment has become final. 4 According to the petitioners, as on 26.10.2009, both the accused have undergone the actual sentence of 7 years 2 months and 18 days and with all remissions, they have undergone the total sentence of 11 years 2 months and 10 days. 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 husbands of the petitioners herein who are A-1 and A-3 were also in the list of eligible candidates to be released in terms of the aforesaid G.O. However, they were not given the benefit and not released, on the ground that they 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’ husbands were not convicts of murder of public servant on duty. 5 A detailed counter-affidavit has been filed by the respondents. It is mainly contended that the life-convicted prisoners herein are not entitled to the benefit of the said G.O.Ms.No.338 dated 24.07.2009 since they had committed the murder of a public servant on duty. 6 Heard the learned Counsel for the petitioners and the learned Government Pleader for Home. 7 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. 8 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)……………. 9 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 prisoners herein had undergone an actual sentence of 7 years and total sentence of 10 years including remission. If the same is accepted, they are entitled to have special remission and consequent release. 10 As per the charge sheet allegations, the deceased, Sunkari Lingaiah, was working as 7th ward member of Bakkaiahgudem village, Nereducherla Mandal, Nalgonda district and while he was proceeding to his agricultural fields on 21.11.1995 at about 6.30 A.M to attend agricultural operations, the accused and others beat the deceased with sticks on his head and caused injuries, as a result the deceased died. 11 After trial the accused were convicted and sentenced as stated supra and the life-convicted prisoners herein have completed the actual sentence of 7 years and total sentence of 10 years including remission. If that alone is the criteria, automatically they are 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. 12 Now the question that falls for consideration is as to whether the deceased i.e., 7th ward member of Bakkaiahgudem village, Nereducherla Mandal, Nalgonda, do come within the ambit of public servant on duty or not? 13 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 disputes between the families of the accused and the deceased as they belong to different political parties and the alleged incident took place at about 6.30 A.M. on 21.11.1995 when the deceased was going to his fields to attend agricultural operations. 14 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 held that the deceased was not a public servant on duty, the convicted prisoners (A-1 and A-3) are entitled to the remission of sentence provided for under the said G.O. for the reason that they have completed 7 years of actual sentence and total sentence of 10 years including remission. As on today, according to the learned Counsel for the petitioners, the convicted prisoners i.e., A-1 and A-3 have completed the actual sentence of 7 years 4 months and 12 days and total sentence of 11 years 4 months and 4 days including remission. 15 For the aforesaid reasons, this Court is of the view that the convicted prisoners i.e., A-1 and A-3 are entitled to the benefit provided for in the said G.O.Ms.No.338 dated 24.07.2009. 16 In the result, both the writ petitions are allowed and the respondents are hereby directed to release the Convict No.3787 by name P.Rama Murthy, lodged in Prisoners Agricultural Colony (Open Air Jail), cherlapalli, Ranga Reddy District and also the Convict No.7998 by name Karanam Rama Narasaiah, lodged in Central Prison, Cherlapalli, Ranga Reddy District, if their 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.