*THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY +Writ Petition No.21541 of 2009 % 04-11-2009 # Naseem Bibi, W/o.Md.Ayub Ali Ahmed, Aged about 40 years, Occ: House-Wife, R/o.H.No.18-1-372, Tallakunta, Chandrayangutta, Hyderabad … Petitioner Vs. $ 1. The Principal Secretary, Government of Andhra Pradesh, Home (Prisons-C) Department, Secretariat, Hyderabad and 2 others … Respondents ! Counsel for the Petitioner: Sri L.Ravi Chander, Representing Sri Milind G.Gokhale Counsel for the Respondents: Assistant Government Pleader, Representing Advocate General < Gist: > Head Note: ? Cases referred: 1. A.I.R. 1980 SUPREME COURT 2147 THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Writ Petition No.21541 of 2009 Date: 04-11-2009 Between Naseem Bibi … Petitioner and 1. The Principal Secretary, Government of Andhra Pradesh, Home (Prisons-C) Department, Secretariat, Hyderabad and 2 others … Respondents THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Writ Petition No.21541 of 2009 Oral Order: (per D.S.R.Varma, J.) Heard Sri L.Ravi Chander, learned Counsel, representing Sri Milind G.Gokhale, learned Counsel appearing for the petitioner and the learned Assistant Government Pleader, representing the learned Advocate General, appearing for the respondents. 2. This writ petition is filed seeking issuance of Writ of habeas corpus directing respondents 2 and 3 to produce the detenue, namely, Md.Ayub Ali Ahmed, son of Md.Shujath Ali, C.T.No.6739, who is lodged in Central Prison, Cherlapally, Ranga Reddy district and set him at liberty in the interest of justice. 3. The factual background that led to the filing of the writ petition is that the detenue, namely, Md.Ayub Ali Ahmed, was convicted along with two others in Sessions Case No.202 of 1989 by the I Metropolitan Sessions Judge, Nampally, Hyderabad for the offences under Sections 498-A, 302 and 307 of IPC, by judgment dated 06-01-1993 and he was sentenced to undergo ‘life imprisonment’, pursuant to which the detenue was taken into custody and was lodged in the prison and he has been undergoing the punishment. Subsequently, the appeal filed by him challenging the judgment rendered by the trial Court also was dismissed resulting in confirmation of the judgment rendered by the trial Court. 4. Be that as it may, in the year 2000 the Government of Andhra Pradesh had issued G.O.Ms.No.18, HOME (PRISONS-C) DEPARTMENT, dated 25-01-2000, granting pardon to the detenue as well as various other life convicts, basing on their behaviour and other relevant aspects. Consequently, the detenue was released owing to the extension of benefit under the said G.O., having served the sentence of imprisonment for 7½ years. After release, the detenue has started new life by taking up a new avocation. 5. It appears that all of a sudden, the Police of Chaderghat Police Station had taken the detenue into custody on 25-4-2006 without any intimation or furnishing any details whatsoever for his detention, whisking away to Central Prison, Cherlapally and since then he has been languished in jail. 6. At the outset, it is to be noted that subsequent arrest of the detenue had taken place on 25-4-2006 but no plausible explanation has been coming forth for filing this writ petition in the year 2009. 7. Since the issue involved in this writ petition is related to the Fundamental Rights guaranteed under Article 21 of the Constitution of India, this Court has taken into cognizance. 8. It further appears that the Government of Andhra Pradesh had issued a clarification by way of issuing Memo No.SA2/349/ 2001-II, dated 28-02-2002, to G.O.Ms.No.18, under which the detenue was set at liberty. It further appears that subsequently, G.O.Ms.No.190, HOME (PRISONS-C) DEPARTMENT, dated 07-8-2004, also was issued by the Government of Andhra Pradesh. 9. It is the contention of the learned Counsel for the petitioner that at least on the strength of the said G.O.Ms.No.190, dated 07-8-2004, the detenue ought to have been released extending the benefits mentioned therein. 10. At this stage itself, we feel it convenient to mention that the said G.O.Ms.No.190, dated 07-8-2004, has no bearing on the facts and circumstances of the present case, inasmuch as the same deals with the convicts released under different circumstances, particularly pursuant to the issuance of G.O.Ms.No.17, HOME (PRISONS-B.2) DEPARTMENT, dated 17- 01-2003, which again is nothing to do with the present set of facts and circumstances of the case. Therefore, we are not placing any reliance on the original G.O., or the clarificatory G.O.Ms.No.190, dated 07-8-2004. We are subjecting the present controversy to judicial scrutiny only on the anvil G.O.Ms.No.18, dated 25-01- 2000. 11. But, having released the detenue extending the benefits under G.O.Ms.No.18, dated 25-01-2000, cannot re-arrest him without taking the recourse of law. 12. It is the contention of the learned Counsel for the petitioner that the said act of re-arrest of the detenue on 25-4-2006 is totally arbitrary and the procedure adopted is not known to law and also violative of the Fundamental Rights guaranteed under Article 21 of the Constitution of India. 13. The learned Counsel for the petitioner seriously contends that when once the prisoners, to which class the detenue also belongs to, have been accorded the benefit under G.O.Ms.No.18, dated 25-01-2000, he cannot be re-arrested without following the procedure prescribed under law. 14. On the other hand, the learned Assistant Government Pleader contends that the detenue was released contrary to the guidelines mentioned in G.O.Ms.No.18, dated 25-01-2000 and therefore, the said mistake since had been realized by the authorities, a decision was taken to re-arrest the detenue. She analyses the situation by stating that the detenue was convicted for the offences under Sections 498-A, 302 and 307 of IPC and the guidelines mentioned in G.O.Ms.No.18, dated 25-01- 2000, postulate that the prisoners shall satisfy certain conditions mentioned in the G.O., to have the benefit of remission under the said G.O. 15. The said G.O., makes it further clear that the benefit of remission of sentence cannot be made applicable to certain categories of prisoners, covered by clause (4) of para 3. 16. For convenience, clause (4) of para 3 of G.O.Ms.No.18, dated 25-01-2000, is extracted hereunder: “4. Prisoners convicted for crimes against women such as Section 376 and 354 of IPC while being sentenced to imprisonment for life.” 17. Invoking this clause, since the detenue was not convicted for the offences either under Section 376 or 354 of IPC he was given the benefit of remission of sentence under the said G.O. However, subsequently, in the year 2002 the mistake had been realized. 18. What actually prompted the authorities to realize the mistake appears to be that from the above clause, the expression ‘such as’ was not given required attention. If the sentence is read properly, it would only indicate that the offences mentioned in clause (4) of para 3 of G.O.Ms.No.18, dated 25-01-2000, are only illustrative in nature but not exhaustive at all. 19. In other words, the intention and the object of the Government were -- not to release or extend the benefit of remission to those who were convicted for the offences committed against women, such as Sections 376 and 354 of IPC. In fact, there are various other offences in the Indian Penal Code dealing with the offences against women viz., Sections 304-B, 306, 498-A of IPC etc. These are all various kinds of offences against women, which would disentitle a person to have the benefit of remission of sentence under G.O.Ms.No.18, dated 25-01-2000. 20. The expression ‘such as’ makes it further clear that it was never intended for the convicts, who were involved in commission of only two offences i.e., under Sections 376 and 354 of IPC. That is precisely the reason why, we could perceive from the very language employed in the said clause and the expression ‘such as’ has only illustrative character and as a consequence, since the detenue was convicted for the offence under Section 498-A of IPC also, which is an offence against women, in fact, he was not entitled to have the benefit of remission. Unfortunately, the detenue was set at liberty on a premise that he was not convicted for the offences either under Section 376 or 354 of IPC ignoring the fact that he was involved and was convicted for the offences punishable under Section 498-A of IPC, which also was an offence against women. 21. Having realized the said mistake, no doubt, the authorities concerned had taken a right decision to take away the benefit that was erroneously extended to the detenue. To this extent, we are in agreement with the respondents. In a way it is a corrective measure that ought to be taken but only after following the due process of law. What is due process of law is the question to be addressed now at this stage. This aspect will be dealt with at a later stage of this order. 22. It is pertinent to note another dimension in this case i.e., G.O.Ms.No.18, dated 25-01-2000, was issued by the Governor of Andhra Pradesh while exercising his sovereign authority under Article 161 of the Constitution of India. It is too well known that there is a clear distinction between the sovereign powers exercisable by the Governor under Article 161 of the Constitution of India and the executive powers that can be exercised by the State, which amounts to subordinate legislation under Article 162 of the Constitution of India. 23. By necessary implication, G.O.Ms.No.18, dated 25-01-2000, issued by the Governor of Andhra Pradesh exercising his jurisdiction traceable under Article 161 of the Constitution of India and in such a case, it is only the Governor who can make the said G.O., a nullity or make amendments to such G.O. 24. But, in the instant case, the sovereign powers of the Governor have been interfered with by the Director General and Inspector General of Prisons and Correctional Services, Andhra Pradesh, Hyderabad by issuing a Memo dated 28-02-2002. The modification by the said authority in the said Memo even be treated as an action of the State. Our further verification did not yield any positive information as regards the power of issuance of the said Memo or anything is placed before this court as to whether any orders emerged from the office of the Governor regarding the issuance of the Memo clarifying a particular clause in the G.O., issued pursuant to the orders of the Government. 25. We are fortified with our view by the observations made by the apex court in Maru Ram v. Union of India[1], at para 59, page 2169 of the said judgment, which is as under: “59. It is apparent that superficially viewed, the two powers, one constitutional and the other statutory, are co-extensive. But two things may be similar but not the same. That is precisely the different. We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States. The source is different, the substance is different, the strength is different, although the stream may be flowing along the same bed. We see the two powers as far from being identical, and, obviously, the constitutional power is ‘untouchable’ and unapproachable and cannot suffer the vicissitudes of simple legislative processes. Therefore, Section 433A cannot be invalidated as indirectly violative of Arts. 72 and 161. What the Code gives, it can take, and so, an embargo on Sections 432 and 433 (a) is within the legislative power of Parliament.” 26. Now, it is absolutely obvious that there is undoubtedly encroachment of the statutory power of the State on the Constitutional powers of the Governor exercisable under Article 161 of the Constitution of India. 27. Therefore, for the above reasons, we are of the considered view that when the State or the functionaries of the State realized a mistake while interpreting a G.O., issued by the Governor, ought to have gazed into two contingencies – firstly; whether there was any interference with the sovereign functioning of the Governor ? secondly; whether such corrective measure was being taken in accordance with law ? 28. The first question had already answered in the earlier paragraphs and in order to answer the second question, we have to necessarily delve into the relevant legal position. 29. It is appropriate for us to deal with Section 432 of Cr.P.C., which reads thus: “432. Power to suspend or remit sentences.—(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. (2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists. (3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension, or remission, and thereupon the person in whose favour the sentence has been suspended or remitted, may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence. (4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will. (5) The appropriate Government may, by general rules or special orders give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with: Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and— (a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or (b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail. (6) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property. (7) In this section and in s 433, the expression “appropriate Government” means,-- (a) in cases where the sentence is for an offence against, or the order referred to in sub-s (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; (b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.” 30. Sub-section (3) of Section 432 of Cr.P.C., postulates that the Government has a power to cancel the suspension or remission granted to a person and further empowers the Police to arrest such person without warrant and such person shall be remanded in order to make him undergo the unexpired portion of the sentence. 31. From a bare reading of the said provision, it appears that the said provision contains four main ingredients: firstly; non-satisfaction of the Government about the suspension or remission of the sentence, secondly; the order of cancellation of such suspension or remission, thirdly; arrest of such person even without warrant and fourthly; he be remanded to the Court of law in order to make him undergo unexpired portion of the sentence. 32. Out of the said ingredients, only the first and the third ingredients are present in the case on hand but not the other two. In other words, having not been satisfied with the order of remission of sentence there was no corresponding order of cancellation of such order of remission or suspension of the sentence. Again, in the absence of any such order of cancellation, the Police had jumped at the arrest of the detenue and he was sent to prison. Insofar as the arrest is concerned, sub-section (3) of Section 432 of Cr.P.C., makes it clear that no warrant need be issued by the court. But, what is required is -- such person, after arrest with or without warrant, be presented before a court of law and then only be remanded to prison. 33. To put it in a simpler and précised manner, the person, against whom there is an order of cancellation of the order of remission of sentence, can be arrested and he shall be presented before the court like any other person against whom an accusation is made and only by virtue of the orders of the court, such person can be sent to prison -- meaning thereby that, such person will be under the judicial custody again as per the procedure. 34. The incidental question that may prop up now at this stage is – is there any such procedure prescribed ? To this question, the answer is available from the very available sub-section (3) of Section 432 of Cr.P.C., itself, as was already pointed out. In other words, after arrest, remand is sine qua non. 35. That apart, in the present case, the situation is all the more different viz., the above provision i.e., sub-section (3) of Section 432 of Cr.P.C., can be invoked only when the remission of sentence was accorded by the executive action under Article 162 of the Constitution of India. But, as already noticed, in the present case, remission of sentence was granted to the detenue by the sovereign authority of the Governor. But, there is no such power prescribed as could be found under sub-section (3) of Section 432 of Cr.P.C., in Article 161 of the Constitution of India. In such circumstances, it is yet another question as to whether what could be the procedure that is to be followed ? In other words, can the Police arrest such person in the absence of any such procedure prescribed under the Constitution of India ? 36. The answer could and should be that even in the absence of any such procedure under law that no such person, who is enjoying the freedom under Article 21 of the Constitution of India, can be deprived of the same without following due process of law. The due process of law, though not could be traced under Article 161 of the Constitution of India, the procedure prescribed under sub-section (3) of Section 432 of Cr.P.C., can be invoked in order to satisfy the test of due process of law, reason being procedure prescribed under sub-section (3) of Section 432 of Cr.P.C., is the only procedure known to law. Hence, it is always desirable to adopt a known procedure prescribed under the Code of Criminal Procedure, which deals with the arrest of a person in different contingencies, including the contingency under which a person was given remission of sentence and is to be taken back. 37. In fact, of course at the cost of repetition, it is imperative for us to point out that there was no order of cancellation of remission or suspension of the sentence at all by the Constitutional power, by which the detenue enjoyed the benefit of remission of sentence, to enable the executive to take him into custody. 38. In such peculiar facts and circumstances, the procedure known to law alone is expedient to be taken recourse of, in order to erase the stigma of violation of the Fundamental Rights guaranteed under Article 21 of the Constitution of India. 39. For the aforementioned reasons, we are convinced that we have no other option but to declare the impugned detention of the detenue, namely, Md.Ayub Ali Ahmed, son of Md.Shujath Ali, C.T.No.6739, who is lodged in the Central Prison, Cherlapally, Ranga Reddy district as illegal and violative of the Fundamental Rights guaranteed under Article 21 of the Constitution of India and accordingly, he shall be set at liberty forthwith, if not required in any other case. 40. The writ petition is accordingly allowed, at the stage of admission. ________________________ JUSTICE D.S.R.VARMA ________________________ JUSTICE G.V.SEETHAPATHY 04th November, 2009. Note:- L.R.Copy to be marked (Yes / No) (B/o) Ak THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Writ Petition No.21541 of 2009 (Order of the Division Bench delivered by DSRV, J.) 04th November, 2009. (Ak) [1] A.I.R. 1980 SUPREME COURT 2147