*THE HONOURABLE SRI JUSTICE GOPALA KRISHNA TAMADA +W.P. No.22621 of 2009 %08-12-2009 #Pinjari Pandlapuram Pedda Hussain Saheb ….petitioner Vs. $ The Government of AP rep. by its Principal Secretary, Hyderabad and others. …. Respondents !Counsel for the Appellants: Sri P.Veera Reddy Counsel for the Respondents: G.P. for Home <Gist : >Head Note: ? Cases referred: 1. 1987 CRI.L.J.549 2. AIR 2000 S.C. 937 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION NO : 22621 of 2009 Between: Pinjari Pandlapuram Pedda Hussain Saheb ..... PETITIONER AND The Government of AP rep. by its Principal Secretary, Hyderabad and others. .....RESPONDENT(S) HONOURABLE SRI JUSTICE GOPALA KRISHNA TAMADA W.P.No.22621 of 2009 ORDER: The petitioner-A-7 and A-1 to A-6 and A8 to A-17 are the accused in P.R.C.No.3 of 1998 on the file of the Judicial Magistrate of I Class, Allagadda. But, however, since A-13 was found absconding, the learned Magistrate separated the case against A-13 as P.R.C.No.11 of 2000 and on committal, both the cases were taken on file as Sessions Case Nos.161 and 267 of 2000, respectively, on the file of the IV Additional Sessions Judge, Kurnool. Since both the cases arose out of the same crime No.35 of 1997, the trial Court taken up both the cases together and disposed of by a common judgment dated10-09- 2001. 2. According to the petitioner, he is arrayed as A-7 in S.C.No.161 of 2000 and the trial Court, by its common judgment dated 10-09-2001, delivered in S.C.Nos.161 and 267 of 2000, convicted him and sentenced him to undergo life imprisonment and the same was confirmed by the High Court in its common judgment, dated 24-02-2003 in Crl.A.Nos.1494 and 1691 of 2001. He further stated that as on 15-08-2009, he has completed the actual sentence of 7 years 8 months and 20 days, and with all remissions, he has completed total sentence of 12 years 4 months and 16 days as on 18-10-2009, and though he is entitled to the benefit of granting special remission under G.O.Ms.No.338, dated 24-07-2008, the respondents refused to provide the said benefit and did not release him and hence, he approached this Court and filed the present writ petition. 3. The brief facts are that one Munagala Venkata Thimma Reddy- deceased No.1 and Yerapu Thirupam Reddy-deceased No.2, are the residents of Yalluru village in Gospadu Mandal. At the relevant point of time, the 2nd deceased was working as a President (Single Window) of Primary Agricultural Co-operative Society, Yalluru. It appears that there are two factions in the said village and in the elections conducted for the Water Users Associations in various villages in Gospadu Mandal, on 05- 06-1997, there was an altercation in between two groups in connection with filing of nominations for the election of office bearers. It is alleged that A-1 to A-5 attacked the 1st deceased and the petitioner-A-7 along with A-6, A-8 and A-9 attacked the 2nd deceased, and on account of the said attack, those two persons died instantaneously. A crime was registered and after investigation, the police filed charge sheet against 17 accused. The trial Court having come to the conclusion that the prosecution has established the guilt of some of the accused, while acquitting A-10, A-11 and A-14 to A-17, convicted A-1 to A-9, A-12 and A-13, for the offences punishable under Sections 148, 302, 427 read with Section 149 IPC, and accordingly, sentenced them to undergo rigorous imprisonment for two years each for the offence under Section 148 IPC; rigorous imprisonment for 3 months each for the offence under Section 427 and read with Section 149 IPC; and also sentenced to undergo imprisonment for life for the offence under Section 302 IPC. A-1 to A-5 are further sentenced to under go rigorous imprisonment for one year each, on each count, for the offences under Sections 3 and 5 of the Explosive Substances Act. All the sentences were ordered to run concurrently. As against the said common judgment, the convicted persons approached the High Court and filed Crl.A.Nos.1494 and 1691 of 2001, and this Court, while acquitting all other accused, however, confirmed the said conviction and sentence insofar as A-2 to A-4 and A-7 (petitioner herein) are concerned. The said sentence imposed by the trial Court and as confirmed by the High Court was upheld by the Supreme Court. During the course of trial, and when the appeal was pending before this Court, the petitioner was in jail and as on 15-08-2009, he has completed an actual sentence of 7 years 8 months and 20 days. While so, as the Government has received several representations from the political parties and family members of life convicted prisoners, it examined the same and issued G.O.Ms.No.338 on 24-07-2009 granting special remission to the life convicted prisoners on the occasion of the Independence Day 2009 and it also prescribed certain guidelines as to who are those life convicts entitled to the said remissions. Pursuant to the said G.O., the Superintendents of Jails concerned were asked to prepare the list of those who are entitled to those special remissions and as the petitioner is in open prison at Anantapur, and taking into account the fact that he is in the jail for a period of 7 years 8 months and 20 days, and including remission, the total sentence was worked out to 12 years 4 months and 16 days as on 18-10-2009, the 3rd respondent-Superintendent of Jail, Open Air Prison, Peddipally, Ananthapur District, recommended the case of the petitioner and also other accused i.e. A-2 to A-4 in S.C.No.161 of 2000. Pursuant there to, the Government issued G.O.Ms.No.415, dated 01-10-2009. However, to his utter surprise, the petitioner’s name was deleted from the said list, though similarly placed accused i.e. A-2 to A-4 were allowed to have the said special remission. According to the petitioner, he comes within the parameters prescribed under G.O.Ms.No.338, dated 24-07-2009, and the 3rd respondent also recommended his name, but for oblivious reasons, the Government has not considered the case of the petitioner for grant of special remissions and not released him, and hence, he approached this Court and filed the present writ petition. 4. A detailed counter affidavit has been filed by the Government. The main contention as per the counter-affidavit is that the 2nd deceased was a public servant at the time of his death and as the accusation levelled against the petitioner that he attacked the 2nd deceased i.e. public servant, the petitioner is not entitled to the benefit of the said G.O.Ms.No.338, dated 24-07-2009 and hence, his name was not considered for grant of special remissions. 5. Heard the learned counsel for the petitioner and the learned Government Pleader for Home. 6. The main contention of the learned counsel for the petitioner, Sri V.Veera Reddy, is that, may be it is a fact that the 2nd deceased by name Yerasu Thirupam Reddy was holding the office of President of Primary Agricultural Cooperative Credit Society, but that office cannot be treated as a public office within the meaning of Section 21 IPC. It is his further contention that even if it is accepted that the petitioner is a public servant within the meaning of Section 21 IPC, it is only for those public servants who are on duty at the time they are attacked and murdered, the said G.O. applies and those life convicts are not entitled to the benefit of special remissions. In support of his contentions, he placed reliance on the decisions reported in STATE OF PUNJAB v. KESARI CHAND AND ANOTHER[1] and STATE OF MAHARASHTRA v. LALJIT RAJSHI SHAH AND OTHERS[2]. 7. The learned Government Pleader for Home reiterated the stand taken by the Government and submitted that as the petitioner attacked the public servant i.e. the 2nd deceased, the Government cautiously excluded his name though the 3rd respondent recommended his name for granting special remission. 8. It is a fact that after considering several requests from the political parties as well as the family members of the prisoners, the Government decided to grant remission of sentence on the occasion of Independence Day 2009 and in that context, it issued G.O.Ms.No.338 on 24-07-2009, prescribing so many guidelines. The relevant guidelines, for the purpose of deciding the present case, as mentioned in clause (d) of para 3, which read as follows: “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.” 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 petitioner, who is a life convict, had undergone an actual sentence of 7 years 8 months and 20 days, and total sentence of 12 years 4 months and 16 days including remissions. If the same is accepted, the petitioner is entitled to have special remissions and should be released. 9. The contention of the learned Government Pleader for Home is that under Clause (iv) of Para 4 of the said guidelines, the prisoners convicted of murdering of a public servant on duty are not entitled to the special remissions. The further allegation levelled against the petitioner is that he along with other accused attacked the 2nd deceased who was holding the office of the President, Primary Agricultural Cooperative Society as on that date. 10. Now the question that falls for consideration is as to whether the 2nd deceased can be termed as a public servant or not? 11. In my considered view the 2nd deceased viz., Yerasu Thirupam Reddy cannot be termed as a public servant within the meaning of Section 21 IPC. He may be a public servant within the meaning of the Co- operative Societies Act, but not a public servant within the meaning of Section 21 IPC. However, it may not be necessary for this Court to dwell into this aspect in detail for the reason that it is no more res integra. In the judgment reported in Kesari Chand’s case (1st cited supra), the High Court of Haryana and Punjab held thus: “The President and the Secretary of a Co-operative Society are not “public servants” within the meaning of clause 12 (b) of Section 21 IPC and to them the provisions of Section 409 IPC, are not attracted, because the co-operative society is not a “Corporation” established by a State Act in whose service or pay they supposedly are, or are assumed to be. The members who compose the corporation are quite different from the corporation itself; for, a corporation is a legal person just as much as an individual. Thus, it is a group of individuals who first associate on their own volition to become a co-operative society and then seek a status as a body corporate under the Co-operative Societies Act.” 12. The another question that falls for consideration is as to whether the 2nd deceased, who was murdered, is to be considered as a public servant on duty or not? 13. Even if it is accepted that the second deceased is public servant, still it cannot be said that the petitioner is not entitled for the remission for the reason that the words used in clause (iv) of Para 4 as ‘prisoners convicted of murder of public servants on duty’. When he is a public servant and he was attacked while discharging his official duties and on account of the said attack, he dies, then only, the guidelines under clause (iv) of Para 4 will come into operation. But, It is not known as to whether the 2nd deceased at the relevant point of time was discharging his duties or not? From the charge sheet filed by the prosecution and the evidence let in during the course of trial, nowhere it came on record that the 2nd deceased, who was attacked by the petitioner herein, was on duty at the relevant point of time. It is only when a public servant is on duty, he is attacked by the accused and is convicted and sentenced to life imprisonment, the said accused is not entitled to the said special remission. 14. For the aforesaid reasons, this Court is of the view that the respondents have themselves interpreted the said provisions and refused to grant special remissions to the petitioner. In fact, the petitioner also stands in the same footing as that of A-2 to A-4, who are released pursuant to the grant of special remissions. Therefore, the respondents ought to have granted the special remissions to the petitioner also. 15. Accordingly, the Writ Petition is allowed at the stage of admission and the respondents are hereby directed to release the petitioner-Pinjari Pandlapuram Pedda Hussain Saheb, S/o. Pullanna, forthwith, if his presence is no more required in connection with any other crime or case. There shall be no order as to costs. ______________________ 8th December 2009 Note: Mark the L.R. copy. B/o. KVR [1] 1987 CRI.L.J.549 [2] AIR 2000 S.C. 937