THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION NO : 2255 of 2010 DATED:11-02-2010 Between: T.Sampath Kumar. ..... PETITIONER AND The Government of Andhra Pradesh, Rep. by its Principal Secretary, Home (prisons) Department, Secretariat, Hyderabad & 2 others. .....RESPONDENT ORDER: This writ petition is filed seeking a Writ of Mandamus declaring the action of the 1st respondent in not releasing the following convicts: 1. Takkidi Ram Reddy-A2, Convict No.4665, Central Prison, Cherlapalli, Ranga Reddy District. 2. Mothe Narayana Reddy-A4, Convict No.3553, Prisoners Agricultural colony, Cherlapalli, Ranga Reddy District. 3. Gunukula Malla Reddy-A5, Convict No.3554, Prisoners Agricultural colony, Cherlapalli, Ranga Reddy District. 4. Edla Bhoom Reddy-A9, Convict No.3868, Prisoners Agricultural colony, Cherlapalli, Ranga Reddy District. 2. Brief facts of the case are that the father of the petitioner is Accused No.2 and the other convicts herein are A4, A5 and A9 in S.C.No.552 of 1992 on the file of the I Additional Sessions Judge, Karimnagar and the trial Court by its judgment dated 22.09.1994 convicted and sentenced 21 accused, including the convicts herein, to undergo imprisonment for life for the offences under Sections 148, 120(B), 457, 452, 326, 307 r/w 149 and 302 IPC. Aggrieved by the said conviction and sentence, the accused preferred Crl.A.No.917 of 1994 and this Court by its judgment dated 19.08.1995 allowed the said appeal in part acquitting the accused, upon which the State moved the apex Court by way of Crl.A.No.458 of 1996, and the same was allowed, convicting and sentencing the convicts herein for life imprisonment under Section 302 IPC. 3. According to the petitioner, his father-A2 and A4, A5 and A9 have undergone the actual sentence of 7 years and with all remissions, they have undergone the total sentence of 10 years. 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 convicts herein, who are A2, A4, A5 and A9, 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 convicts herein were not convict of murder of public servant on duty. 4. Learned Government Pleader, on instructions, 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. 5. Heard learned Counsel for the petitioner and the learned Government Pleader for Home appearing for the respondents. 6. 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 GO. 7. 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, read 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)……………. 8. 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 have 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. 9. As per the charge sheet allegations, the deceased, Gankidi Mohan Reddy, was working as Sarpanch of Thimmapur village, Vajrakarur Mandal since 1981, and when he was in his house on the intervening night of 10/11-08- 1990, the accused herein and others beat the deceased with sticks, crowbars and other deadly weapons and caused injuries, as a result the deceased died while undergoing treatment in the hospital. 10. 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) of Para-4 of the said G.O. 11. Now the question that falls for consideration is as to whether the deceased i.e., Sarpanch of Thimmapur village, Vajrakarur Mandal, do come within the ambit of public servant on duty or not? 12. 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 factions between the families of the accused and the deceased and the alleged incident took place on the intervening night of 10/11-08-1990 when the deceased was at home. 13. 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 holds that the deceased was not a public servant on duty, the convicted prisoners i.e., A-2, A4, A5 and A9 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. 14. For the aforesaid reasons, this Court is of the view that the convicted prisoners i.e., A-2, A4, A5 and A9 are entitled to the benefit provided for in the said G.O.Ms.No.338 dated 24.07.2009. 15. In the result, the Writ Petition is allowed and the respondent No.2 is hereby directed to release the Convict No.4665 by name Takkidi Ram Reddy, lodged in Central Prison, Cherlapalli, Ranga Reddy District; and the respondent No.3 is hereby directed to release the Convict No.3553 by name Mothe Narayana Reddy, lodged in Prisoners Agricultural colony, Cherlapalli, Ranga Reddy District; Convict No.3554 by name Gunukula Malla Reddy, lodged in Prisoners Agricultural colony, Cherlapalli, Ranga Reddy District and Convict No.3868 by name Edla Bhoom Reddy, lodged in Prisoners Agricultural colony, 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 11th February, 2010 Tsy