HON’BLE SRI JUSTICE B.PRAKASH RAO AND HON’BLE SRI JUSTICE V.SURI APPA RAO Writ Appeal No.943 of 2010 Date: 11-3-2011 Between Manepalli Mohan Rao … Appellant/Petitioner and S.Suresh Kumar, I.A.S., Project Officer, R/o Rampa Chodavaram, East Godavari, (previously worked as Sub Divisional Magistrate, by the time impugned order passed by him), and 5 others … Respondents/Respondents HON’BLE SRI JUSTICE B.PRAKASH RAO AND HON’BLE SRI JUSTICE V.SURI APPA RAO Writ Appeal No.943 of 2010 Judgment: (per V.Suri Appa Rao, J.) This writ appeal is filed under Clause 15 of the Letters Patent against the order dated 08-12-2009 passed by a learned single Judge of this Court in W.P.No.24140 of 2005, whereby the learned single Judge dismissed the writ petition filed by the petitioner seeking to delete his name from the jail records as ‘convict prisoner’ and consequently directing the respondents herein to pay a compensation of Rs.1,00,000/-, who is responsible to treat the petitioner as ‘convict prisoner’ and serving rigorous imprisonment. 2. Brief averments of the petition are as follows: On 21-3-2004 at about 4.30 p.m., the Assistant Sub Inspector of Police, I Town, Law and Order Police Station, Rajahmundry received information about the galata created by the petitioner. He immediately rushed to the spot along with other Policemen and found the petitioner creating galata and indulging in the acts of violence and thereby causing breach of peace and annoyance to the public tranquility at Godavari Bund near Markandeya Swamy Temple, Rajahmundry. 3. On the basis of the report submitted by the Assistant Sub Inspector of Police, I Town, Law and Order Police Station, Rajahmundry, the 1st respsondent - Sub Divisional Magistrate, Rajahmundry passed an order under Section 110 of Cr.P.C., on 22-3- 2004 and directed the petitioner to execute a bond for Rs.5,000/- each with two sureties to keep good behaviour for one year as the activities of the petitioner may cause breach of peace and disturb public tranquility in the city. Subsequently, on 24-3-2004 the Sub Divisional Magistrate issued Warrant of Commitment against the petitioner under Section 122 of Cr.P.C., as the petitioner failed to comply with the order dated 22-3-2004. Accordingly, the petitioner was committed to the Central Prison, Rajahmundry for a period of one year or till the petitioner furnishes security as per the orders passed on 24-3-2004. The petitioner could furnish surety as per the order of the Sub Divisional Magistrate dated 22-3-2004 only after 3 months and that he was released after taking bonds from him and the sureties. Thereafter, the petitioner filed W.P.No.21245 of 2004 under Article 226 of the Constitution of India challenging the order dated 24-3-2004 passed by the Sub Divisional Magistrate, Rajahmundry. A learned single Judge of this Court allowed the said writ petition on 08- 4-2005 on the ground that the detention order passed by the Sub Divisional Magistrate is violative of the provisions of the Code of Criminal Procedure and Article 21 of the Constitution of India and also awarded compensation of Rs.10,000/- to the petitioner for his wrongful imprisonment on the basis of the order dated 24-3-2004. It was further ordered that out of Rs.10,000/-, Rs.5,000/- shall be paid to the petitioner and the balance shall be kept in a Fixed Deposit in a Nationalised Bank in the name of the petitioner by the 1st respondent for one year, within a period of 6 weeks from the date of receipt of a copy of that judgment. The said amount of Rs.5,000/- shall be retained by the 1st respondent for a period of one year. In the event of any cases being registered against the petitioner for the offences punishable with imprisonment exceeding one year in the meanwhile, the petitioner shall not be entitled for the amount covered by the F.D.R., and if no such cases are registered, the 1st respondent shall hand over the F.D.R to the petitioner on expiry of the period of one year. 4. Aggrieved by the said order, the petitioner filed Writ Appeal No.1424 of 2005. A Division Bench of this Court allowed the said writ appeal by judgment dated 08-8-2005 modifying the order passed by the learned single Judge to the extent that an amount of Rs.5,000/- shall be kept in F.D.R. The Division Bench further held that the petitioner is entitled for the whole of the compensation of Rs.10,000/-. 5. After disposal of the writ appeal, again the petitioner filed W.P.No.24140 of 2005 under Article 226 of the Constitution of India seeking to issue a Writ of mandamus declaring the action of the 2nd respondent treating the petitioner as Convict Prisoner No.5410 in pursuance of the impugned order passed by the Sub Divisional Magistrate, Rajahmundry under Section 122 of Cr.P.C., and for further direction to the 2nd respondent to delete from the jail records as ‘convict prisoner’ and also to pay compensation of Rs.1,00,000/- for treating him as ‘convict prisoner’. 6. After hearing, the learned single Judge of this Court by order dated 08-12-2009 passed the following order in the said writ petition: “It is not in dispute that the earlier order, which was passed against the petitioner, is by the authority competent under Chapter VIII of the Code of Criminal Procedure. In that view of the matter, I am of the opinion that the petitioner was rightly treated as the convict prisoner as per jail records.” 7. Aggrieved by the said order passed by the learned single Judge, the petitioner filed this writ appeal. 8. The learned counsel for the appellant submitted that the appellant was in jail due to the order passed by the 1st respondent and the same was set aside by the learned single Judge of this Court in W.P.No.21245 of 2004 dated 08-4-2005. Therefore, the period undergone by the appellant in the jail cannot be continued in the jail records as ‘convict prisoner’ and that the order passed by the learned single Judge insofar as holding that the appellant falls within the definition of ‘convict prisoner’ is not correct. 9. On the other hand, the learned Government Pleader submitted that the petitioner served the sentence as ‘convict prisoner’ as per the orders passed by the Sub Divisisonal Magistrate, Rajahmundry under the provisions of Sections 110 and 122 of Cr.P.C. Therefore, the writ appeal filed by the appellant is liable to be dismissed. 10. The point for consideration in this writ appeal is, whether the appellant can be treated as ‘convict prisoner’ in the jail records in pursuance of the order dated 24-3-2004 passed by the 1st respondent under the provisions of Section 122 of Cr.P.C. ? 11. The learned counsel for the petitioner vehemently argued that the detention order passed by the 1st respondent was set aside by the learned single Judge of this Court in W.P.No.21245 of 2004 dated 08-4-2005. The same has become final and the State did not prefer any appeal against the said order. 12. As per Prisons Act, 1894 “convicted criminal prisoner” means any criminal prisoner under sentence of Court or Court-martial, and includes a person detained in prison under the provisions of Chapter VIII of the Code of Criminal Procedure, 1882 (10 of 1882) or under the Prisoners Act, 1871 (5 of 1871). 13. The learned single Judge of this Court by the impugned order dated 08-12-2009 dismissed W.P.No.24140 of 2005 filed by the appellant only on the ground that the appellant was detained in prison as per the order passed by the 1st respondent, who is competent under Chapter VIII of the Code of Criminal Procedure, 1882. 14. Admittedly, W.P.No.21245 of 2004 filed by the petitioner challenging the order dated 24-3-2004 passed by the 1st respondent under Section 122 of Cr.P.C., was allowed by the learned single of this Court on 08-4-2005 holding that the 1st respondent passed the order without following the procedure contemplated under the Code of Criminal Procedure and also awarded compensation to the petitioner for his wrongful imprisonment. It is also an admitted fact that the State did not prefer any appeal against the said order in W.P.No.21245 of 2004 in which the order passed by the 1st respondent was set aside and compensation of Rs.10,000/- was awarded to the petitioner. 15. It is also an admitted fact that in the earlier W.P.No.21245 of 2004, the 1st respondent - Sub Divisional Magistrate, Rajahmundry, who passed the order dated 24-3-2004 under Section 122 of Cr.P.C., has filed Additional Counter Affidavit admitting that he passed the order without following the procedure as he was not properly guided by his subordinate staff of the office and he recently entered into the Indian Administrative Service. 16. Thus, the 1st respondent who passed the detention order against the petitioner under the provisions of Section 122 of Cr.P.C., himself really admitted in the Additional Counter Affidavit that he passed the order without holding specific enquiry as required under Sections 116 and 117 of Cr.P.C., and thereby committed a mistake in passing the said order. It is also an admitted fact that in pursuance of the order passed by the Sub Divisional Magistrate, Rajahmundry, the petitioner was detained in Central Prison, Rajahmundry for a period of 3 months. Thereafter, he was released after furnishing sureties. The appellant was not tried for any offence punishable under the provisions of the Indian Penal Code or any other laws nor was found guilty. When once the order dated 24-3-2004 passed by the Sub Divisional Magistrate, Rajahmundry was found illegal and violative of the provisions of the Code of Criminal Procedure, 1882 and Article 21 of the Constitution of India and when the petitioner was detained in Central Prison on the basis of the wrong order passed by the 1st respondent, which was later set aside by the learned single Judge of this Court, we are of the considered view that the petitioner cannot be treated as ‘convict prisoner’ as per the records maintained by the 2nd respondent. 17. So far as the compensation of Rs.1,00,000/- claimed by the petitioner is concerned, the learned single Judge of this Court has already awarded compensation of Rs.10,000/- in W.P.No.21245 of 2004 filed by the petitioner and the same was ordered to be paid to the petitioner as per the orders of the Division Bench of this Court in W.A.No.1424 of 2005. The 2nd respondent – Superintendent, Central Prison, Rajahmundry received the appellant as per the Warrant of Detention issued by the 1st respondent Sub Divisional Magistrate, Rajahmaundry dated 24-3-2004 and released the appellant as per the order passed by the 1st respondent and thus complied the orders passed by the 1st respondent. Therefore, the 2nd respondent is in no way responsible for the illegal detention of the petitioner in the jail and treating him as ‘convict prisoner’. The petitioner is, therefore, not entitled for any further compensation against the 2nd respondent. 18. For the aforesaid reasons, the writ appeal is allowed in part. The impugned order dated 08-12-2009 passed by the learned single Judge of this Court in W.P.No.24140 of 2005 is set aside. The 2nd respondent – Superintendent, Central Prison, Rajahamundry, East Godavari district is directed to delete the name of the appellant from the jail records as ‘convict prisoner’. _____________________ B.PRAKASH RAO, J. _____________________ V.SURI APPA RAO, J. 11th March, 2011. Ak HON’BLE SRI JUSTICE B.PRAKASH RAO AND HON’BLE SRI JUSTICE V.SURI APPA RAO Writ Appeal No.943 of 2010 (P.D. judgment of the Division Bench prepared by VSAR, J.) 11th March, 2011.