S.Ramesh vs The State Of Andhra Pradesh
2021 Latest Caselaw 429 AP

         THE HON'BLE SRI JUSTICE JOYMALYA BAGCHI

                                AND

         THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

                       W.P. No. 22488 of 2020

ORDER :(Per Hon'ble Sri Justice C.Praveen Kumar)


1.        After dictating the order in court on 05.01.2021, it has

been brought to our notice that a writ of Habeas Corpus

cannot be issued in matters of this nature, in view of the

judgments of the Hon'ble Supreme Court and having regard

to the judgments of the Apex Court in Pyare Lal v. State

of Haryana1 and Ashok Kumar v. Union of India (UOI)

and Ors.2, the body constituted has no power to release the

convict and that the Authority ought to have placed the

matter before the Governor for his release, if he is otherwise

entitled to. Hence, the matter is posted under the caption,

"for being mentioned".


2.        Heard both sides and perused the record.


3.        In order to appreciate the rival arguments advanced, we

deem it appropriate to pass a composite order incorporating

the contents of the order passed earlier to the extent

necessary.




1
    (2020) 8 SCC 680
2
    (1991) 3 SCC 498
                                        2




4.    The Writ Petition was filed seeking issuance of writ of

Habeas Corpus or any other appropriate writ, order or

direction to produce Mekala Mallikarjuna, S/o Subramanyam

(CT No. 4459) and Sannikanti @ Saniganti Srinu @ Srinivasu

(CT No. 4460), who are undergoing imprisonment for life in

Central Jail, Anantapur, before this Court and set them at

liberty after declaring the action of respondents in not giving

special remission in their favour in accordance with

G.O.Ms.No.6, Home (Paroles) Department, dated 9.1.2019, on

par with similarly situated convicted prisoners, as illegal and

arbitrary.

5. Brief facts leading to the filing of this writ petition are

that vide judgment dated 02.11.2009 in S.C.No. 39 of 2008

on the file of the III Additional District & Sessions Judge,

Nellore, Mekala Mallikarjuna, S/o Subramanyam, who is

accused in the said Sessions Case, was convicted for the

offence punishable under Section 302 IPC and was sentenced

to suffer imprisonment for life and to pay a fine of Rs.500/-,

in default to undergo rigorous imprisonment for one month.

The other accused, Sannikanti @ Saniganti Srinu @

Srinivasu, was convicted under Section 302 I.P.C. in S.C. No.

119 of 2009 by the Sessions Judge, Mahila Court,

Vijayawada, on 26.03.2010 and was sentenced to suffer

imprisonment for life and to pay fine of Rs.1,000/- in default

to suffer simple imprisonment for six months. Aggrieved by

the said conviction and sentence, the accused preferred

Criminal Appeals before the erstwhile combined High Court

of Andhra Pradesh. By its judgment, a Division Bench of the

combined High Court confirmed the conviction and sentence

imposed upon the accused in both the sessions cases for the

offence punishable under Section 302 I.P.C.

6. While things stood thus, the Government of Andhra

Pradesh issued G.O.Ms.No.6, Home (Paroles) Department,

dated 09.01.2019, granting special remission to prisoners

convicted and sentenced to life imprisonment, on the

occasion of Republic Day, laying down certain guidelines to

be followed while considering their cases for grant of

remission. Clause 7 of the said G.O. postulates certain

categories of convicted prisoners, referred to in sub-clauses

(a) to (d), whose cases can be considered for grant of special

remission. It further states that the guidelines would be

applicable to life convicts undergoing life sentence,

maintaining good behaviour and further subject to the

conditions specified in para 8 of the said G.O. The petitioners

point out to clause 7(b) of the said G.O., which states that

cases of convicted male prisoners sentenced to imprisonment

for life, including those governed by Section 433-A of the

Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and

who have undergone actual sentence of 07 years, including

remand period, and total sentence of 10 years, including

remission, as on 26.01.2019 shall be considered for release.

The petitioners states that the convict prisoners, namely,

Mekala Mallikarjuna, S/o Subramanyam (CT No. 4459) and

Sannikanti @ Saniganti Srinu @ Srinivasu (CT No. 4460),

have undergone actual sentence of more than seven [07]

years including remand period and served total sentence of

10 years including remission as on 26.01.2019, and

therefore, fulfills the requirement of clause 7(b) of

G.O.Ms.No.6 dated 09.01.2019 and as such, eligible for grant

of special remission in terms of the said G.O. However, their

case was not recommended to the Government for grant of

special remission, while similarly situated convict prisoners

were recommended and granted the said benefit on the

occasion of Republic Day. Hence, the present writ petition

came to be filed seeking the aforesaid relief.

7. The 5th respondent-Superintendent, Prisoners

Agricultural Colony, Anantapuramu, filed a counter-affidavit

disputing the averments made in the affidavit filed in support

of the writ petition except to the extent admitted by him. It is

inter alia stated that the 4th respondent-Director General of

Prisons and Correctional Services, Andhra Pradesh,

submitted a list of life convict prisoners eligible for special

remission in terms of G.O.Ms.No.6 dated 09.01.2019,

including the names of the convicted prisoners in the present

case. The Standing Committee, under the Chairmanship of

the Principal Secretary to Government, Home Department,

reviewed the cases of each prisoner and recommended cases

of 33 life convicted prisoners for grant of special remission,

while deferring the cases of remaining life convicted

prisoners, including the prisoners in the present case, to be

considered on the next occasion. The Committee has not

recommended the name of the convict prisoners on the

ground that the quantum of actual sentence served by them

is less when compared to the gravity of offence committed by

them. In pursuance of the recommendations of the Standing

Committee, the Government issued orders in G.O.Ms.No.46,

Home (Paroles) Department, dated 25.02.2019, granting

special remission to 32 life convicted prisoners, subject to

certain conditions and also subject to final orders to be

passed by the Hon'ble Supreme Court while answering the

referral order in WP (Crl.).No.48 of 2014 between Union of

India Vs. V.Sriharan @ Murugan and others. It is further

stated that the convict prisoners herein cannot claim the

benefit of remission on par with those who were granted such

benefit under the G.O., as each case of the prisoner is

distinct and different and the Standing Committee considered

each of the prisoner's case independently, taking into

consideration various factors, such as, age of prisoners,

gruesomeness of the offence, 'modus operandi' used by the

convict in the commission of the offence, the social factor etc.

Hence, prays to dismiss the writ petition.

8. In order to appreciate the rival contentions, it would be

appropriate to refer to Clause 7(b) of G.O.Ms.No.6, dated

09.01.2019, which reads as under:

"7. Accordingly, relaxing the orders issued in the reference 1st read above, the Government hereby issues the following guidelines giving one time exemption to consider special remission in the cases of following categories of prisoners who have been convicted by Civil Courts of criminal jurisdiction. These guidelines will be applicable to the following life convicts undergoing life sentence, keeping in view of their good behavior, subject to conditions as specified at para-8 below:-

a) xxxx

b) Cases of convicted male prisoners sentenced to imprisonment for life including those governed by Section 433-A of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and who have undergone an actual sentence of 7 years including remand period and total sentence of 10 years including remission as on 26.01.2019 shall be considered for release."

As per the above clause, a convict prisoner who has

undergone an actual sentence of 07 years, including remand

period, and total sentence of 10 years, including remission,

as on 26.01.2019 shall be considered for release. The

nominal rolls of the convict prisoners, namely, Mekala

Mallikarjuna, S/o Subramanyam (CT No. 4459) and

Sannikanti @ Saniganti Srinu @ Srinivasu (CT No. 4460), are

filed along with the counter-affidavit. A perusal of the same

would indicate that Mekala Mallikarjuna S/o.,Subramanyam

(CT No. 4459) has undergone actual sentence of 09 years 02

months 24 days and served total sentence of 12 years 06

months 09 days, including remand and remission, as on

26.01.2019. On the other hand, Sannikanti @ Saniganti

Srinu @ Srinivasu (CT No. 4460) has undergone actual

sentence of 08 years 10 months, and served total sentence of

13 years 05 months 22 days, including remand and

remission, as on 26.01.2019. Thus, the convict prisoners, in

the instant case, are eligible to be considered for special

remission as per clause 7(b) of G.O.Ms.No.6. Though their

cases were recommended by the fourth respondent for grant

of remission, but the Standing Committee under the

Chairmanship of the Principal Secretary, deferred their cases

to be reviewed on the next occasion when such special

remission would be proposed, on the ground that the

quantum of actual sentence served by them is less when

compared to the gravity of the offence. We are of the opinion

that the reason on which the cases of the convict prisoners

have been deferred has no basis. It is to be noted that

G.O.Ms.No.6 dated 09.01.2019 lays down certain guidelines

to be followed while considering the cases of convict prisoners

for grant of remission. The prisoners in the instant case

would fall under the category specified in sub-clause (b) of

clause 7 in the said G.O. When the G.O. formulates certain

guidelines and specifies certain categories of prisoners to be

released, it is to be seen whether the cases of the prisoners,

whose names were recommended, would fall under any of

such categories. If they satisfy the requirement in terms of

the said guidelines, they would be entitled for the relief. It is

not open to the authorities to come up with a new ground,

namely, that the quantum of actual sentence served by the

convict prisoner is less when compared to the gravity of the

offence, for rejecting their cases for grant of special

remission, when such a condition never formed part of the

G.O. The respondents are not conferred with any authority

to read something into the G.O., which is not there.

From the above it is clear that the Standing Committee erred

in rejecting the cases of the petitioners for release.

9. The question now is, whether the petitioners can be

ordered to be released by issuing a writ of Habeas Corpus.

We are afraid that such a relief, namely, releasing the

convicts, cannot be ordered in this petition, but, however, as

observed earlier, the Standing Committee totally erred in

rejecting their request for release. In view of the

observation/ratio laid down by the Apex Court in Pyare Lal's

case (supra) and Ashok Kumar's case (supra), we hereby

direct the Standing Committee or the Authority concerned to

forthwith send the recommendations along with material

concerned in terms of the order passed by this court in this

Writ Petition to the Hon'ble Governor, as early as possible,

preferably within a period of three months from today,

enabling him to exercise power under Article 161 of the

Constitution of India.

10. Accordingly, the Writ Petition is disposed of. No order

as to costs.

Consequently, miscellaneous petitions pending, if any,

shall stand closed.

______________________________ JUSTICE JOYMALYA BAGCHI

______________________________ JUSTICE C.PRAVEEN KUMAR

Date: 29.01.2021 skmr