S A Rasheed vs Ravi Gupta
2022 Latest Caselaw 573 Tel

              HON'BLE SRI JUSTICE K. LAKSHMAN

                 CONTEMPT CASE No.909 OF 2021

ORDER:

This Contempt Case is filed to punish the respondents for non-

implementation of the orders dated 01.06.2021 in W.P. No.19525

willfully and deliberately.

2. The son of the Life-Convict No.3893 - Mr. S.K. Zakaria had

filed a writ petition vide W.P. No.19525 of 2020 challenging the

rejection Memo No.9439/Ser.III/A2/2019, dated 26.09.2019, and for a

consequential direction to respondent No.1 therein to consider the case of

his father for premature release as per policy framed vide

G.O.Ms.No.195, dated 30.06.1995.

i) This Court vide a common order dated 01.06.2021 in W.P.

No.20421 of 2019 and batch, referring to various judgments of the

Hon'ble Supreme Court and this Court, G.O.Ms.No.16, Home (Legal)

Department, dated 17.02.2016 and also the counter filed by the

respondents, allowed the said batch of writ petition and set aside the

rejection memo dated 26.09.2019. Respondent No.1 therein was directed

to re-consider the representation dated 24.12.2016 submitted by the

petitioner on behalf of the life-convict No.3893 within a period of four

(04) weeks from the date of receipt of a copy of the said order, strictly in

accordance with the relevant guidelines issued by respondent No.1 in

G.O.Ms.No.30, dated 26.09.2020, which is in force as on that date.

Respondent No.1 shall consider the actual sentence and total sentence

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completed by the life-convict and the principle laid down by the Apex

Court and other High Courts in the judgments mentioned therein, and

also the remand period and remission, failing which, it would be viewed

seriously. Respondent No.1 was further directed to consider the

directions issued by the Apex Court in RE: CONTAGION OF COVID

19 VIRUS IN PRISONS1 and the Division Bench of this Court vide

order dated 14.09.2020 in W.P (PIL) No.164 of 2020 due to the present

COVID-19 pandemic situation.

3. Paragraph Nos.9, 13, 14, 15 and 16 of the said common order

01.06.2021 are relevant for the purpose of present case and the same are

extracted below.

"......

xii) It is also trite to note that in another proceeding, dated 02.02.2017, while forwarding the proposal of the Superintendent, Prisoners Agricultural Colony, Cherlapalli, requested the Director General of Prisons and Correctional Services, Telangana State, Hyderabad to consider the case of life-convict sympathetically and on humanitarian grounds for premature release. But, the said facts were not considered by respondent No.1 in the impugned proceedings. The request of the life-convict was rejected by respondent No.1 on the ground that there is prohibition of Clause (xv) in para 4 and para 5 of the G.O.Ms.No.16, dated 17.02.2016. In view of the same, clause (xv) of para 4 and para 5 of the said G.O.Ms.No.16 dated 17.02.2016 is extracted as under:

. Suo Motu Writ Petition (C) No.1 of 2020, dated 07.05.2021

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"(xv) of para-4: Prisoners convicted of murder of Public Servants while performing duty."

Para-5: The cases of prisoners who are convicted for life, along with offences under the following provisions of Law, shall not be subject to the conditions at para-4 above and shall be considered for grant of remission by the Government after undergoing the periods of sentences as on 26.01.2016 as specified:

(a)......

(b)......"

xiii) In the counter affidavit, it is stated that the incident of murder of the public servant had taken place at 9.30 P.M. and the deceased was a public servant i.e., Deputy Secretary, Andhra Pradesh Wakf Board. It is relevant to note that in the counter, it is stated that Mohd. Mujib Ahamed, at the time of his premature release, there was no specific clause to restrict for release of killing of public servants in G.O.Ms.No.196. With regard to Raghavender Reddy, convict No.8715, Mayank Bohra, Md. Akbruddin and Md. Zakir Hussain, Convict No.209, were released, even they were involved in killing of public servants, the relevant public servants were not on duty when the incident took place. Hence, they were considered as they were reached eligibility criteria in respect of premature release G.O.Ms.No.38, dated 28.03.2016 and guidelines issued by the State Government therein.

xiv) As stated above, in the present case also, the deceased was a Deputy Secretary, A.P. State Wakf Board and the incident had taken place at 9.30 P.M. Thus, the deceased was not on duty at the time of incident. The said fact was not considered by respondent No.1 in the impugned rejection memo.

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xv) As discussed supra, the Apex Court in Jagdish8 has held that remission policy as on the date of conviction of a life-convict is applicable. In Laxman Naskar19 and Satish @ Sabbe413 the Apex Court held that three factors should be considered viz., (i) antecedents; (ii) conduct of the lifers during incarceration; and (iii) likelihood to abstain from crime.

xvi) Admittedly, in the present case, respondent No.1 has not considered the representation dated 24.12.2016 submitted by the life-convict in terms of the order dated 19.12.2016 in W.P.No.27105 of 2016 within one month from the date of receipt of a copy of the said order. There is no explanation, much plausible explanation by respondent No.1 for abnormal delay caused in considering the said representation. In the impugned rejection memo, there is no consideration of the principle laid down by the Apex Court in Jagdish8, Laxman Naskar19 and Satish @ Sabbe413. There is no consideration that the incident had taken place at 9.30 P.M. and, therefore, the deceased was not discharging his public duties at the time of incident as was considered in the cases of other life-convicts i.e., Mohd.Mujib Ahamed, Raghavender Reddy, convict No.8715, Mayank Bohra, Md. Akbruddin and Md. Zakir Hussain, Convict No.209. There is no consideration of antecedents and good behavior of the life-convict as recommended by the District Probation Officer, Grade-I, Ranga Reddy District and also the Superintendent of Jails, Cherlapally and the Deputy Inspector General of Prisons, Hyderabad Range in the proceedings dated 25.01.2017 and 02.02.2017 respectively. There is no consideration of educational

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qualifications acquired by the life-convict during serving out his sentence as held by the Apex Court in The Home Secretary (Prison) v. H. Nilofer Nisha2. Thus, there is discrimination in considering the benefit of remission by respondent No.1 in respect of life-convict.

xvii) It is relevant to mention that in the said judgment, the Apex Court directed the life- convicts to be released in exercise of its power under Article -142 of the Constitution of India, whereas, such power is not conferred on the High Court. In Zahid Hussein v. State of West Bengal3 the Apex Court held that conduct of prisoners while undergoing sentences has to be considered. For recommending premature release, conduct of life-convict while in Jail is an important factor to be considered as to whether they have lost their potentiality in committing crime due to long period of detention. The views of the witnesses, who were examined during trial and the people of the locality cannot determine whether petitioners would be a danger to the locality, if released prematurely. The said aspect has to be considered keeping in view the conduct of the Petitioners therein during the period they were undergoing sentence. Age alone cannot be a factor while considering whether the petitioners have still potentiality of committing crime or not as it will depend on changes in mental attitude during incarceration.

xviii) As discussed supra, there is specific mention in the recommendation that the conduct of the life- convict is satisfactory and he is also maintaining good

. Crl.Appeal No.144 of 2020 & batch decided on 23.01.2020

. (2001) 3 SCC 750

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relation with the family. Thus, the life-convict will fit into three factors mentioned above. The said fact was not considered by respondent No.1 in the impugned rejection memo.

xix) In Puli Ramadevi14 this Court at paragraph No.11, has categorically held that respondent No.1 can review the case of life-convict and scrutinize and ensure conformation of the eligibility conditions laid down in the remission policy as held by the Apex Court in Union of India v. V. Sriharan4 that life- convict cannot claim remission as a matter of right and that all that he can claim is a right that his case be considered. The decision whether remissions be granted or not is entirely left to the discretion of the authorities concerned, which discretion ought to be exercised in a manner known to law. The convict only has right to apply to competent authority and have his case considered in a fair and reasonable manner. Similar ratio was held by the Apex Court in Ashok Kumar Barik v. State of Orissa5.

xx) As discussed supra, there is no consideration of any of the principles laid down by the Apex Court in the judgments by respondent No.1 in the impugned proceedings dated 26.09.2019. Even respondent No.1 did not consider the order dated 19.12.2016 passed by this Court in W.P. No.27105 of 2016, wherein this Court ordered to consider the representation of the life-convict within a period of one month. There is no explanation, much less plausible explanation for abnormal delay in complying with the said order. There is no consideration of recommendations in the impugned proceedings. In view of the same, the

. (2016) 7 SCC 1

. (1998) 8 SCC 539

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impugned rejection memo is liable to be set aside and accordingly it is set aside.

            xxi)         Accordingly, W.P. No.19525 of 2020 is
           allowed        setting    aside        the   rejection     memo

No.9439/Ser.III/A2/2019 dated 26.09.2019. Further, respondent No.1 herein is directed to re-consider the representation dated 24.12.2016 submitted on behalf of the life-convict No.3893 within a period of four (04) weeks from the date of receipt of a copy of this order, strictly in accordance with the relevant guidelines issued by respondent No.1 in G.O.Ms.No.30 dated 26.09.2020, which is in force as on today. He shall consider the actual sentence and total sentence completed by the life-convict, and the principle laid down by the Apex Court and other High Courts in the judgments mentioned above and also the remand period and remission, failing which, it will be viewed seriously. It is further directed that respondent No.1 shall consider the directions issued by the Hon'ble Supreme Court in RE:

CONTAGION OF COVID 19 VIRUS IN PRISONS20 and Division Bench of this Court vide order dated 14.09.2020 in W.P. (PIL) No.164 of 2020 due to the present COVID-19 pandemic situation."

4. The learned counsel for the petitioner got issued a legal notice

dated 06.07.2021 to the respondents herewith with a request to comply

with the said order within one week. Despite receiving and

acknowledging the said notice, according to the learned counsel for the

petitioner, the respondents have not complied with the said order. Thus,

there is willful and deliberate violation of the order dated 01.06.2021 in

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W.P. No.19525 of 2020 and, therefore, the learned counsel for the

petitioner sought to punish the respondents.

5. Respondent No.1 has filed counter stating that the Government

after careful observation of the facts and in compliance of the orders of

the Hon'ble Supreme Court and this Court and keeping in view the facts

of the case, the Government has issued Memo No.6555/Ser.III/A2/2021-

4, dated 29.07.2021 stating that, the request of the convict prisoner

No.3893 is not in accordance with the premature release guidelines, since

he has not fulfilled the criteria fixed for consideration of his premature

release under the orders, G.O.Ms.No.30 Home (Services-III) Department,

dated 26.09.2020. The same was communicated to the Life Convict

Prisoner No.3893. Respondent No.1 has also filed Memo

No.9439/Ser.III/ A2/2019, dated 26.09.2019 and Memo No.6555/Ser.III/

A2/2021-4, dated 29.07.2021.

6. Respondent Nos.2 and 3 have also field counters on the same

lines. According to them, they have complied with the order under

contempt and rejected the case of the Lift Convict.

7. The petitioner herein has filed reply affidavits to the counters

filed by respondent Nos.1 and 2 and respondent No.3 also additional

affidavit, dated 08.08.2021 contending that the respondent authorities

willfully and deliberately violated the orders under contempt by

misrepresenting the orders passed by this Court.

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8. The learned counsel for the petitioner has also placed reliance

on the order dated 11.02.2010 in W.P. No.2255 of 2010, wherein the

erstwhile High Court of Andhra Pradesh at Hyderabad has considered

that when once the Court holds that the deceased was not a public servant

on duty, the convicted prisoners 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.

9. The learned counsel for the petitioner would further submit that

the deceased is not a public servant at the time of incident and there is

categorical finding by this Court in the order dated 01.06.2021 in W.P.

No.19525 of 2020. According to her, the respondents have rejected the

case of the life convict on the very same grounds that were mentioned in

the memo dated 26.09.2019. Vide common order dated 01.06.2021 in

W.P. No.19525 of 2020, this Court has set aside the memo dated

26.09.2019 and gave certain directives to the respondents which they

have not complied with and on the very same grounds, they have rejected

the case of the life convict No.3893 vide memo dated 29.07.2021.

Therefore, it is a clear case of willful and deliberate violation of the order

under contempt.

10. It is relevant to note that respondent No.1 has filed additional

counters on 21.09.2021 and 10.11.2021. In the said additional counter

affidavit dated 10.11.2021, respondent No.1 has stated that in compliance

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of the orders of this Court dated 01.06.2021, the case of the Convict

Prisoner No.3893 has been reviewed on 13.10.2021 along with the other

convict prisoners, who are also convicted in the same Criminal Case

No.112 of 1997, dated 24.01.2003, by placing before the Screening

Committee constituted vide G.O.Ms.No.30, Home (Ser.III) Department,

dated 26.09.2020, considering the Triple Factors of (i) antecedents, (ii)

conduct of lifers during incarceration and iii) likelihood to abstain from

crime and reconsidered the case and recommended for their premature

release. It is further stated that as per the powers vested under Article -

161 of the Constitution of India, the Governor of the State shall have the

power to grant remission to any convicted prisoner. Based on the

recommendations of the Screening Committee, the proposal has been

circulated for consideration and approval for grant of Special Remission

and to release the Convict Prisoner No.3893 and two others. With the

said submissions, he sought to close the contempt case.

11. The petitioner herein has filed reply to the said additional

counter affidavit narrating the sequence of events in the contempt case

and contended that the respondents are dragging on the proceedings, and

their acts and deeds would amount to contentious action. They have

willfully and deliberately flouted the orders of this Court, dated

01.06.2021 passed in W.P. No.19525 of 2021 and, therefore, they are

liable for punishment. The learned counsel for the petitioner has placed

reliance on the judgment of the Apex Court.

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12. The learned government Pleader for Home referring to the

contents of the affidavit would submit that the case of the life convict

was recommended by the Screening Committee for granting remission

and file is with the Governor, and it is for the Governor to consider the

same in terms of Article - 161 of the Constitution of India. Referring to

G.O.Rt.No.1331, dated 10.08.2021 and the letter addressed by the

Principal Secretary to Government, Home (Ser.III) Department dated

27.09.221, to the Government, learned Government Pleader for Home

would submit that the respondents have already granted parole to the life

convict. Therefore, according to him, there is no violation of the order

dated 01.06.2021, much less willful and deliberate violation by the

respondents. According to him, the respondents have complied with the

orders dated 01.06.2021 in W.P. No.19525 of 2020.

13. As stated above, respondent No.1 vide Memo dated

26.09.2019 rejected the request of the life convict for premature release

in terms of the guidelines issued in G.O.Ms.No.16, Home (Legal)

Department, dated 17.02.2016 on the ground of prohibition as per Clause

(XV) of Para (4) and Para (5) of the said G.O. The said rejection memo

was under challenge in W.P. No.19525 of 2020. This Court vide

common order dated 01.06.2021, recorded the contention of the

respondents in the counter affidavit and held that the deceased was a

Deputy Secretary of Andhra Pradesh State Wakf Board and the incident

took place at 9.30 p.m. on 09.11.1992. The life convict was not on duty

at the time of incident. The said fact was not considered by the

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respondents therein in the impugned rejection memo. There is a finding

that the life-convict had submitted a representation dated 24.12.2016 in

terms of the order dated 19.12.2016 in W.P. No.27105 of 2016 within a

period of one month. There is no explanation, much less plausible

explanation by respondent No.1 for abnormal delay caused in

considering the said representation. In the impugned rejection memo,

there is no consideration of the principle laid down by the Hon'ble Apex

Court in State of Haryana v. Jagdish and Harpal6; Satish @ Sabbe v.

The State of Uttar Pradesh7 and Lxman Naskar v. Union of India8.

14. In view of the above said discussion, this Court has set aside

the rejection memo dated 26.09.2019 and directed the respondents to

reconsider the representation dated 24.12.2016 within a period of four

(04) weeks from the date of receipt of a copy of the said order. This

Court has also directed that if respondent No.1 fails to consider the

principle laid down by the Apex Court and other High Courts, it would

be viewed seriously. The respondents have not complied with the said

order. Therefore, the petitioner got issued a legal notice on 06.07.2021 to

the respondents with a request to comply with the said order. Thereafter,

respondent No.1 vide memo No.6555/Ser.III/A2/2021-4, dated

29.07.2021 rejected the request of the life convict stating that he has not

fulfilled the guidelines issued in G.O.Ms.No.30, dated 26.09.2020 on the

ground that the life convict has not fulfilled the criteria fixed under the

remission orders.

. (2010) 4 SCC 216

. SLP (Crl.) No.7369 of 2019, decided on 30.09.2020

. (2000) 2 SCC 595

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15. Perusal of the memos dated 26.09.2019 and 29.07.2021 would

reveal that respondent No.1 has rejected the request of the life convict on

the very same grounds. There is no consideration of the common order

passed by this Court dated 01.06.2021 in W.P. No.19525 of 2020 in the

rejection memo dated 29.07.2021. At the cost of repetition, it is relevant

to note that this Court has specifically directed respondent No.1 to

consider the aspect that the deceased, the then Deputy Secretary of

Andhra Pradesh State Wakf Board and the incident had taken place at

9.30 p.m. and that he was not on duty at the time of accident. Therefore,

this Court has directed respondent No.1 to consider the said aspect and

the counter and also the principle laid down by the Apex Court in the

judgments mentioned above. There is no consideration of the directives

of this Court in the common order dated 01.06.2021 by respondent No.1

in the memo dated 29.07.2021.

16. It is relevant to note that after hearing the learned counsel for

the petitioner and the learned Government Pleader for Home appearing

on behalf of the respondents, this Court has reserved the Contempt Case

on 29.09.2021, and the same was listed for further hearing at the request

of the learned counsel for the petitioner on 05.11.2021 and at the request

of learned Government Pleader to file additional counter affidavit, it was

adjourned to 12.11.2021.

17. On 10.11.2021, respondent No.1 has filed additional counter

affidavit stating that in compliance of the order dated 01.06.2021, the

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case of the life convict prisoner has been reviewed on 13.10.2021 along

with other convict prisoners, who are also convicted in the same Criminal

Case No.112 of 1997, dated 24.01.2003 by placing before the Screening

Committee constituted vide G.O.Ms.No.30, Home (Ser.III) Department,

dated 26.09.2020, considering the aforesaid triple factors. Thereafter, the

case of the life convict was recommended for premature release. The

same is pending with the Governor, and power is vested with the

Governor under Article - 161 of the Constitution of India, to grant

remission. Based on the recommendations of the Screening Committee,

the proposal has been circulated for consideration and approval for grant

of Special Remission and to release the convict prisoner No.3893 and

two others.

18. It is relevant to note that this Court has directed respondent

No.1 to reconsider the representation dated 24.12.2016 submitted on

behalf of the life convict within a period of four (04) weeks from the date

of receipt of a copy of the said order, strictly in accordance with the

relevant guidelines issued by respondent No.1 in G.O.Ms.No.30 dated

26.09.2020, failing which, it would be viewed seriously. Respondent

No.1 has rejected the said representation vide memo dated 29.07.2021 on

the very same ground on which he had rejected the request of the life

convict vide memo dated 26.09.2019 which was set aside by this Court

vide common order dated 01.06.2021 in W.P. No.19525 of 2020. There

is no consideration of the directives issued by this Court in the order

dated 01.06.2021. There is no consideration of the fact that the deceased

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in the present case was Deputy Secretary, Andhra Pradesh Wakf Board

and the incident had taken place at 9.30 p.m. and, thus the deceased was

not on duty at the time of accident and, therefore, this Court directed

respondent No.1 to consider the said aspect and also the principle laid

down by the Apex Court referred above. There is no consideration of the

order passed by this Court under contempt.

19. As discussed above, in the earlier round of litigation, this

Court by order dated 19.12.2016 in W.P. No.27105 of 2016 directed

respondent No.1 to consider the representation dated 24.12.2016 within

one month from the date of receipt of copy of the said order. There is no

explanation, much less plausible explanation by respondent No.1 for the

said delay in considering the said representation.

20. Now, vide order dated 01.06.2021, this Court directed

respondent No.1 to reconsider the representation submitted by the

petitioner within four weeks from the date of receipt of copy of the order.

Instead of complying with the said order, respondent No.1 has rejected

the representation of the petitioner vide memo dated 29.07.2021 on the

same grounds. In the counter filed by respondent No.1, dated 11.08.2021

and additional counter affidavit filed by respondent No.1 dated

29.09.2021, it is specifically contended by him that the Government after

careful observation of the facts and in compliance of the orders of the

Hon'ble Supreme Court and this Court and keeping in view the facts of

the case, the Government has issued Memo No.6555/Ser.III/A2/2021-4,

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dated 29.07.2021 stating that the request of the convict prisoner No.3893

i.e., S.M. Zakriah alias Zakaria, son of Nabi of Prisoner's Agricultural

Colony, Cherlapalli, is not in accordance with the premature release

guidelines. He has not fulfilled the criteria fixed for consideration of his

premature release under the orders, G.O.Ms.No.30, Home (Services-III)

Department dated 26.09.2020, the same was communicated to the life

convict on 30.07.2021. In the additional counter affidavit filed on

20.09.2021, respondent No.1 has reiterated the same. Thus, respondent

No.1 has not considered the representation submitted by the petitioner in

terms of the order passed by this Court dated 01.06.2021 in W.P.

No.19525 of 2020 and batch. There is no consideration of the said order.

At the cost of repetition, respondent No.1 has rejected the representation

vide memo dated 29.07.2021 on the very same ground without

considering the order dated 01.06.2021 in W.P. No.19525 of 2020 and

batch. He has not even tendered any apology. However, in the

additional counter affidavit filed by him dated 20.09.2021, he has stated

that in any event if this Court comes to a conclusion that any act of

respondent No.1 amounts to contempt of orders of this Court, the said

action is an inadvertent act, for which he offered unconditional apology.

Thus, there is willful and deliberate violation of the order dated

01.06.2021 passed by this Court in W.P. No.19525 of 2020 and batch.

He has not considered the representation submitted by the life convict

within the time granted by this Court in the first round of litigation and

also in the second round of litigation. He has scant respect to the orders

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of this Court. The said attitude of respondent No.1 is not appreciable.

He has not tendered apology to this Court for the delay and also for non-

compliance of the orders passed by this Court at the first instance within

the time stipulated by this Court.

21. In the additional counter affidavit filed by respondent No.1 on

10.11.2021, it has stated that the orders of this Court dated 01.06.2021

has been reviewed on 13.10.2021 along with other convict prisoners and

the Screening Committee has reconsidered the case and recommended

for their premature release. However, he has not filed copy of the said

recommendation. According to him, as per the powers vested under

Article - 161 of the Constitution of India, the Governor of the State shall

have power to grant remission to any convicted prisoner. Therefore, it is

for the Governor to take a decision on the said recommendation of the

Screening Committee and approve the same. Even in the said additional

counter affidavit, respondent No.1 has not tendered any apology for

violation of the order of this Court dated 01.06.2021 at the first instance

and for the delay caused in complying with the said order under

contempt. In the said order, it is specifically mentioned that if

respondent No.1 fails to consider the representation within the stipulated

time, it will be viewed seriously. Even then, he has not considered the

same within the time and in terms of the order. Thus, respondent No.1 is

having scant respect to the orders of this Court. Therefore, respondent

No.1 is hereby warned not to repeat the same in future. However, it is

stated that the orders of this Court dated 01.06.2021 has been reviewed

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on 13.10.2021, along with other convict prisoners and the Screening

Committee has considered the case of the petitioner and recommended

for his premature release. The same is pending with the Governor, who

has to take decision under Article -161 of the Constitution of India. It is

relevant to note that power under Article - 161 of the Constitution of

India is a statutory power. Therefore, respondent No.1 has considered

the case of the petitioner and recommended for premature release, though

there is delay and though there is no explanation for the said delay, this

Contempt Case can be closed.

22. As far as respondent Nos.2 and 3 being the then Director

General of Prisons and Correctional Services and the then Superintendent

of the Central Prison respectively, in the impugned order dated

01.06.2021, there is no direction to them and they have no role in the

entire matter, as such, contempt does not attract against them.

23. In view of the above discussion, the present Contempt Case is

closed.

As a sequel thereto, miscellaneous applications, if any, pending in

the Contempt Case stand closed.

_________________ K. LAKSHMAN, J 11th February, 2022 Mgr