Telangana High Court

S A Rasheed vs State Of Telangana on 11 January, 2023

Bench: A.Abhishek Reddy, G.Anupama Chakravarthy

     THE HON'BLE SRI JUSTICE A. ABHISHEK REDDY
                                   and
     THE HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY


               WRIT PETITION No.43409 of 2022
ORDER:

This Writ Petition is filed seeking the following relief:

".... to issue a Writ of Habeas Corpus issuing directions to the Respondent Nos.1 to 3, directing them to comply, in earnest, orders passed in WP 19525/2020, CC 909/2021 and WP 18399/2021 and produce and release the petitioner's father SK Zakria (Life Convict No 3893) presently lodged in Prisoners' Agricultural Colony, Cherlapalli as the il- legal detention of the petitioner's father is detention sans sanction of law which is violative of Article 19(d) as well as the right under Article 21, of the Constitution of India, and pass such orders as this Honourable Court may deem fit and proper in the circumstances of the present case."

Learned counsel appearing on behalf of the petitioner has

stated that in spite of there being a positive direction from this

Hon'ble Court vide common order dated 01.06.2021 passed in

W.P. No.19525 of 2020 and also in the Contempt Case No.909

of 2021 dated 11.02.2021, the authorities did not pass

necessary orders to release the detenu even though he has

served more than 18 years of actual imprisonment and 24 years

including the remission period. After the closure of the

Contempt Case, the authorities vide memo dated 29.07.2021

have rejected the application for remission on erroneous ground

and therefore the petitioner was constrained to file another writ

petition being W.P. No.18399 of 2021 challenging the said

rejection order. It is further contended that a learned Single

Judge of this Court while elaborately dealing with the chequered

history of the case, vide order dated 28.07.2022, has held that

the power of remission has to be exercised by the State

Government and not by the Governor and further held that the

person who was murdered by the detenu cannot be said to be a

public servant for the purpose of granting of remission. That

the order dated 28.07.2022 passed by the learned Single Judge

in W.P. No.18399 of 2021 has become final and till date no

appeal has been preferred by the authorities concerned. That in

spite of the order in W.P. No.18399 of 2021 being passed on

28.07.2022, the detenu is still languishing in jail, even though

he has put in more than 18 years of actual sentence and 24

years including the remission period. That the act of the

authorities in not passing the order of remission is nothing but

an abuse of process of law. That in spite of the detenu being

eligible for remission even as per G.O.Ms.No.30 Home (Services-

III) Department, dated 26.09.2020, the authorities are not

passing necessary orders for release of the detenu. Learned

counsel has taken this Court through the relevant portion of the

G.O.Ms.No.30 dated 26.09.2020, more particularly clause 4 (b)

thereof, which reads as under:

"All 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 10 years including remand period and total sentence of 14 years including remission as on 02.10.2020 shall be release."

and has contended that the authorities concerned are

deliberately applying Rule 6 (iii)(a) to the case of detenu, which

rule is, in fact, not applicable to the case of the detenu as the

person who was murdered by the detenu is not a public servant

and that the deceased was not discharging any public duty at

the relevant point of time. However, the authorities are

deliberately taking the very same stand taken earlier by them in

the counter now filed in the present Writ Petition. That except

stating that the matter is pending before the Governor, the

authorities have not taken any steps to pass necessary orders to

release the detenu. Therefore, the detention of the detenu even

after the period of more than 18 years of actual sentence and 24

years of remission period, has to be declared as illegal and thus

prayed to allow the writ petition. Learned counsel has relied on

1) Bhola Kumhar v. State of Chhattisgarh1;

Per contra, the learned Special Government Pleader

appearing on behalf of the learned Additional Advocate General

has vehemently opposed the very maintainability of the Writ

Petition and stated that the detention of the detenu cannot be

said to be illegal as he is serving the sentence which has been

imposed by the criminal Court i.e. IV Additional Metropolitan

Sessions Judge, Hyderabad, in Sessions Case No.112 of 1997,

vide judgment dated 24.01.2003, which has been confirmed by

this Hon'ble High Court in Criminal Appeal No.149 of 2003 vide

judgment dated 17.10.2003. Further, the learned Special

Government Pleader has stated that as long as necessary orders

of remission are not passed by the authorities, the detenu has

to serve/complete the period of sentence that has been imposed

upon him. That the 'life sentence' which has been imposed by

the trial Court has to be read as the 'entire biological life' of the

accused/convicted person. The detenu does not have any

vested right to seek release automatically as soon as he

completes the period of sentence of either 14 years/20 years, as

the case may be. Therefore, the learned Special Government

Pleader has prayed this Hon'ble Court to dismiss the present

1 2022 LawSuit (SC) 834

writ petition with costs. Learned Special Government Pleader

has relied on the following citations in support of his

submissions:

       1)      Mohd. Munna v. Union of India2; and

       2)      Sangeet and another v. State of Haryana3.

       3)      Gopal Vinayak Godse v. State of Maharashtra4,

       4)      State of Rajasthan v. Jamil Khan5

Admittedly, in the present case, the detenu is serving the

sentence of life imprisonment imposed by the Sessions Court in

S.C. No.112 of 1997, which has been confirmed by this High

Court in Criminal Appeal No.149 of 2003. The term 'life

sentence' has been interpreted by the Hon'ble Supreme Court in

a catena of cases.

In Gopal Vinayak Godse (referred supra), the

Constitution Bench of the Hon'ble Supreme Court has held that

the sentence of imprisonment for life must, prima facie, be

treated as imprisonment for the whole of the remaining period of

the convicted person's natural life.

2 (2005) 7 SCC 417 3 (2013) 2 SCC 452 4 AIR 1961 SC 600 5 (2013) 10 SCC 721

Relying on the above dicta, a Division Bench of the

Hon'ble Supreme Court in Mohd. Munna's case (referred

supra) has held that life imprisonment is not equivalent to

imprisonment for fourteen years or for twenty years as contended

by the petitioner.

In Sangeet's case (referred supra), the Hon'ble Supreme

Court, at paras 71 and 77.6, has held as under:

"71. Under the circumstances, it appears to us that there is a misconception that a prisoner serving a life sentence has an indefeasible right to release on completion of either fourteen years' or twenty years' imprisonment. The prisoner has no such right. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 CrPC which in turn is subject to the procedural checks in that section and the substantive check in Section 433-A CrPC.

77.6 Remission can be granted under Section 432 CrPC in the case of a definite term of sentence. The power under this section is available only for granting "additional" remission, that is, for a period over and above the remission granted or awarded to a convict under the Jail Manual or other statutory rules. If the term if sentence is indefinite (as in life imprisonment), the power under Section 432 CrPC can certainly be exercised but not on the basis that life imprisonment is an arbitrary or notional figure of twenty years of imprisonment."

In Jamil Khan case (referred supra), the Hon'ble

Supreme Court has held as under:

31. .... Imprisonment for life is till the end of the biological life of the person, as held by a Constitution Bench of this Court in Gopal Vinayak Godse v. State of Maharashtra (AIR 1961 SC 600). However, this Court has been, for quite some time, conscious of the liberal approach and sometimes discriminatory too, taken by the States in exercise of their power under Sections 432 and 433 CrPC in remitting or commuting sentences. In Jagmohan Singh v. State of U.P. [(1973) 1 SCC 20] this Court had expressed concern about such approach made by the States in remitting life sentences. That led to the amendment in CrPC introducing Section 433-A by Act 45 of 1978.

35. .... The sentence of life imprisonment is till the end of one's biological life. However, in view of the power of the State under Sections 432 and 433 CrPC, in the present case, we are of the view that the sentences shall run consecutively, in case there is remission or commutation. We further make it clear that the remission or commutation, if considered in the case of the respondent, shall be granted only after the mandatory period of fourteen years in the case of offence under Section 302 IPC."

In view of the above principles of law, it cannot be said

that any convicted person serving an imprisonment for life will

be automatically entitled to be released as soon as he completes

a prison term of 14 years/20 years, as the case may be.

However, it is to be noted that the Government of Telangana has

issued G.O.Ms.No.30 dated 26.09.2020 wherein the

Government has granted remission of the sentence to various

categories of life convicts undergoing life sentence.

Undisputedly, the detenu also falls within one of the said

category. As per the contention of the petitioner, the detenu

falls under category 4 (b) whereas as per the contention of the

Government, the detenu falls under category 5 (xv) and

therefore the detenu has to necessarily undergo a total period

mentioned in 6 (iii)(a) i.e., 18 years of actual sentence and 24

years of total sentence including the remission period.

It is pertinent to note that, by virtue of the orders of this

Court passed in W.P. No.18399 of 2021, dated 28.07.2022, the

learned Single Judge has held that the person murdered by the

detenu is not a public servant on duty and the said finding has

become final. Irrespective of the fact whether the detenu comes

under category 4 (b) or 5 (xv) mentioned in G.O.Ms.No.30 dated

26.09.2020, the fact remains that by the time of passing of the

earlier rejection order, dated 26.09.2019, the detenu has not

completed the period as mentioned in category 6 (3) (a) of

G.O.Ms.No.30 dated 26.09.2020. It is also pertinent to note

that the said order dated 26.09.2019 has been set aside by this

Court in W.P. No.19525 of 2020, dated 01.06.2021. Though the

authorities concerned have taken the ground that the detenu

has not completed 18 years of actual period of sentence and

total sentence of 24 years including the period of remission at

that point of time i.e. as on 26.09.2019, but admittedly as on

date the said period has also been completed. Therefore,

irrespective of the fact whether the detenu falls under the

category 4 (b) or 5 (xv), he is now eligible for remission, as per

G.O.Ms.No.30, dated 26.09.2020. In the counter filed by the

authorities concerned, at para 11, it is specifically stated that

the case of the detenu has been recommended for premature

release and the orders of the Governor are awaited in that

regard. The Relevant portion of the counter affidavit is hereby

reproduced:

"11. ... the 1st Respondent in compliance with the orders of the Hon'ble High Court in W.P. No.19525 of 2020, dt:01.06.2021 has reviewed the case of Convict Prisoner No.3893 Sk.Zakria S/o.S.A. Nabi on 13.10.2021 along with other convict prisoners who were also convicted for Life imprisonment in the same Criminal Case No.112/1997, dt:24.01.2003, by placing the same before the Screening Committee constituted under G.O.Ms.No.30 Home (Services-III) Department, dt:26.09.2020 and reconsidered and recommended the case of the said prisoner for premature release. However the orders from Governor are awaited and it is pertinent to submit that, there are no directions to this answering respondent to comply with as observed by this Hon'ble Court in CC 909 of 2021 ..."

Having regard to the specific assertions made in the

counter, stated above, and in view of the ratio laid down by the

Hon'ble Supreme Court in the above referred judgments, the

detention of the detenu cannot be said to be illegal. Unless and

until the remission orders are passed, the petitioner cannot

seek premature release of the detenu only on the sole ground

that the detenu has completed 18 years of actual sentence and

24 years of sentence including remission.

Accordingly, the Writ Petition is dismissed. However,

having regard to the fact that the authorities have already

recommended the case of the detenu for premature release, the

authorities are directed to pursue the matter with the Governor