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CASE NO.:

Appeal (crl.) 551-552 of 1997

PETITIONER:

Govt. of A.P. and Ors.

RESPONDENT:

M.T. Khan

DATE OF JUDGMENT: 05/12/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J

These two appeals raise an interesting question involving the

scope and ambit of Article 161 of the Constitution of India, 1950 (in

short the 'Constitution'). The question is whether the Governor of a

particular State in exercise of clemency powers under Article 161 of the

Constitution can grant remission to prisoners convicted by courts

outside the concerned State, but undergoing sentences in jails in the

State. Present appeals relate to the State of Andhra Pradesh. The Andhra

Pradesh High Court in the two writ petitions (W.P. nos. 20018 and 21536

of 1995) held in the affirmative and hence these appeals.

One S. Appala Swamy was convicted for the offence punishable under

Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') and

sentenced to imprisonment for life by the Sessions Judge, Bastar at

Jagdalpur, Madhya Pradesh. While serving the said sentence at the

District Jail, Jagdalpur he was transferred to the Visakhapatnam Jail in

Andhra Pradesh. Writ petition No.20018 of 1995 related to him. The other

writ petition No.21536/1995 related to convict Rajender who was

convicted under Section 302 IPC and sentenced to imprisonment for life

by the IV Additional Sessions Judge, Thane, Maharashtra. While serving

the sentence in the Central Prison, Erawada, Maharashtra he was

transferred to the Central Prison Warangal in the State of Andhra

Pradesh.

Respondent M.T. Khan claiming to be the President of Andhra

Pradesh Civil Liberties Committee filed writ petitions contending that

their continued incarceration was illegal and arbitrary. At the time of

filing the writ petitions the actual sentence undergone by S. Appala

Swamy was about 11 years and 6 months, while that of Rajender was in

excess of 14 years. As by 14.5.1995 Rajender had completed more than 14

years of actual sentence including the remand period, the Government of

Andhra Pradesh forwarded his case for consideration of the State of

Maharashtra on 12.9.1994 for taking the appropriate action. The

Government of Maharashtra passed an order on 1.12.1995 under sub-section

(1) of Section 432 of the Code of Criminal Procedure, 1973 (in short the

'Code') remitting "that portion of the sentence of imprisonment for

life which is in excess of 14 years of total imprisonment including all

remissions subject to completion of actual imprisonment of 14

years....subject to the condition of the (said) person's good behaviour

and conduct in prison till the time of his release.."

The Government of Andhra Pradesh issued G.O.Ms. No.4, Home

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(Prisons-C) Department dated 17.1.1995 by which the Governor of Andhra

Pradesh in exercise of his powers conferred by Article 161 of the

Constitution remitted the unexpired residue of the sentences of

different categories of prisoners convicted by the courts in the State

for offences against laws relating to matters to which the executive

power of the State extends. The relevant portion reads as follows:

"(a) All convicted prisoners sentenced to

imprisonment for life and governed by Section 433-A,

Cr.P.C., who have completed 14 years of total

sentence including 10 years of actual sentence as on

14.1.1995 shall be released.

(b) All convicted prisoners sentenced to

imprisonment for life and governed by Section 433-A,

Cr.P.C. aged more than 65 years and have undergone

more than 5 years of actual sentence and a total

sentence of 7 years as on 14.01.1995 shall be

released".

Paragraph 3 of the G.O. indicated that all prisoners eligible for

release as on 14.1.1995 falling under the afore-noted two categories

were to be released. Paragraph 4 indicated that the above remissions and

reductions in sentences shall also apply to prisoners who have been

convicted by courts situated within the State of Andhra Pradesh and are

undergoing the sentences in other States. Five categories of prisoners

were excluded from the purview of the aforesaid benefit and one of the

excluded categories to which this case relates was:

"Prisoners convicted and sentenced by courts

situated outside the state of Andhra Pradesh".

The two convicts involved in the writ petitions were covered by the

aforesaid exclusion which was challenged to be arbitrary, without any

basis and not proper exercise of power conferred under Article 161 of

the Constitution. It was contended that the power of clemency under

Article 161 was unfettered and extended to all prisoners serving

sentences in the jails of State of Andhra Pradesh and there was no

rational basis to exclude one category of prisoners on the ground that

they were convicted by courts situate outside the State of Andhra

Pradesh. The exclusion was characterized as arbitrary, discriminatory

and in violation of Article 14 of the Constitution. There was no

impediment in this regard either in the Transfer of Prisoners Act, 1950

(in short the 'Prisoners Act') or any other enactment. The prayer for

release of the two convicts was opposed by the State on the ground that

the State of Andhra Pradesh has no power to grant remissions to

prisoners undergoing sentences in the State pursuant to convictions

given by courts of competent jurisdiction located in other States. It

was further submitted that the exclusion was not because the State did

not want to extend the benefit, but because of the reason that it had no

power to deal with the concerned prisoners. The High Court referred to

Section 432 of the Code and Article 161 of the Constitution; and came to

hold that the State's view was wrong and power to direct such release

was available under Article 161. Though the State had the power to do

it, erroneous view was taken that it did not have the power to do it.

Since power was available and State was under mistaken impression that

it did not have the power, therefore, non-exercise was arbitrary.

Distinction tried to be made between prisoners of one category who were

convicted and are undergoing sentences inside the State and those

convicted outside the State serving sentences inside the State is

without any rational basis and impugned G.O. so far as it relates to the

exclusion, inflicted impermissible and unjustifiable hardship on the

transferred prisoners and violated the equality clause enshrined in

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Article 14 of the Constitution. Therefore, sub-paragraph (1) of

paragraph 4 of the G.O. was held to be inconsequential and inseverable

from the rest of the G.O. In essence, direction was given to consider

the case of the two convicts in accordance with the provisions of the

G.O. without reference to sub-para (1) of paragraph 4.

In support of the appeals, learned counsel for the State of Andhra

Pradesh submitted that the High Court has clearly mis-interpreted

Article 161 which clearly refers to "appropriate Government". The

appropriate Government so far as the convicts are concerned is the

Government within whose territorial jurisdiction the said convicts were

convicted. The fortuitous circumstance of a convict serving the sentence

inside the State would not empower the Government to exercise powers

under Article 161 of the Constitution so far as that convict is

concerned. Otherwise, it would lead to a very anomalous situation.

Supposing a convict has served sentence in more than one States, can it

be said that Government of different States can exercise power of

remission in respect of an accused who at some anterior point of time or

in present time has served or is serving the sentence in a jail located

within that State. In the G.O. the contra situation has been taken note

of. A prisoner convicted by a Court inside the State and serving

sentence outside is covered by the G.O. Furthermore, at this juncture,

it is appropriate to take note of a decision of this Court in State of

Madhya Pradesh v. Ratan Singh and Ors. (1976 (3) SCC 470). That case

related to Section 401 of the Code of Criminal Procedure, 1898 (in short

the 'Old Code') corresponding to Section 433 of the new Code. In that

case the decision of Punjab and Haryana High Court in Surjit Singh v.

State of Punjab (ILR (1975) 1 Pb. And Har. 201) was referred to and the

view expressed by the High Court was approved in the following terms:

"There is, however, nothing to indicate that

for the purposes of remission and suspension of

sentences under Section 401, Criminal Procedure Code,

the Legislature intended to adopt a different

definition of 'appropriate Government'. In short,

under Section 401, Criminal Procedure Code, the

Government of the State of conviction and not the

Punjab Government was competent to remit the balance

of the sentence of these life convicts. All that the

Punjab Government could do was to forward the cases

of these life convicts to the appropriate Government

for remitting the remaining term of their life

imprisonment, in exercise of the power under Section

401, Criminal Procedure Code. The Punjab Government

has already made such a reference in favour of the

petitioners to the Governments of the States of

conviction. Neither the Punjab Government nor the

Superintendent of Jail concerned can release the

prisoners under any of the statutory rules contained

in Punjab Jail Manual without receiving the necessary

orders of the appropriate Government under Section

401. Pending the receipt of orders of the appropriate

Government, therefore, the detention of the

petitioners could not by any reasoning is called

illegal".

Though Ratan Singh's case (supra) was noticed by the High Court in the

impugned judgment a distinction was sought to be made on the ground that

the interpretation given to the expression 'appropriate government' has

no application when the power of Governor under Article 161 of the

Constitution is invoked.

In our considered opinion, the High Court went wrong in putting

such restrictive interpretation or understanding of the ratio of the

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decision. The High Court came to the conclusion that the decision of the

Government not to extend remission was not because it did not want to do

so but because it was under the belief that it had no such power. The

High Court thought that it had. The question is not so much of what the

Government wanted to do, but whether it had the power of clemency in a

matter like the one under consideration. It was considered expedient

that the power is to be exercised in respect to a particular category of

prisoners. The Government had full freedom in doing that and even

excluding category of persons which it thinks expedient to exclude. To

extend the benefit of clemency to a given case or class of cases is a

matter of policy and to do it for one or some they need not do it for

all, as long as there is no insidious discrimination involved. In the

case at hand it was not only due to lack of power, but also because of

conscious decision to exclude in the background of what it considered to

be lack of authority, and in our view no exception could be taken to the

same, legitimately.

In State of Punjab and Ors. v. Joginder Singh and Ors. (AIR 1990

SC 1396) this Court held as follows:

"In Gopal Vinayak Godse v. State of Maharashtra

(1961 (3) SCR 440), this Court held that a sentence

of transportation for life or imprisonment for life

must be treated as transportation or imprisonment for

the whole of the remaining period of the convict's

normal life, unless the said sentence is commuted or

remitted by the appropriate Government. Dealing with

the Rules framed under the Prisons Act, 1894, this

Court held that even though they were statutory in

character they did not confer an indefeasible right

on a prisoner sentenced to transportation for life to

an unconditional release on the expiry of a

particular term including remissions. It held that

the rules framed under the Prisons Act enabled a

prisoner to earn remissions \026 ordinary, special and

State \026 the said remissions were to be given credit

towards his term of imprisonment and for the purpose

of working out the remissions the sentence of

transportation for life was equated with a definite

period, but it is only for that particular purpose

and not for any other purpose. Lastly it observed

that the question of remission was exclusively within

the province of the appropriate Government.

In Maru Ram v. Union of India (1981 (1) SCR

1196), this Court repelled the challenge to Section

433A both on the question of competence of Parliament

to enact the provision and its constitutional

validity. While interpreting Sections 432, 433 and

433A of the Code, this Court pointed out that wide

powers of remission and commutation of sentences were

conferred on the appropriate government but an

exception was carved out for the extreme category of

convicts who were sentenced to death but whose

sentence had been commuted under Section 433 into one

of imprisonment for life. Such a prisoner is not to

be released unless he has served at least 14 years of

imprisonment. The Court refused to read down Section

433A to give overriding effect to the Remission rules

of the State. It categorically ruled that Remission

Rules and like provisions stand excluded so far as

'lifers' punished for capital offences are concerned.

Remissions by way of reward or otherwise cannot cut

down the sentence awarded by the Court except under

Section 432 of the Code or in exercise of

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constitutional power under Articles 72/161 of the

Constitution. Remission cannot detract from the

quantum and quality of the judicial sentence except

to the extent permitted by Section 432 of the Code,

subject of course to Section 433A, or where the

clemency power under the Constitution is invoked. But

while exercising the constitutional power under

Articles 72/161, the President or the Governor, as

the case may be, must act on the advice of the

Council of Ministers. The power under Articles 72 and

161 of the Constitution is absolute and cannot be

fettered by any statutory provision such as Sections

432, 433 and 433A of the Code. This power cannot be

altered, modified or interfered with in any manner

whatsoever by any statutory provisions or Prison

Rules".

(Underlined for emphasis)

The Governor, in terms of the dicta laid in the last noted case

has to act on the advice of the Council of Ministers. It is

inconceivable that a Council of Ministers of the State of Andhra Pradesh

can render any appropriate advice in respect of accused persons

convicted by Courts of Madhya Pradesh and Maharashtra or that it would

be competent to do so. The Prisoners Act does not throw any light on the

controversy as wrongly held by the High Court. It only enables transfer

of prisoners from one State to another. It does not purport to confer

jurisdiction on the transferee State the power of remission in respect

of transferred prisoners. In Sanaboina Satyanarayan v. Government of

Andhra Pradesh and Ors. (2003 (5) Supreme 343), it was held that the

grant of remission as well as the conditions formed a compendious single

common pattern or scheme of concession by way of remission, pregnated

with a policy designed in public interest and safety and interests of

the society. There is no scope for judicial modification or modulating

the same so as to extend the concession in excess of the very objective

of the maker of the order which seems to have been guided by

considerations of State policy. The scheme of remission cannot be

modified or extended to the category of prisoners to which it was

specifically excluded.

Section 432 of the Code corresponds to and reproduces almost word

for word Section 401 and sub-section (3) of Section 402 of the old Code.

Sub-sections (1) to (4) of Section 432 of the Code reproduce word for

word sub-sections (1) to (4) of Section 401 of the old Code. Sub-

section (5) reproduces word for word sub-section (6) of the old Section.

Sub-section (6) similarly reproduces sub-section (4-A) of the old

Section. Sub-section (5) of old Section 401 had been omitted earlier in

1950. Sub-section (7) corresponds to sub-section (3) of Section 402 of

the old Code. The main paragraph and Clause (a) reproduce the old

provision word for word without any change. Clause (b) is slightly

different, but without any change of substance. That clause reads:

"(b) in other cases, the State Government."

According to us, in view of the legal position delineated by the

ratio in Ratan Singh's case (supra) which has full application to the

case on hand, the High Court was not justified in obliterating a part of

the G.O. and extending the benefits to the concerned prisoners. It

amounts to the Court re-making the policy and redoing the G.O. itself.

The High Court's judgment to that extent is erroneous and needs to be

set aside which we direct. But after serving the requisite sentence, the

appropriate Government which according to us in the present case are

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States of Madhya Pradesh and Maharashtra respectively, their cases shall

be considered by those two State Governments who shall take necessary

decision as to whether their release is permissible and desirable. The

appeals are allowed to the aforesaid extent.