Full Judgment Text
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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.