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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.