JAGARAM Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This is a petition for issuance of a writ of habeas corpus, questioning the legality of the continued incarceration of four convicts, namely, (i) M. Jagaram, (ii) Badija, (iii) Roopala, and (iv) Kistu, being Convicts Nos. 4919, 4920, 4924, and 4929 respectively. All the four persons have been convicted under S. 396, I.P.C. and sentenced to life imprisonment. The petitioners contention is that clause (3) of paragraph 3 of G.O.Ms. No. 580, Home Prisons, (C) Department, dated 20-10-1984, is void being arbitrary and violative of Art. 1. of the Constitution. If the said clause is held to be arbitrary, it is admitted the first of the four convicts, namely, M. Jagaram (Convict No. 4919) is entitled to be released; the other three convicts are not entitled to be released in any event. 2 Section 432 of the Code of Criminal Procedure, 1973, confers both upon the Central Government and the State Governments the power to suspend the execution of the sentence, or to remit the whole or any part of the punishment to which a person has been sentenced. This power can be exercised with, or without any conditions. Section 433 confers upon the appropriate Government, i.e. both upon the State Governments, as well as the Central Government, the power to commute the sentence, including the sentence of death. Section 433A, which has been introduced by the Amendment Act 1978, with effect from 18-12-1978, however, placed a restriction upon the power conferred by Ss. 432 and 433. According to this section which, of course, has been held not to have retrospective operation (see : Maru Ram v. Union of India, AIR 1980 SC 2147 : (1980 Cri LJ 1440)) where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by Law, or where a sentence of death imposed upon a person has been commuted under S. 433 into imprisonment for life, nothing contained in S. 432 shall empower the State Government to release such person from prison unless he has served at least fourteen years of imprisonment. The Petitioners were convicted prior to 18-2-1978; hence Section 433A has no application to them. 3 It is clear that the powers of suspension, remission and commutation conferred upon the Central Government and State Governments by the aforesaid provisions, are dehors the powers conferred upon the President by Art. 72, and upon the Governor by Art. 161 of the Constitution. 4 In exercise of its power under S. 432, the Government of Andhra Pradesh issued G.O. Ms. No. 580 dated 20-10-1984, directing the release of certain convicts subject to the conditions specified therein, on the occasion of anniversary of the formation of the State of Andhra Pradesh on 1/11/1984, and the restoration of democratic rule in the State It would be appropriate to set out the G.O. in its entirety :- ".............. GOVERNMENT OF ANDHRA PRADESH ABSTRACT : Prisoners - Grant of Remission to prisoners on the occasion of Anniversary of the Formation of Andhra Pradesh State on Ist November, 1984 and the restoration of democratic rule in the State - Orders - Issued : HOME (PRISONS. C) DEPARTMENT G.O.Ms. No. 580. Dated : 20/10/1984. ORDER. On the occasion of the anniversary of the Formation of Andhra Pradesh State on Ist November, 1984 and the restoration of democratic rule in the State, the Government have decided to grant remission to certain categories of prisoners who have been convicted for offences against laws relating to matters to which the Executive powers of the State extend.

(2.) Accordingly, in exercise of the powers conferred by S. 432 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) the Government is pleased to remit and reduce the sentences of the following categories of the prisoners in the State who have been convicted by Civil Courts of Criminal Jurisdiction of the scales specified against each; except to the extent specified in paragraph below :- (a) The prisoners sentenced for the life imprisonment and not governed by Section 433A Criminal Procedure Code, and who have completed 7 years of actual sentence of 10 years of total sentence including remission shall be released. (b) The other lifers not governed by Section 433A Criminal Procedure Code and who have undergone total sentence of 5 years shall be released. (c) All prisoners with a sentence of one year and above and not governed by (a), (b), (c) above shall be granted a special remission of one month for each year of sentence awarded. (d) Long term prisoners, other than lifers governed under S. 433A, Criminal Procedure Code, who have completed actual sentence of 5 years as on 31-10-1984, shall be released. (e) All prisoners with a sentence below one year shall be granted a special remission of 15 days. (f) All prisoners, other than life convicts, who are 65 years of age and above as on 31-10-1984, shall be released. 3. The remission and reduction of sentences ordered in paragraph above shall also apply to prisoners who have been convicted by Courts situated within the State of Andhra Pradesh and are undergoing sentences in other States but shall not apply to the following categories of prisoners :-

(3.) The Prisoners who are eligible for release under paragraph 2 above shall be released on 1/11/1984.