M T KHAN Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) These two writ petitions have been filed by Sri M. T. Khan, President of the Andhra Pradesh Civil Liberties Committee on behalf of two convicts contending that their continued incarceration is illegal and arbitrary. W.P. No. 20018 of 1995 relates to convict S. Appala Swamy (CT No. 8103) who was convicted for the offence under Section 302, I.P.C. and sentenced to undergo imprisonment for life by the Sessions Judge, Bastar at Jagdalpur (Madhya Pradesh) in S.T. No. 238 of 1986. While he was serving the life sentence at the District Jail, First Class, Jagdalpur, he was transferred to the Visakhapatnam Jail in Andhra Pradesh on 29-1-1991. Before his transfer to the Visakhapatnam Jail, he was in Bastar jail from 5-3-1986 as a remand prisoner. As per the counter-affidavit, he served, as on 22-9-1995, a total sentence of 11 years 6 months and 6 days as detailed below : "Actual sentence 7 y 7 m 7 d undergone Remand period from 5-3-1986 to 14-2-1988 1 y 11 m 17 d Remission earned up to August 1995 (707 days) 1 y 11 m 12 d ----------------- Total period 11 y 6 m 6 d -----------------W.P. No. 21536 of 1995 relates to convict Rajender (CT 5334) who was convicted under Section 302, I.P.C. and sentenced to imprisonment for life on 15-3-1982 in S.C. No. 209 of 1981 by the IV Additional Sessions Judge, Thane, Maharashtra. He was in judicial custody from 14-5-1981. While he was serving the sentence in the Central Prison, Erawada, Maharashtra, he was transferred to the Central Prison, Warangal in the State of Andhra Pradesh on 6-8-1988. As on 14-5-1995, he had completed 14 years of actual sentence including the remand period. When the Government of Andhra Pradesh forwarded the entire case of convict Rajender to the State of Maharashtra on 12-9-1994 for taking appropriate action having regard to the fact that the completed actual sentence of 14 years in prison, the Government of Maharashtra passed an order on 1-12-1995 under sub-section (1) of Section 432, Cr.P.C., remitting "that portion of the sentence of imprisonment for life which is in excess of 24 years of total imprisonment including all remissions subject to the 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 ....." These facts are uncontroversial supported by the record placed before us.

(2.) The Government of Andhra Pradesh issued G.O. Ms. No. 4, Home (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 of India remitted the unexpired residue of the sentences of the following 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. "(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 14-01-1995 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 14-1-1995 shall be released." Paragraph 3 of the G.O., says that all prisoners eligible for release as on 14-01-1995 falling under the above two categories shall be released. Paragraph 4 lays down 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 under-going the sentences in other States. Five categories of prisoners are excluded from the purview of the aforesaid benefit. One of these excluded categories is : "Prisoners convicts and sentenced by Courts situated outside the State of Andhra Pradesh. "The two convicted in these two write petitions are squarely covered by the aforesaid exception.

(3.) Counter-affidavits in both the matters, apart from averring to the legal contentions raised by the petitioner, have stated the factual position concerning the period of remand and remissions earned for good behaviour by both the convicts. Although the States of Maharashtra and Madhya Pradesh are parties to these writ petitions, the Maharashtra State has not filed any counter-affidavit, but in counter filed on behalf of the Madhya Pradesh Government by Sri R. S. Vijayavargia, Senior Law Officer, Jail Head Quarters, Bhopal, it is stated that the convict S. Appalaswami was transferred from Bastar to Visakhapatnam Central Jail as per the provisions of the order issued by the Government of Madhya Pradesh under Section (3)(1) of Section 29(sic) of the Transfer of Prisoners Act, 1950. Rule 2 of the above order entitled Madhya Pradesh Prisons (Removal of the Prisoners Confined in Prison) Orders, 1968, lays down that the transfer of a prisoner has to be effected by the Inspector-General of Prisons who should pass formal orders sanctioning the transfer while at the same time notifying in each case the Inspector-General of Prisons of the State to which the prisoner is to be removed and that ordinarily persons sentenced to serve imprisonment for a period of less than three months shall not be transferred. This rule also permits the Inspector-General of the State of Madhya Pradesh to remove any prisoner transferred to another State to the State of Madhya Pradesh with the previous consent of the Inspector-General of Prisons of the other State.