C BALAKRISHNA Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This writ petition raises important constitutional questions for consideration regarding the jurisdiction, extent and the mode of exercise of power of clemency by the Governor under Article 161 of the Constitution of India.

(2.) The petitioner was working as a Deputy Special Commissioner in the office of the Special Commissioner, Government of Andhra Pradesh at New Delhi. He is a native of Tirupathi Town and while on leave, he was on a visit to that place on 8-6-1982. On the said date, he went to the Main Branch of the Andhra Bank, a Nationalised Bank, where he had Savings Bank Account No.6637 to encash a draft for Rs.1,800.00, which was his leave pay, issued by the Government of Andhra Pradesh. He was paid 18 one hundred rupee notes by the concerned Cashier and on receipt of the same, he left the Bank. 20 minutes after his exit, the Manager and the Cashier accompanied by some employees of the Bank came to the petitioner's house and alleged that the Cashier had paid Rs.8,100.00 by mistake while the petitioner was entitled for only Rs.1,800.00 and demanded the petitioner to refund the balance of the amount. The petitioner had refuted their allegations and asserted that he had received only Rs.1,800.00and as the amount was still in his pocket, he took-out the same and asked them to count. Even after counting, the above bank employees were in no mood to listen to him and forcibly took him to the Bank premises and confined him in the Manager's room from 12.00 noon to 4.30 p.m. He was also harassed by putting several questions and also threats. During the above period, the petitioner was not allowed to move and was not even given water or allowed to attend to the calls of nature. The Inspector of Police was called and after interrogation, the petitioner was allowed to go home. But, again, the above bank employees came to the house of the petitioner and took him back to the Bank and again confined him till 7.30 p.m. and threatened him with dire consequences. Again, the Sub-Inspector of Police came and when the Sub-Inspector asked for written complaint from the Manager of the Bank, he declined to give the same, then, the Sub-Inspector had permitted the petitioner to leave the bank premises. The petitioner met the Chairman of the Bank and complained to him expecting at least pardon, but that was not to be. Instead, the Chairman threatened the petitioner that the Bank employees \vill be saved at any cost. The consequence was that the petitioner was forced to file a criminal complaint for the offence of wrongful confinement punishable under Section 342 IPC. When the case was pending before the Court of Magistrate, Section 321 Cr.PC was' sought to be applied and the case was allowed to be withdrawn by the prosecution. On a revision being filed to the Court of Sessions, the said withdrawal order was set aside and the case proceeded. The same was challenged by the prosecution in the High Court by filing a revision, but that was dismissed on 24-4-1987. It is pertinent to mention that for the period from 1982 to 1987 (5 years), the case was dragged only on account of proceedings relating to the withdrawal of the prosecution, which was initiated at the instance of respondents 2 and 3. By judgment dated 26-8-1991, the Court of the Munsif Magistrate, Tirupathi, after trial had convicted the respondents 2 and 3 for wrongful confinement of the petitioner and sentenced them to undergo rigorous imprisonment for 6 months and also to pay a fine of Rs.500.00 each. Appeal to the Court of Sessions failed as the Sessions Court by its judgment dated 10-9-1993 had affirmed the conviction recorded and sentence imposed by the Court of Magistrate. Even the revision to this Court met the same fate as this Court by judgment dated 4-7-1994 had affirmed the judgments rendered by the Courts below. Before this Court in the revision, after failing to persuade to set aside the judgments of the Courts below, invocation of powers of Probation Act was sought for; but that was rejected by this Court. It may be apt to extract what this Court said with regard to either to show leniency or to let off in Probation. "Considering the entire material, I am fully convinced that the evidence on record establishes an offence under Section 342 IPC against the two accused. The convictions and the sentences are perfectly justified. Considering the high handed conduct of A1 and A2 and their co-employees I do not find any justification for invoking the powers of the Court under Section 360 Cr.PC. The fact that the accused faced the ordeal for nearly 12 years is no justification for letting off people, who behaved in a most high handed manner, leniently. It should also be remembered that a man holding a responsible position in Government Service as Deputy Commissioner in the office of the Special Commissioner to the Government of Andhra Pradesh at New Delhi was harassed. If an Officer holding such a position could be treated in this manner, it is to be imagined how a common man without any official position would have been harassed by the Bank employees in such a situation. There is no justification for applying the provisions of Section 360 Cr.PC or the provisions under the Probation of Offenders Act."The above judgment rendered by this Court had become final.

(3.) Then, respondents 2 and 3 invoked the power of clemency of the Governor under Article 161 of the Constitution of India. The Governor had exercised his power of clemency and granted remission of sentences passed against respondents 2 and 3. It is apt to extract the said order dated 27-8-1994 of the Governor: "1. S/Sri M. Jagannadha Saslry and R. Subrahmanyam, Employees of Andhra Bank were convicted in a case under Section 342 IPC and they were sentenced to undergo six months rigorous imprisonment and also to pay a fine of Rs.500.00 each by the II Additional Munsif Magistrate, Tirupathi in its judgment first read above. The appeals filed by the above individuals before III Additional District and Sessions Judge, Chittoor and also before the Hon'ble High Court of Andhra Pradcsh were dismissed in their orders second and third read above. 2. The accused S/Sri M. Jagannadha Sastry and R. Subrahmanyam, in their representation, have represented that inspite of ordering for withdrawal of the case filed by them, by the trial Magistrate as requested by the Collector, Chittoor, the Court in its order first read above passed sentence to undergo six months rigorous imprisonment and a fine of Rs.500.00 each that too after thirteen years. Further, they have represented that they have been undergoing mental torture for the past 12 years inspite of recouping Rs.8,100.00 being the deficit amount in the cash and if the sentence awarded by the Court is allowed to stand, they will suffer irreparable loss and damage and their families would be ruined and thrown on the streets. They have, therefore, requested the Governor to exercise the power conferred under Article. 161 of the Constitution of India and suspend the sentence passed by the Court. 3. Government have examined the matter carefully and they observe that in this case, the Collector, Chittoor had already requested the Public Prosecutor to file an application for withdrawal of prosecution against both the accused and the trial Magistrate had also ordered the withdrawal of the case, but the Sessions Judge has set aside the order on some technical objection. Further, it is observed that the alleged offence in this particular case was committed not to gain any personal or monetary gains but to protect the interests of the Bank, which is a Nationalised one and that no moral turpitude is involved and that the sentence passed against the accused will have bad repercussions to the accused as well as the reputation of a nationalised bank. It has, therefore, been decided to remit the sentence on the accused as a special case on humanitarian grounds. 4. In exercise of the powers conferred under Article 161 of the Constitution of India, the Governor of Andhra Pradesh hereby remits the sentence passed on S/Sri M. Jagannadha Sastry S/o. M. Subrahmanyam and R. Subrahmanyam S/o. S. Rajagopal, employees of Andhra Bank, by the II Additional Munsif Magistrate, Tinipathi through his judgment first read above."This writ petition has been filed questioning the above order of clemency by the Governor.