Govt. Of A. P. vs M. T. Khan - 2003 Supreme(SC) 1224

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2003 Supreme(SC) 1224

2004(1) Supreme 237
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
Doraiswamy Raju & Arijit Pasayat, JJ.
Govt. of A.P. and Ors. -Appellants
versus
M.T. Khan -Respondent
Criminal Appeal Nos. 551-552 of 1997
Decided on 5-12-2003
Counsel for the Parties :
For the Appellant : G. Prabhakar, Appellant.
For the Respondent : P. Vittal Rao, C.S. Panda, Advocate for B. Kanta Rao, Advocate.

Headnote:Constitution of India-Article 161 -Exercise of clemency powers by Governor-Scope and ambit-Whether remission could be granted to prisoners convicted by Courts outside the concerned State-Respondents were convicted by Courts in Madhya Pradesh and Maharashtra and were awarded life imprisonment-They were undergoing sentence in State of Andhra Pradesh-G.O. No. 4 dt. 17-1-1995 issued by Govt. of Andhra Pradesh by which Governor remitted unexpired residue of sentences of different categories of prisoners-One of excluded categories was prisoners convicted and sentenced by Courts situated out side State of A.P.-High Court held exclusion part of the order violative of Article 14 of Constitution of India-State appeal-Impugned judgment amounts to Court re-making the policy and redoing the G.O. itself and to that extent judgment was erroneous, liable to be set aside.
       Held : In our considered opinion, the High Court went wrong in putting such restrictive interpretation or understanding of the ratio of the 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. (Para 6)
       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. (Para 9)

JUDGMENT

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.

2. 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.

3. 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.."

4. 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 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

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2003 Supreme(SC) 1224

Cases Referred (4)