Judgment

SARKARIA, J.:- The principal question of law that falls to be determined in this writ petition filed under Article of the Constitution of India by the petitioner is: Which is the appropriate Government - Central or the State Government - empowered to remit the sentence of a person convicted of offences under Sections 489-A to 489-D of the Penal Code?

2. The material facts giving rise to this question, are not in dispute and may be stated as under:

G. V., Ramanaiah was convicted of offences under Sections 489-A to 489-D Penal Code, on 17th July, 1968, by the Sessions Court, Nellore (Andhra Pradesh), and sentenced to rigorous imprisonment for a period of 10 years. Six other persons, namely, (1) B. Sitaramireddi; (2) M. Rangareddy: (3) Ch. Semireddy; (4) K. E. Lakshman (5) K. Balaram and (6) T. Mallikharjundu, were also tried and convicted of offences under all or some of the Sections 489-A to 489-D, Penal Code and were sentenced to various terms of imprisonment by the same Court. On the occasion of Gandhi Centenary celebrations, the Governor of Andhra Pradesh, purporting to exercise the powers under Article 161 of the Constitution, issued G. O. No. Ms. 1321, Home (Prisons-A) - Department, dated 25th September, 1969, granting special remission of sentences to various categories of prisoners mentioned therein The preamble of this G. O. expressly limits its operation to "prisoners who are convicted of offences against laws relating to matters to which the executive power of the State extends . The jail authorities, obviously misinterpreting the aforesaid G. O., granted the benefit of remission thereunder to prisoners: B. Sitaramireddi, M. Rangareddi, K. Balaram and T. Mallikharjundu and released them from jail. The mistake came to the notice of the Inspector-General of Prisons, and, as a result of his intervention, the release of the petitioner and another prisoner, K. E. Lakshman, was stopped and they are still undergoing the remaining terms of their sentences. The petitioner submitted several applications to the State Government, urging it to release him in exercise of its power of clemency under Section 401, Criminal Procedure Code, but without success. The petitioner moved the High Court of Andhra Pradesh by application under Section 491 (1), (a), and (b) of the Code of Criminal Procedure, which was dismissed by judgment, dated 18th January, 1973.

3. The petition has been opposed by the respondents on the ground that the State Government has no power to remit the sentence of the petitioner, who was convicted of offences relating to a matter, which was within the sphere of the executive power of the Union and not of the State. It has also been averred that the aforesaid four prisoners were released owing to a mistake on the part of the jail authorities and they are liable to be remanded to undergo the unexpired terms of their sentence, if the State Government cancels the remission granted to them by mistake.

4. Section 401 (1), Criminal Procedure Code, gives power to the appropriate Government to suspend the execution of the sentence, or to remit the whole or any part of the punishment to which a person convicted of an offence has been sentenced. Its sub-section (6) provides:

"The appropriate Government may, by general rule of special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with....

5. Section 402 (3) of the Code defines appropriate Government thus:

"In this section and in S. 401, the expression appropriate Government shall mean-

(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (4A) of Section 401 is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government and

(b) in other cases, the State Government.

6. Article 161 of the Constitution gives power to the Governor of a State, "to grant pardons, reprieves, respites or remissions