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Andhra Pradesh High Court
Judges : P.KODANDA RAMAYYA
V.RAGHAVENDRA RAO - Appellant
Versus
State OF A.P.REPRESENTED BY THE SECRETARY TO GOVT.HOME (PRISONS-CJ DEPT.HYDERABAD. - Respondent
Decided On : 12-11-84
PAROLE - POWER OF STATE GOVERNMENT - SUSPENSION OF SENTENCE - RULE 974 OF A. P. PRISONS RULES AND RULE 23 OF SUSPENSION OF SENTENCE AND PAROLE RULES, 1981 - VALIDITY - CONFLICT OF JURISDICTIONS - INTERPRETATION OF STATUTORY PROVISIONS - EXECUTIVE AND APPELLATE AUTHORITY - HARMONIZATION OF PROVISIONS - SECTION 432(5) AND SECTION 389 OF THE CODE OF CRIMINAL PROCEDURE, 1973 (2 OF 1974) - SCOPE AND APPLICABILITY - DISTINCTION BETWEEN CONSTITUTIONAL POWER AND STATUTORY POWER - EXERCISE OF POWER - REASONABLENESS, BONA FIDE AND WITHOUT NEGLIGENCE - ABUSE OF POWER - JUDICIAL REVIEW.
Fact of the Case:
The petitioner challenged the powers of the State Government to suspend the sentence and release prisoners on parole when their appeal against the conviction was pending in the High Court. The State Government had released six prisoners convicted of murder on parole for two months and subsequently extended the parole period thrice, despite the fact that they were not entitled to parole under the rules and that the High Court had refused to grant them bail. The petitioner alleged that the release of the prisoners was arbitrary and capricious and was done with a view to get support from CPI to his Telugu Desam party in Krishna district.
Finding of the Court:
The court held that the State Government did not have the power to suspend the sentence and release the prisoners on parole when the appeal against their conviction was pending in the High Court. The court held that Rule 974 of the A. P. Prisons Rules and Rule 23 of the Suspension of Sentence and Parole Rules, 1981, which purported to confer such power on the State Government, were ultra vires the statutory powers of the State Government and were void. The court also held that the impugned orders releasing the prisoners were passed in violation of the statutory rules and amounted to an abuse of power.
Issues: 1. Whether the State Government has the power to suspend the sentence and release prisoners on parole when their appeal against the conviction is pending in the High Court? 2. Whether Rule 974 of the A. P. Prisons Rules and Rule 23 of the Suspension of Sentence and Parole Rules, 1981, are valid? 3. Whether the impugned orders releasing the prisoners were passed in violation of the statutory rules and amounted to an abuse of power?
Ratio Decidendi: 1. The power to suspend a sentence and release a prisoner on parole is a statutory power conferred on the State Government under Section 432(5) of the Code of Criminal Procedure, 1973 (2 of 1974). However, this power cannot be exercised when an appeal against the conviction is pending in the High Court, as the appellate court has exclusive jurisdiction to deal with the matter under Section 389 of the Code of Criminal Procedure, 1973 (2 of 1974). 2. Rule 974 of the A. P. Prisons Rules and Rule 23 of the Suspension of Sentence and Parole Rules, 1981, which purport to confer power on the State Government to suspend the sentence and release prisoners on parole during the pendency of an appeal, are ultra vires the statutory powers of the State Government and are void. 3. The impugned orders releasing the prisoners were passed in violation of the statutory rules and amounted to an abuse of power, as they were passed without any regard to the relevant factors and without considering the objections raised by the petitioner.
Final Decision: The court struck down Rule 974(2) of the Prisons rules and Rule 23 of the suspension of Sentence and parole Rules of 1981 as being ultravires the statutory powers of the State Government and directed the respondents to take steps forthwith to arrest respondents 4 to 8 and put them in Central jail rajahmundry where they were undergoing imprisonment and report the same to this Court through the Superintendent of that jail.
( 1 ) IN this writ petition the powers of the State Government to suspend the sentence and release prisoners on parole when their appeal against the conviction is pending in this Court is questioned; rather an extraordinary situation releasing prisoners in totol disregard of statutory rules is noticed in this case.
( 2 ) THE petitioner states that he belongs to Yarlagadda village and respondents 3 to 8 and fourteen others were charged for murder and the sessions Judge Machilipatnam convicted respondents 3 to 8 under Sec. 302 read with Section 149 I. P. C, and for other charges and sentenced to life imprisonment and the said accused who were convicted preferred an appeal Crl. A. No. 241 of 83 on the file of this Court and the State government preferred an appeal against the other accused who are acquitted. The request of the accused to release them on bail pending the appeal was rejected on 25-3-83 by this Court. However only one accused i. e. , 7th respondent herein was released on bail for a period of two weeks on the occasion of the death of his father but however the State Government released the respondents on the. ground of domestic financial problems which can never be a ground for release and the first order of release Was made on 22-9-1983 and the petitioner is not aware of the other orders of release. But the accused who are very powerful people were getting extension of parole from time to time without surrendering and they are still in the village harassing the witnesses who gave evidence against them in the criminal case and the release of prisoners for two months and subsequent extensions of parole is clearly in contravention of the A. P. Prisons Rules of 1979 and the accused are members of C. P. I. political party and supporters of Telugudesam party and the release of these prisoners by the Chief Minister is arbitrary and capricious and was done with a view to get support from C. P. I, to his Telugu Desam party in Krishna district. Rule Nisi was issued on this petition on 8-8-1984 and when the direction petition came up before me for the first time the learned Government Pleader represented that after 30th June, 1984 no further extensions were given by the State Government and this writ petition was filed after the expiry of the period of parole and challenging the original order granting the parole on 22-9-1983 and hence the petition has become infructuous.
( 3 ) THE petitioner s counsel on the other hand submitted that he is not aware of the subsequent orders of extension and even after the expiry of the period fixed in the subsequent orders of extension the accused are still in the village as free citizens and this court should give a direction to re-arrest them and direct the State Government to enforce the term of imprisonment strictly. He also raised the question that the State government has no power to release the prisoners undergoing imprisonment for life when the appeal preferred by them is pending in this Court.
( 4 ) INITIALLY on the question of procedure I have also heard the public Prosecutor, Hovewer I gave notice to the Advocate General and also heard him on the validity of Rule 974 of the A. P. Prisons Rules and rule 23 of the Suspension of Sentence and Parole Rules, 1981.
( 5 ) A counter affidavit was filed after arguments were heard as the factual position of the surrendering of the prisoners is necessary. It is stated in the conter affidavit that out of six persons only one prisoner surrendered and the remaining prisoners are overstaying on patole since 1-7-1984 and this counter affidavit was sworn to on 29-11-1984. The other contention raised in the counter affidavit is that the petition has become infructuous as the period fixed in the original order of release has already expired and no order was passed extending the period after 30-6-1984. It is also averred that the State Government has got power under the relevant rules to suspend the sentence pending the appeal. T
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