W. P. No. 4090 of 1992

6th April, 1992.

Petitioner Counsel: G. Peddababu and Ch. Anjireddy, for
Respondent Counsel: Govt. Pleader, for Home (for Nos. 1, 2, 4) and R. Venugopal Reddy, ( for No. 3), .

Cases Cited:
1991 Cri LJ 2483,AIR 1991 SC 1792,1991 AIR SCW 1826 [Para 21]
1990 Cri LJ 1464,AIR 1990 SC 1396 [Para 24]
1989 Cri LJ 889,AIR 1989 SC 1011 [Para 21]
1985 Cri LJ 1179,AIR 1985 SC 1050 [Para 23]
1985 Cri LJ 1009,(1985) 1 Andh LT 201 [Para 15]
1985 Cri LJ 1890,(1985) 1 Andh LT 330 [Para 18]
1982 Cri LJ 1571,AIR 1982 SC 1195 [Para 21]
1981 Cri LJ 324,AIR 1981 SC 764 [Para 27]
1980 Cri LJ 1440,AIR 1980 SC 2147 [Para 13]
1979 Cri LJ 1410,AIR 1979 SC 1867 [Para 13]
(FB), 1975 Cri LJ 902,AIR 1975 PunjHar 148 [Para 21]
1966 Cri LJ 586,AIR 1966 SC 657 [Para 26]
1961 (1) Cri LJ 173,AIR 1961 SC 112 [Para 21]
1961 (1) Cri LJ 736,AIR 1961 SC 600 [Para 25]
AIR 1961 SC 334 [Para 34]
1954 Cri LJ 1370,AIR 1954 Mad 911 [Para 21]

JUDGMENT

ORDER :-Petitioner is the widow of late Sri Thirumalareddy Showrireddy, who was murdered at 7.00 p.m. on 5-10-1987. Police had registered crime No. 86/87 of Gurajala Police Station against the 3rd respondent and 15 others under Ss. 302 read with S. 34, IPC, as also under Ss. 324 and 326, IPC. The crime was tried as S.C. No. 351/88 by the 1st Addl. Sessions Judge, Guntur. It was subsequently transferred to the Court of Session, Ongole, where it was re-numbered as S.C. No. 11/91. The Sessions Judge, Ongole in his judgment dt. 4-10-1991 found the 3rd respondent and three others guilty of offence punishable under S. 302 read with S. 34, IPC. He sentenced them to undergo imprisonment for life

and convicted two other accused under Ss. 324 and 326. The Sessions Judge acquitted the other accused. 3rd respondent and other accused who were convicted filed Criminal Appeal No. 1035/91 against the conviction and sentence. That appeal is pending. They also filed Criminal M.P. No. 2611/91 for suspension of the sentence and for their consequential release on bail, pending disposal of the appeal. This Court dismissed the application in so far as it related to 3rd respondent and three other accused (A-1 to A-4) and granted bail in respect of A-5 and A-6 who were convicted only under Ss. 324 and 326 of the I.P.C. 3rd respondent who was the 1st accused in the Sessions case had been elected as Member of the State Legislature from Gurajala Constituency. Since his application for bail was not granted, 3rd respondent was sent to Sub-Jail, Ongole. According to the petitioner, the 3rd respondent, using his position as M.L.A, got himself admitted in Government hospital Ongole on 5-10-91. He was subsequently referred to the Government General Hospital, Guntur and was housed in a special ward. On the allegation that the 3rd respondent had no ailment which justified his continuance in the hospital, petitioner had filed W.P. No. 3760/92, which was admitted on 17-3-1992. On 16-3-1992, Government issued G.O. Rt. No. 738 Home (Prisons-C) Department, dt. 16-3-1992, suspending the sentence of the 3rd respondent from the date of release till the end of the Assembly Session, for the purpose of enabling him to attend the session. The order was passed purportedly under S. 432, Cr. P.C. 3rd respondent was released soon thereafter from the General Hospital, Guntur. Petitioner submits that the hospital authorities have been accommodating the 3rd respondent on the pretext of ailment which he was not suffering from.

2. Petitioner submits that the order of the State Government under S. 432, Cr. P.C. is illegal and vitiated by malafide exercise of power. She also submits that the Government should not have exercised its power under S. 432 of the Criminal P.C. Petitioner submits further that the Government had no power to suspend the sentence under S. 432, Cr. P. C. without reference to the Court which tried him. She submits that the Government should not have exercised its power for the purpose of subverting an order of the appellate Court refusing to grant bail to the 3rd respondent during the pendency of the appeal. She also submits that the Government granted suspension of sentence of the 3rd respondent only due to extraneous and irrelevant political influences. On these grounds petitioner submits that the order is liable to be set aside. She therefore seeks a declaration that G.O. Rt. No. 738 Home (Prisons-C) Department, dt. 16-3-1992 issued by the 1st respondent is arbitrary, illegal, void and without jurisdiction.

3. This writ Petition was filed on 23-3-92. It was numbered and posted for admission on 24-3-1992. Government Pleader took notice before admission and requested time for filing counter. My learned brother Syed Shah Mohd. Quadri, J., ordered that in view of the urgency of the matter, the Writ Petition will be posted on 26-3-92 at 2.15 P.M. On 27-3-92, after hearing the matter at some length, Quadri, J., ordered the matter to be posted before another Judge on Monday. It was thereafter that the matter came up before me on 30-3-92. Even though counsel for the 3rd respondent had taken notice, his name was not printed in the list on that day. He therefore sought time. Counsel for the petitioner submitted that the Session of the Assembly was likely to close the very next day and therefore it was essential that the matter was heard immediately. I requested the Government Pleader to verify whether the Session was closing on that day or the next day. I was told that the Session was not likely to close on 30th and was likely to continue. On the basis of that submission, I adjourned the matter for hearing on 31-3-92. On that day, I heard counsel for the petitioner, the Government Pleader and Sri R. Venugopal Reddy appearing for the 3rd respondent.Apparently, on the assumption that the Session of the Legislative Assembly was likely to continue. I posted the matter for further arguments on the request of the counsel for the 3rd respondent, to 1-4-92. In the meantime, the session of the Legislative assembly

was adjourned sine die on 31-3-92. Counsel for the petitioner insisted that there shall be a decision on the validity of the order passed by the State Government purportedly under S. 432 of the Criminal P.C. He submitted that unless the point of jurisdiction is clarified, the 3rd respondent who wields considerable influence at the political level, is likely to stay out of the jail by repeated exercise by the State Government of the alleged power under S. 432, Cr. P.C. in a wanton and irresponsible manner. I, therefore heard counsel on both sides at great length.

4. It is necessary to refer to S. 432 of the Criminal P.C. to understand the scope of the submissions. That provision is in the following terms:

"E. Suspension, remission and commutation of sentences :

432. Power to suspend or remit sentences:-

(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.

(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.

(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.

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

Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and-

(a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail : or

(b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.

(6) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.

(7) In this section and in S. 433, the expression "appropriate Government" means--

(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government:

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed."

5. Petitioner submits that the power of the Government to suspend or remit sentence is conditioned by the provisions contained in

sub-sections (2) above and the proviso to subsection (5). He submits that in the context of the conferment of power on the Government, the conditions contained in those provisions have to be read as limiting the exercise of such power. He submits further that any condition limiting the exercise of the power has to be read as mandatory irrespective of the terminology used in the conditions in the provision. It is his submission therefore that the word 'may' in sub-sec. (2) of S. 432 has to be read as 'shall' making it obligatory for the Government to seek the opinion of the trial judge in the present case to state his opinion on the application for suspension or remission of sentence.

6. He submits that the further condition contained in the proviso that in the case of a male adult convict in jail, no such petition shall be entertained, unless the convict files petition for suspension or remission of sentence through the officer incharge of the jail is unmistakably mandatory. Counsel for the petitioner submits that both the above conditions are inescapably obligatory and the Government could not have exercised the power to suspend or remit the sentence, otherwise than in compliance with the above provisions.

7. He referred me to S. 389 of the Code which provides for suspension of sentence pending appeal and release of the appellant on bail. According to him, during the pendency of an appeal, the only authority who has got the power to suspend the sentence and order release of the appellant/ accused on bail is the appellate Court. The Government was not right in exercising the power under S. 432, Cr. P.C. so as to nullify the power of the appellate Court under S. 389 of the Code. It is also his submission that in any case, it was obligatory for the 3rd respondent to disclose the fact that an appeal was pending before this Court, that he filed an application for bail in this Court and the court refused to release him on bail in its order dt. 22nd October, 1991. He submits that had the Government adverted to this fact, it would not have exercised the power under S. 432 of the Code,

8. The Assistant Secretary to Government, Home (Prisons) Department has filed a counter-affidavit on behalf of the 1st respondent. According to him, the only consideration in passing the impugned order was that the petitioner who was a member of the State Legislature had to participate in the deliberations of the Legislative Assembly during the budget session and the vots on Account for the year 1992-93. It was apparently due to that fact alone that the application filed by the applicant on 6-3-92 was sanctioned by the Government, so as to enable the 3rd respondent to attend the present Assembly Session. He also asserts the legal position to be that-

"The powers of remission and commutation of sentence are empowered on the appropriate Government while exercising its powers under Section 432 of Cr. P.C. while exercising the powers under S. 432 of the said Act, the remission rules and the like provisions stand excluded so far as the lifers punished for capital offences are concerned. It is only the appropriate Government under S. 432, Cr. P.C. that can cut down the sentence awarded by the Court, like the President of India under Art. 72 and the Governor of the State under Art. 161 of the Constitution of India."

The 3rd respondent had not filed any counter-affidavit.

9. The Government Pleader has produced the file leading up to the impugned order. That file discloses the following facts:

10. On 6-3-92 3rd respondent filed an application addressed to the Hon'ble Minister for Home, Government of Andhra Pradesh, stating that he was elected to the Legislature from Gurazala constituency on behalf of Congress, that he was involved in a murder case in the year 1988 which took place in his native place Rentachinthala, due to political vendetta, that in spite of his efforts to prove that he was not responsible for the murder case he was convicted for life during October, 1991. 3rd respondent stated therein that-

"eversince I am in Ongole Jail. Later on due to health reasons I am shifted to Guntur

General Hospital. As I am in Hospital under Police custody I could not serve my people properly. Further, the Andhra Pradesh Assembly, it is learnt, is going to meet on 16-3-1992. To represent certain problems of my constituency my presence in Assembly is inevitable."

3rd respondent therefore requested to grant Parole for one month so as to represent the people in the Assembly. Government seems to have sought legal opinion and it was rendered without reference to the statutory provisions, on the assumption that there was nothing improper in granting parole to the 3rd respondent to last only till the Assembly Session was over. Pursuant to that, Government passed the order which is impugned herein.

11. Counsel for the petitioner invited my attention to a number of decisions of the Supreme Court and this Court on the amplitude of the power of State Government and the Court to release convicts under the Criminal Procedure Code and the Constitution of India. The first of these decisions is K.M. Nanavati v. State of Bombay, AIR 1961 SC 112 : (1961 (1) Cri LJ 173). The question which arose for consideration in that case was the apparent conflict between Arts. 161 and 142 of the Constitution of India. The Court held that (Para 18)-

to avoid a conflict between the two powers it must be held that Art. 161 does not deal with the suspension of sentence during the time that Art. 142 is in operation and the matter is subjudice in the Supreme Court."

The Court also held (para 21) :

"So long as the judiciary has the power to pass a particular order in a pending case, to that extent, the power of the Executive is limited in view of the words either of S. 401 and 426 of the Criminal P.C. and Arts. 142 and 161 of the Constitution. If that is the correct interpretation to be put on these provisions in order to harmonise them, it would follow that what is covered in Art. 142 is not covered by Art. 161 and similarly what ''is covered by S. 426 is not covered by S. 401 . "

Applying the above principle to the facts of the present case, the power under S. 432 of the Criminal P.C. which corresponds to S. 401 of the old Code is not available for exercise during the period when an appeal is pending before this Court.

12. Counsel for the petitioner submits that the 3rd respondent has no special rights as a legislator and he cannot claim or be granted any privilege or preference other than due to an ordinary criminal or convict under the criminal law. He submits that he cannot plead suspension or remission of sentence only due to the fact that he is a member of the Legislative Assembly. He invited my attention to K. Ananda Nambiar v. Chief Secretary to the Government of Madras, AIR 1966 SC 657 : (1866 Cri LJ 586) in which a Constitution Bench of the Supreme Court considered the validity of Rule 30(1)(b) of the Defence of India Rules, in so far as it permitted detention of members of Indian Legislatures and held the same was not invalid on the ground of contravention of alleged constitutional rights of members of Parliament under the provisions of the Constitution of India by preventing such members from participating in the business of Parliament. The Court held (Para 18):

"rights accruing to Members of Parliament after they are elected are not constitutional rights, in the strict sense, and they are not fundamental rights at all. It may be that sometimes in discussing the significance or importance of the right of freedom of speech guaranteed by art. 105(1) and (2), it may have been described as a fundamental right, but the totality of the rights cannot claim the status of fundamental rights at all."

Petitioner submits that the 3rd respondent had no right to insist that in spite of his conviction he shall be enabled to attend the Legislative Assembly for which purpose the Government have exercised the power under S. 432, Cr. P.C.

13. This Court had occasion to consider the same question in two decisions V. Raghavendra Rao v. State of A. P., (1985) 1 Andh LT 201 : (1985 Cri LJ 1009) and

Kavuri Sudesthamma v. State of A. P., (1985) 1 Andh LT 330 : (1985 Cri LJ 1890). In the former Kodandaramayya, J. on a reference to K.N. Nanavati (1961 (1) Cri LJ 173 (SC) held that the Government had no power to grant suspension or remission of sentence in favour of an accused whose appeal was pending before the Court. In the latter decision Lakshminarayana Reddy, J., held that while exercising power under S. 432 (2), for suspension or remission, the Government shall call for the opinion of the trial Court or the appellate Court which had confirmed the conviction and sentence. It was held (at p. 1893 of 1985 Cri LJ 1890) (Andh Pra):

"if the Government is inclined to entertain the application for suspension or remission of the sentence it is bound to call for the opinion of the court and especially when rules are framed under S. 432(5) of the Criminal P.C. in what manner the parole is to be granted to the Prisoners."

I am in respectful agreement with the above decisions of this Court and held that it is obligatory on the part of the Government to comply strictly with sub-sec. (2) when it exercises its power under S. 432. I will deal with the two decisions which the 3rd respondent has cited to support his submission. According to me/those decisions rested on peculiar facts and cannot be accepted to lay down a different principle of law.

14. Yet another submission of counsel for the petitioner is that exercise of power under S. 432, Cr. P.C. in respect of persons convicted and to life imprisonment are conditioned by proviso to sub-sec. (5) of S. 432 as also Sec. 433-A of the Criminal P.C. He submits that the 3rd respondent deliberately suppressed the fact of refusal of his bail application and refused to comply with the Parole and Remission Rules only to by-pass the Court. It is also his submission that the 3rd respondent deliberately departed from the usual procedure to avoid any reference to S. 433-A of the Code.

15. Counsel for the 3rd respondent submitted that the absolutes of the proposition contained in Nanavati (1961 (1) Cri LJ 173 (SC) requires reconsideration. He invited my attention to Sarat Chandra Rabha v. Khagendranath, AIR 1961 SC 334. The question which the Court considered was whether remission of sentence under S. 401 of the Criminal P.C. will have the effect of removing the disqualification arising from conviction for a period of two years? the Court held (at p. 336 of AIR):

"An order of remission does not in any way interfere with the order of the Court, it affects only the execution of the sentence passed by the Court and frees the convicted person from his liability to undergo the full terms of imprisonment inflicted by the Court, though the order of conviction and sentence passed by the Court still stands as it was. The power to grant remission is executive power and cannot have the effect which the order of an appellate or revisional Court would have of reducing the sentence passed by the trial Court and substituting in its place the reduced sentence adjudged by the appellate or revisional Court."

According to counsel this passage shows that the separate and independent power of the executive can still be exercised notwithstanding the power of the judiciary to convict or confirm the conviction of the accused. He also relied on three other decisions. Re : Maddela Yerra Channugadu, AIR 1954 Madras 911 (1954 Cri LJ 1370), Hukum Singh v. State of Punjab, AIR 1975 Punj and Har 148 : (1975 Cri LJ 902) (FB), according to both of which the provisions of S. 432(2) (S. 401 of the old Code) are not mandatory but only directory. He also referred to Dineshchandra Jamnadas Gandhi v. State of Gujarath, AIR 1989 SC 1011 : (1989 Cri LJ 889) in support of his submission that the Government is entitled to exercise the power of remission even in spite of the appellate powers of the Supreme Court. He submits further that decisions of the Supreme Court which have followed K.M. Nanavati (1961 (1) Cri LJ 173) supra may not reflect the correct position in law.

16. In re: Maddela Yerra Channugadu (1954 Cri LJ 1370) (Mad) dealt with a case where the State Government, in exercise of its powers of clemency, granted general amnesty

to all the prisoners in the jails in the State to celebrate the inauguration of Andhra State. The Court held that in view of the reasons for which the prisoners in question were given remission of sentence, it was quite irrelevant whether the opinion of the Presiding Judge of the Court should have been sought before exercising such power under S. 401(2) (present 432 (2) Cr. P.C.). The Division Bench in that case held that:

"Cases can be visualised where this extraordinary- executive power of clemency is exercised keeping in view the multiple reasons which may have no relevancy with the facts as emerged in the trial of a particular case in which the prisoner was convicted."

Obviously, therefore, the Madras High Court was approximating the power under S. 40l, Cr. P.C. to suspend or remit sentence as extraordinary executive power referrable to Art. 161 of the Constitution of India. The decision rested on the facts of that case and cannot be considered as laying down a different proposition of law than in Nanavati (1961 (1) Cri LJ 173) (SC). In any case that earlier Madras decision cannot hold good after the pronouncement in Nanavati's case.

17. In Hukum Singh (1975 Cri LJ 902) (supra) a Full Bench of the Punjab and Haryana High Court held that the power under S.401 of the Criminal P.C. was essentially and basically an executive power and the Courts have no say in the matter. Unfortunately, reference made in the decision allegedly to K. M. Nanavati (1961 (1) Cri LJ 173)(SC) was really to Gopal Vinayak Godse v. State of Maharashtra AIR 19661 SC 600 : (1961 (1) Cri LJ 736). The Full Bench of the Punjab and Haryana High Court proceeded to approximate the power under S. 401 to the power of clemency under Art. 72 or 161 of the Constitution of India and held that those powers could not be held to be controlled by S. 401 of the Code. It is difficult to accept this reasoning in the light of the positive finding contained in the Constitution Bench decision in Nanavati's case (1961 (1) Cri LJ 173) (SC). Sarat Chandra Rabha (AIR 1961 SC 334) does not seem to support the proposition which counsel for the 3rd respondent advances. On the other hand the Court held that remission of sentence in exercise of executive power did not have any effect on the conviction or the length of sentence; its only effect was to order premature release of the convict without releasing him from any of the disabilities of his conviction and sentence. In other words, remission of sentence did not have any impact on the sentencing process, I am at a loss to understand how that decision renders any assistance to the 3rd respondent.

18. Dineshchandra Jamnadas Gandhi (1989 CR LJ 889) (SC) rests on its very peculiar facts. A trader was convicted for an offence under Section 16(1)(A)(i) of the Prevention of Food Adulteration Act. The Court found that as a matter of fact the whole-saler, the manufacturer, who ought to have been prosecuted had escaped. After referring to the observations of Krishna Iyer J, in Inderjeet v. U.P. State, AIR 1979 SC 1867: (197 Cri LJ 1410), the Court observed (at pp. 896-97 of 1989 Cri LJ 889):

"The present case, as Sri Ganatra rightly pointed out, is one where bigger offenders who manufactured the supari and who distributed them to the retailers have gone scot free. Unfortunately, appellant did not and perhaps could not, invoke the benevolent provisions of S. 19(2) of the Act. The offence was ten years ago and the appellate Court had acquitted the appellant. The expression 'Fruit Products" in the context of what the Delegated legislative authority really meant and wanted to convey was not a model of precision. The degree of precision should be such that not only those who read it in good faith understand but also that those who read it in bad faith do not misunderstand."

It was in those circumstances that the Supreme Court directed the State Government to exercise its executive power of remission of the substantive sentence of Imprisonment under S.432, Cr.P.C. This decision does not in any way support the proposition urged by the 3rd respondent. Nor does it run counter to the observations contained in Nanavati's case(1961(1) Cri LJ 173) (SC). What is to be noticed is that the recommendation came on the termination of an appeal before the Supreme Court and the Supreme Court made the recommendation which fell strictly within S.432 (2) of the Code. The proposition of the 3rd respondent that the Executive power of the State in the matter of suspension or remission of sentence is the same as the power under Arts. 72 and 161 of the Constitution of India cannot gain

any support from the above decision. Nor can the submission that the provisions of S.432(2) is directory and not mandatory draw any sustenance.

19. Section 433-A was enacted by the Criminal Procedure Code Amendment Act, 1978 professedly for the purpose of bridging and controlling the powers of the Government to grant suspension or remission of sentence under S.432 of the Code. This is clear from the very wording of the section Which is as follows:

"433-A Restriction on powers of remission or commutation in certain cases :- Notwithstanding anything contained in Section 432, where a Sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment."

20. It is clear from the above provision that the wide and uncontrolled power of the State Government under S. 432 was sought to be reined in and restricted by S. 433-A: The effect of S.433-A is that the power of the Government under S. 432 is not available for exercise in cases (1) where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, and (2) where a Sentence of death imposed on a person has been commuted under S.433 into one of imprisonment for life. In those two circumstances, the convict shall not be released from prison unless he had served at least fourteen years of imprisonment.

21. The Supreme Court had occasion to consider the effect of the above provision in Maru Ram v. Union of India, AIR 1980 SC 2147 : (1980 Cri LJ 1440), Shidagouda Ningappa Ghandavur v. State of Karnataka, AIR 1981 SC 764:(1981 Cri LJ 324), State of A. P. v. G. M. Moray, AIR 1982 SC l195 : (1982 Cri LJ 1571), Bhagirath v. Delhi Administration, AIR 1985 SC 1050 :(1985 Cri LJ l179), State of Punjab v. Joginder Singh, AIR 1990 SC 1396 : (1990 Cri LJ 1464) and Ashok Kumar v. Union of India, AIR 1991 SC 1792: (1991 Cri LJ 2483).

22. Considering the challenge against S. 433-A as introduced by the amending Act of 1978, a Constitution Bench of the Supreme Court in Maru Ram, (1980 Cri LJ 1440) upheld its validity. Dealing with the contention whether S. 433-A restricts the power under Arts. 72 and 161 of the Constitution, the Court held that:

"the pardoning power is vested exclusively in the top executive, that shall not be restricted by any other legislative power".

The Court held (at p. 1467 of Cri. LJ.) .

"We hold that Ss.432 and 433 are not a manifestation of Arts.72 and 161 of the Constitution but a Separate, though similar power. S. 433-A by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like".

It was also observed (at p. 1468 of Cri. L.J.) :

"Although the remission rules or short sentencing provisions proprio vigore may not apply as against S. 433-A, they will override S.433-A if the Government, Central or State, guides itself by the self-same rules or schemes in the exercise of its constitutional power. We regard it as fair that until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking a desirable step, in our view the present remission and release schemes may usefully be taken as guidelines under Arts.72/ 161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinquents. S.433-A is itself treated as a guideline for exercise of Arts.72/ 161".

23. State of Punjab v. Joginder Singh, (1990 Cri LJ 1464)(SC),reiterated the proposition that the power under Arts. 72 and 161 of the Constitution of India being absolute cannot be fettered by any Statutory provision like Ss.432, 433, 433-A of the Code. The observations contained in Maru Ram, (1980 Cri LJ 1440) (SC), which I have extracted to the effect that S. 433-A of the Criminal P.C. shall be treated as a guideline for exercising

power under Arts. 72 and 161, does not loose its validity by reason of the decision in State of Punjab v. Joginder Singh, (1990 Cri LJ 1464) (SC).

24. In Ashok Kumar v. Union of India, (1991Cri LJ 2483) (SC),the effect of S. 433-A regarding suspension or remission came up for consideration. The Court observed after referring to the decision in Gopal Vinayak Godse, (1961(1) Cri LJ 736) (SC) as follows (at pp. 2493-94 of Cri LJ):

"It will thus be seen from the ratio laid down in the aforesaid two cases that where a person has been sentenced to imprisonment for life, the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and must be confined to the scope and ambit of the said rules and do not acquire significance until the sentence is remitted under S.432, in which case the remission would be subject to limitation of S. 433-A of the Code, or constitutional power has been exercised under Arts. 72/161 of the Constitution."

25. Even with respect to the power to commute sentence apparently in exercise of the clemency power, the Supreme Court held in Shidagouda Ningappa Ghandavur, (1981 Cri LJ 324 at p. 325) that:

"We do hope that even if the validity of S. 433-A of the Criminal Procedure Code is upheld by this Court, the Government will not, save for weighty reason, reduce or commute the sentence of the appellant to less than fourteen years, since, unquestionably, he has committed a very serious crime."

26. In State of A. P. v. G. M. Moray, (1982 Cri LJ 1571), the Supreme Court put the position beyond any controversy by stating that the effect of S. 433-A is that those governed by it shall not be released unless they have served a sentence of at least 14 years of imprisonment.

27. A Constitution Bench of the Supreme Court in Bhagirath v. Delhi Administration, (1985 Cri LJ 1179), held that the punishment being one for a term, set off the period of undertrial detention shall be only "subject to the provisions contained in S.433-A of the Criminal P.C.

28. It is clear from the above decisions that whenever the Government exercises its power under S. 432, it shall be subject to the provisions of S. 433-A in that event it will not be competent to the State Government to direct remission of sentence to a life convict before he serves 14 years of imprisonment. The only other exception perhaps may be the power of clemency conferred on the Governor under Art. 161 of the Constitution of India. As long as the decision in Nanavathi,(1961(1) Cri LJ 173) (SC) holds the field, that power will not be exercised during the pendency of an appeal before the appellate Court. It seems to me that the petitioner is right in her submission that the 3rd respondent obtained orders on the sly without informing the State Government of the relevant details and in a manner not sanctioned by law.

29. A perusal of the file and a reading of the counter affidavit of the State make out that they proceeded on the assumption that powers of remission and commutation of sentence under S.432, Cr. P.C. are wide and uncontrolled, that the remission rules and other like provisions stand excluded so far as the lifers punished for capital offences are concerned and that it is only the appropriate Government under S. 432, Cr. P.C. that can cut down the sentence awarded by the Court, like the President of India under Art. 72 and the Governor of the State under Art. 161 of the Constitution of India. It is clear that a deliberate attempt was made to so arrange the file as to justify this submission.

30. It is clear from the file which the Government Pleader has produced that the 3rd respondent filed his application on 6-3-92 to the Minister of Home directly without routing it through the jail Superintendent as was obligatory under the proviso to S.432, Cr. P.C. Even though he mentioned that he was convicted for life during October, 1991, and ever since he was in Ongole jail, he omitted his convict number. The file contains a copy of the Wireless Message dt. 7-2-92 to the Principal Secretary to the Government with reference to an Automax Message

No. 11361/ C1/91 dt. 10-1-92 - "regarding grant of parole to K. V. Narsi Reddy, M.L.A. Please state whether Sri K. V. Narsi Reddy has been taken into jail and if so the date and name of the Central jail may be informed urgently". There is yet another wireless Message No. 34024/Prl.C/91-5 dt. 12-3-92 from the Prl. Secretary, Home Department to the Superintendent of Police, Guntur. That message reads as follows:

"Refer Government Wireless message of even number dt. 7-2-92 regarding grant of parole to and details about the convict Sri K. V. Narsi Reddy, M.L.A. by return signal."

These messages are at pages 15 to 19 of the file. Page 11 with which the file begins, is an undated letter from the Inspector General of Prisons and Director of Correctional Services, Andhra Pradesh, Hyderabad, to the Principal Secretary to Government, Home Department. It seems to have been received in the Home Department in December, 1991 to the effect that -

'I have to state that Sri K. V. Narsi Reddy, M.L.A., Gurjala is not confined in any jail i.e. Central Prison, Rajahmundry, Sub-Jail, Gr. II, Guntur and Central Prison, Hyderabad."

The application of the petitioner dt. 6-3-92 is at page 23 of the file. Minister for Home received that application on the same day 6-3-92 and directed the Prl. Secretary, Home-

"to examine and put up"

Page 25 is the legal opinion to which I have made a passing reference earlier to the effect :

"The State Government is empowered to grant parole to the prisoner for the period of the Assembly Session and at any rate not exceeding one month."

That opinion was dt. 13-3-92. The draft of the wireless message dt. 16-3-92 is at page 29.That was addressed to the Superintendent, Sub-Jail, Ongole. Copies are marked to the Superintendent General Hospital, Guntur; S. P., Ongole : and Guntur and the D.C.P. (detective department) Hyderabad, the IGP and DCS, Hyderabad (By hand). A copy of the G.O. in Telugu is at page 27 of the files.

31. What has been produced before me is obviously not the complete file. That is evident from the fact that page numbering starts at page 11. Pages 11 to 21 apparently relate to an application for parole filed earlier by the 3rd respondent. It also appears to me that the reply sent by the Superintendent of Police to the query whether the convict Sri Narsi Reddy, M.L.A has been taken in to jail and if so, the name of the Central Jail has been kept out of this file. It is significant that wireless message dt.7-2-92 at page 17 follows the letter of the Inspector General of Prisons and Director of Correctional Services apparently dt. 27-12-1991 which the Government received soon there after in the same month. It looks as if the proposal to grant parole to the 3rd respondent could not proceed any further because of inconvenient disclosures made by the Superintendent of Police, Guntur. I also find an anxiety on the part of the 3rd respondent to scrupulously avoid any reference to the criminal appeal which is pending in this Court against the conviction and the application which he had filed along with the other accused for bail and which has rejected by this Court on 22-10-1991. ln the light of the above disclosures from the files, I am inclined to accept the submissions urged by the counsel for the petitioner that the 3rd respondent deliberately concealed the relevant facts in an anxiety to obtain suspension of sentence without reference to the trial Court.

32. Counsel for the 3rd respondent advanced a curious submission that a reference to the trial Judge under the proviso to S. 432, Cr. P.C. applies only when the convict was physically in jail and not if he was in the jail-ward in the hospital. Admittedly, the 3rd respondent was in the Government General Hospital in Guntur as a convict at the time when he submitted his application and also when the impugned order was passed. I do not find any substance in this submission, because the petitioner was in the prison-ward of the Guntur General Hospital as is evident from his own representation dt. 6-3-92.

33. A more curious fact is the mystery surrounding the legal opinion found in the file. I do not find any reference emanating

from the Home Department to the Law Department or any counsel. The opinion indicates an anxiety to oblige and not to expose the correct legal position with reference to the relevant statutory provisions and the number of decisions bearing on the question. I cannot escape a feeling that the file was deliberately manipulated to conceal more than it reveals.

34. On the basis of the above legal and factual position, I hold the Government order G.O. Rt. No. 738 Home (Prisons-C) Department, dt. 16-3-1992 was passed in an illegal and improper manner. I also find that the respondent obtained the order by concealing the relevant facts. It is evident that the Government acted in haste without proper consideration of the effect of the decisions bearing on the scope of the power under S. 432, Cr. P.C. and implications of exercise of power during the pendency of an appeal before this court in which the 3rd respondent had applied far and was refused release on bail. Even in respect of the power under Art. 161 of the Constitution of India, I have to hold in terms of the decision of a Constitution Bench of the Supreme Court in Maru Ram, (1980 Cri LJ 1440) and Shidagouda Ningappa Ghandavur,(1981 Cri LJ 324), that the provisions of S. 433-A may operate as a guideline in exercise of that power. In the light of Nanavathi, (1961(1) Cri LJ 173) (SC), the power under S. 432. Cr. P.C. may not be exercised during the pendency of an appeal and in any case without consulting the appellate Court. I also hold on the basis of Anandam Nambiar,(1966 Cri LJ 586)(SC), that a convicted legislator has no special right to claim immunity from or a relaxation in serving his sentence for life.

35. For all the above reasons, I quash the order of the Government G.O. Rt. No.738 Home (Prisons. C) Department dt.16-3-1992. I hope that this decision will provide sufficient guidelines for the State Government in exercise of the power under S. 432, Cr. P.C. in future. The Writ Petition is allowed as above with costs of the petitioner including advocate's fee of Rs. 500/- each payable by respondents 1 and 3.

Petition Allowed