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Katapagarsi Venkat Reddy Vs. the Inspector General of Prisons, Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberW.P. No. 3552 of 1982
Judge
Reported in1982CriLJ2020
ActsConstitution of India - Article 258(1); Indian Penal Code (IPC), 1860 - Sections 302; Code of Criminal Procedure (CrPC) , 1973 - Sections 432, 432(7), 432A and 433A
AppellantKatapagarsi Venkat Reddy
RespondentThe Inspector General of Prisons, Andhra Pradesh and anr.
Appellant AdvocateK.G. Kannabiram, Adv.
Respondent AdvocatePublic Prosecutor
Excerpt:
.....penal code and section 3 of explosive substances act though sentences were to run concurrently - state government is not empowered to exercise its powers of remission or suspension of sentences for life imprisonment under section 3 of explosive substances act - sentences ordered to run concurrently cannot become consecutive - held, no relief can be granted to convict. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action..........prior to 17-12-1978 the g.o. is applicable to the convict and he is entitled to be released. the state government on an erroneous interpretation of section 7 of the act read with section 432, cr.p.c. is refusing to release the convict. it further avers that under article 258(1) of the constitution of india the central government has delegated the power to the state of andhra pradesh by blanket notification entrusting the power of proceeding with the trial of any person for any offence against the explosive substances act within the meaning of section 7 of the said act. therefore, the state government would also be competent to exercise all incidental powers including the commutation or remission of sentences. hence, the 'appropriate government' under section 432, cr.p.c. would be the.....
Judgment:

Seetharama Reddy, J.

1. This petition is to release Gutha Narayanappa C. No. 1422 in the Central Prison, Chenchalguda, Hyderabad, by issuing a writ of Habeas Corpus or any other appropriate writ of direction.

2. The petitioner's case is that the convict Gutha Narayanappa was convicted in S.C. No. 28/71 under S. 302, I.P.C. and S. 3 of the Explosive Substance Act (hereinafter referred to as the Act) and sentenced to life imprisonment for each of the offences, though to run concurrently. Appeal therefrom was, however, dismissed. Prior to the sentence he was under remand for a period of 11 months and 22 days. While undergoing the sentence of life imprisonment, the convict earned remission amounting to three years. The convict has already spent about 10 years in prison. While so, the Government of Andhra Pradesh in commemoration of the 25th anniversary of the formation of the State of Andhra Pradesh and in exercise of its powers under section 432, Cr.P.C. issued G.O. Ms. No. 557 dated 30-10-1980 remitting and reducing the sentence of various categories of prisoners. Para 2 of the said Government order inter alia states - 'Except the prisoners sentenced for life who are governed by Section 433-A, Cr.P.C. all other convicts who have undergone a total sentence of five years as on 31-10-1980 shall be released.'

3. Para 3 of the said G.O. also lays down.

'The remission and reduction of sentence ordered in para 2 above will also apply to prisoners, who have been convicted by Courts situated within the State of Andhra Pradesh and are undergoing sentences in other States, but shall not apply to the following categories of prisoners.

(1) Prisoners convicted and sentenced by Courts situated outside the State of Andhra Pradesh.

(2) Prisoners convicted of offence against a law relating to matter to which the executive power of the Union extends; and

(3) Prisoners convicted for offence under sections 120-B, 121 to 130, 359 to 377 and 395 to 402, I.P.C.'

4. Since, the petition proceeds to allege, Section 433A, Cr.P.C. as per the settled decision of the Supreme Court, is not applicable to this Court the convict being sentenced to life imprisonment prior to 17-12-1978 the G.O. is applicable to the convict and he is entitled to be released. The State Government on an erroneous interpretation of Section 7 of the Act read with Section 432, Cr.P.C. is refusing to release the convict. It further avers that under Article 258(1) of the Constitution of India the Central Government has delegated the power to the State of Andhra Pradesh by blanket notification entrusting the power of proceeding with the trial of any person for any offence against the Explosive Substances Act within the meaning of Section 7 of the said Act. Therefore, the State Government would also be competent to exercise all incidental powers including the commutation or remission of sentences. Hence, the 'appropriate Government' under section 432, Cr.P.C. would be the State Government and so the convict is entitled to the benefit of the G.O.

5. The counter averments inter alia are : Section 432-A, Cr.P.C. does not apply to the said prisoner as he was convicted prior by 17-12-1978 as the Supreme Court has observed in Crl.A. No. 247/81, dated 26-3-1982 : (reported in 1982 Cri. LJ 1249) that all the prisoners who have completed five years of actual sentence as on 31-10-1980 are entitled for release. Para 3(2) of G.O. Ms. No. 557 dated 30-10-1980 states that the G.O. shall not apply to 'prisoners-convicted of offence against a law relating to a matter to which the executive power of the Union extends.' It is true that the Central Government have delegated the power to the State Government to prosecute cases under the Explosive Substances Act. But, it does not delegate powers under section 432, Cr.P.C. to remit, reduce or suspend the sentences. Hence the Central Government alone is the competent authority to exercise powers under S. 432, Cr.P.C. Since the sentence of life imprisonment imposed on the convict was both under section 302, I.P.C. and Section 3 of the Explosive Substances Act and were directed to run concurrently, the State Government is the appropriate Authority to remit the sentence of life awarded under section 3 of the Explosive Substances Act.

6. The short but important point that arises is whether it is competent for the State of Andhra Pradesh to exercise its power under G.O. Ms. No. 557 dated 30-10-1980 to remit, reduce or suspend the sentences of imprisonment for life awarded for the offences committed both under section 302, I.P.C. and Section 3 of the Explosive Substances Act, though the sentences are to run concurrently.

7. The argument in the main of Sri K. G. Khannabhiram the learned counsel for the petitioner is that when once the delegation has been made under Section 7 of the Explosive Substances Act to prosecute persons for committing offences under the said Act, it takes in its sweep the entire gamut of powers including the power to suspend or remit whole or any part of punishment, as the 'appropriate Government' contemplated under Section 432(7), Cr.P.C. is the Government of the State. Secondly as ancillary to the main contention it was argued that any other interpretation placed upon the notification delegating the power to the State Government under section 7 of the Explosive Substances Act and also S. 432(7)(a), Cr.P.C. would be amounting to hold that the sentences awarded for two different offences under two different enactments become consecutive and not concurrent.

8. Before adverting to the arguments advanced by the learned counsel, the statutory provisions which are relevant, may be noticed. Section 7 of the Explosive Substances Act, reads.

'7. Restriction on trial of offences :- No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the Central Government.'

Section 432(7)(a), Cr.P.C. reads :

'432(7). In this section and in Section 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) ........ .......... ......... ........'

Article 258(1) of the Constitution of India, provides.

'258(1) Notwithstanding anything in this Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends.'

9. The President in exercise of the powers conferred by Clause (1) of Art. 258 of the Constitution, has delegated to the State Government the function of the Central Government under section 7 of the Explosive Substances Act and by virtue of the said delegation the Government of Andhra Pradesh has given its consent to the trial of the accused convict herein (this is not in dispute) Item 5 of List I (Union list of the 7th Schedule to the Constitution contains the following 'arms, firearms, ammunition and explosives' Items 1 and 2 of List 3 (concurrent list) of the 7th Schedule, to the Constitution contain inter alia 'Indian Penal Code and Criminal Procedure Code' respectively.

10. The cardinal point is what construction should be placed upon the contents in para 3 of (2) of G.O. Ms. No. 557 dated 30-10-1980, which lays down.

'The remission and reduction of sentence ordered in paragraph 2 above will also apply to prisoners, who have been convicted by Courts situated within the State of Andhra Pradesh and are undergoing sentences in others states, but shall not apply to the following categories of prisoners.

(2) Prisoners convicted of offence against a law relating to matter to which the executive power of the Union extends; and

(3) ... .. .. .. ...'

11. In our undoubted interpretation what becomes clear is that the accused in this case was convicted of an offence against the Explosive Substances Act, which is a law relating to a matter to which the executive power of the Union extends and that power of the Union Government since stands delegated to the State Government in virtue of the powers under Article 258(1) of the Constitution by the President, the State Government shall exercise all the powers conceived of under the Explosive Substances Act alone and none else. It cannot, therefore comprehend to cover cases where the State Government suspend or remit the sentences by virtue of the powers conferred under section 432(7)(a), Cr.P.C. as the delegation to the State Government by the President is only in relation to matters contemplated under the Explosive Substances Act. None of provisions enacted in the explosive Substances Act contemplates to commute, remit or suspend the sentences imposed on the convicts and there is no provision, explicit or inferential by any reference to the provisions enacted in Section 432, Cr.P.C. enabling thereby the State Government to exercise the powers conferred under the said section. It is true that one is faced with anomalous position that though the State Government can suspend or remit the sentence in case where the convict is undergoing life imprisonment under Section 302, I.P.C. but not where the same convict is undergoing life imprisonment under the Explosive Substances Act. But, it is not an avoidable anomaly as the statutory provisions are explicit and since the two enactments are under the protective umbrella of List 1 and List 3 respectively, there is no scope for any entrenchment by taking recourse to either 'liberal interpretation or purposive interpretation '. Each authority has to act within its respective field without the slightest overlap.

12. Section 3(8)(b)(i) of the General Clauses Act, reads.

'The Central Government shall in relation to anything done or to be done after the commencement of the Constitution, mean the President and shall include (i) in relation to functions entrusted under Clause (1) of Art. 258 of the Constitution, to the Government of State, the State Government acting within the scope of the authority given to it under that clause.'

This provision also comes to aid in constructing para 3(2) of G.O. Ms. O. No. 557 read with the delegation made under Art. 258(1) of the Constitution and Section 432(7) of the Criminal P.C. The width of the authority contemplated under section 3(8)(b)(i) of the General Clauses Act is restrictive of and circumscribed to Clause (1) of Art. 258 of the Constitution and therefore, the power conferred is restricted to the matters enumerated in the Explosive Substances Act. Therefore, the State Government's arms cannot be stretched so as to reach the provisions enacted in Section 432(7), Cr.P.C. seeking to exercise the power of remission or suspension of the sentences imposed under the Explosive Substances Act. The decision of the Supreme Court in Jayantial Amratlal v. F. N. Rana, : [1964]5SCR294 relied on by the learned counsel for the petitioner, is of little assistance to the case on hand. In para 12 of the decision cited supra on which reliance was placed, it is held :-

'For the purpose of this case it would serve no useful purpose to decide whether under Article 258(1) by a Presidential Notification only executive functions of the Central Government may be entrusted to the State or to an officer of the State. By the notification in question only 'the functions of the Central Government under the Land Acquisition Act I of 1894, in relation to acquisition of land for the purpose of the Union' have been entrusted to the Commissioners of Divisions. The power exercisable by the appropriate Government under section 55 of the Land Acquisition Act to frame Rules under the Act has not been entrusted to the Commissioner. Whether such a function can be entrusted does not call for examination in this case. An argument advanced at the Bar which proceeded upon an erroneous premise about the field in which Art. 258(1) operates may however be noticed. That clause enables the President to entrust to the State the functions which are vested in the Union and which are exercisable by the President on behalf of the Union it does not authorise the President to entrust to any other person or body the powers and functions with which he is by the express provisions of the Constitution as President invested.'

Nothing turns upon the ratio laid down therein. In that case by a notification only the functions of the Central Government under the Land Acquisition Act in relation to acquisition of land for the purpose of the Union were entrusted to the Commissioners of Divisions. So, the Supreme Court held that the power exercisable by the appropriate Government under Section 55 of the Land Acquisition Act, to frame rules under the Act has not been entrusted to the Commissioner. It further held that whether such a function can be entrusted, does not call for examination in that case.

13. From the foregoing conspectus what becomes manifest is that the State Government by virtue of the powers delegated under section 7 of Explosive Substances Act is not entitled to exercise the powers conferred under Section 432(7), Cr.P.C. to grant remission or suspension of the sentences as contemplated. Therefore G.O. Ms. No. 557 dated 30-10-1980 cannot be invoked in favour of the convict herein.

14. The ancillary argument advanced by the learned counsel for the petitioner that it is interpreted that the State Government is not empowered to exercise its powers of remission or suspension of sentences for life imprisonment under section 3 of the Explosive Substances Act, then in the case on hand the sentences which have been directed to run concurrently, will become consecutive will not detain us long as it is devoid of merit and substance. It will not tantamount to the position that the convict will be serving the two sentences one after another. Even if the sentence under section 302, I.P.C. is lifted, then the remaining sentence under section 3 of the Explosive Substances Act is not made to run from the date on which the sentence under section 302, I.P.C. is over or from the date of its obliteration. On the contrary, the sentence under Section 3 runs right from the date on which he was sentenced, viz. 31-5-1972. Hence the sentences ordered to run concurrently cannot become consecutive. They nevertheless remain concurrent. Viewed from any angle the convict has no case for the relief sought for.

15. In the result the writ petition is dismissed. No costs. Advocate's fee Rs. 250/-.

16. Petition dismissed.


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