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Manepragada Ramchandra Rao Vs. the Revenue Divisional Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1957CriLJ822
AppellantManepragada Ramchandra Rao
RespondentThe Revenue Divisional Officer and anr.
Excerpt:
.....order clearly indicated that the government proposed to take action only under section 401 of the criminal procedure code. all condemned prisoners also arc to be released including those in respect of whom referred trials or petitions for mercy are pending. in the concise oxford dictionary, the word 'condemned' is defined in the following terms: and after giving my best consideration, i am inclined to take the view that what the government intended was to grant amnesty or a general pardon to all the prisoners. though in the first order, the words 'general amnesty''were mentioned, clause 5 of that order clearly stated that specific formal orders under section 401, criminal procedure code, would be made, and pursuant to that order specific orders were made remitting the sentences in the..........the part of the punishment only and is contended that there cannot be a remission of a part of a death sentence, and therefore the word 'remitted' is not appropriate in that context. under section 401, criminal procedure code, the appropriate government can remit the whole or any part of the punishment to which a person has been sentenced. the power of remission of a part of the punishment can be invoked only in cases where that is possible.but the circumstances that in the case of death sentence there cannot be a part remission cannot be a ground for holding that the whole cannot be remitted. the words 'any part' should be applied only to a punishment which can be remitted in part. it cannot be denied that death sentence is a punishment. section 53 of the indian penal code enumerates.....
Judgment:

Subba Rao, C.J.

1. This is an application under Article 220 of the Constitution of India for issuing a writ of certiorari quashing the order of the Revenue Divisional Officer, Kovvur, dated 20th October 1954, and to direct the Revenue Divisional Officer, Kovvur, West Godavari District and the Government of Andhra to reinstate the petitioner as Karnam of Darawaram village, Kovvur.

2. The petitioner was appointed as karnam of the village Darawaram in 1935. He was committed to the Sessions Court, West Godavari, on the charge of having murdered one Doddu Subbanna in August 1949. The Sessions Judge acquitted him on 7th December 1949. But the High Court, by their judgment, dated 28th August 1950, Criminal Appeal No. 265 of 1950, set aside, the acquittal and convicted him for murder and sentenced him to transportation for life. Thereafter, he was undergoing the sentence of imprisonment in the Central Jail, Rajahmundry, from 29th August 1930 to 12th January 1954, when as a result of the alleged general amnesty granted by the Andhra Government, he was released from prison.

On 17th June 1951, on the basis of the conviction, the Revenue Divisional Officer, in his proceedings D. Dis. No. 4008/51 alter following the prescribed procedure dismissed him from service. After he was released from jail, the petitioner put in an application requesting the Revenue Divisional Officer to restore him to the Office. The Revenue Divisional Officer, by his order dated 20th October 1954, refused to restore him to the said office. On 20th October 1954, the Revenue Divisional Officer registered the petitioner's son Manapragada Venkataratnam as the permanent karnam of Darawaram village in the vacancy caused by tile dismissal of the father, and P. Venkata Narayana was appointed as deputy karnam of the Darawaram village till Venkataratnam attained majority.

On these facts, the learned Counsel for the petitioner contends that the effect of the pardon was not only to wipe out the offence in the eye of the law but also to restore him to that legal condition in which he would have been bad the crime not been committed, and therefore, his removal from the office on the basis of the conviction was illegal. He would further argue that a conviction by a criminal Court was not a ground for removing a village officer under Section 7 of the Madras Hereditary Village Offices Act.

The Government Pleader, on the other hand, contends that the Andhra Government had no power to give general amnesty to convicted persons, that as a matter of fact no pardon was given to the petitioner but only his sentence was remitted, and that in any event the effect of the pardon or the remission would not enable the restoration of his office particularly when it vested in another. He adds that the Government had ample power under the Madras Hereditary Village Offices Act to dismiss a village officer who had been convicted for murder, and in the present case, they did so following the prescribed procedure.

3. The first question is what is the scope of the pardoning power vested in the State Government, The following provisions define the scope of that power vested in the President of the Republic and the Government of a State;-

CONSTITUTION OF INDIA.

Article 72(1), The President shall have power to grant pardons, reprieves, respites or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence-

(a)...

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death.

X X X

3. Nothing in Sub-clause (c) of Clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor or Rajpramukh of a Stale under any law for the time being in force.

Article 161. The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

CRIMINAL PROCEDURE CODE.

Section 401 (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 winch 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.

Section 402(1). The appropriate Government may, without the consent of the person sentenced, commute any one of the following sentences for any other mentioned after it : - death, imprisonment for life, rigorous imprisonment for a term not exceeding that to which he might have been sentenced, simple; imprisonment for like term, fine.

(2) Nothing in this section shall affect the provisions of Section 54 or Section 55 of the Indian Penal Code.

Section 402-A. The powers conferred by Sections 401 and 402 upon the State Government may, in the case of sentences of death, also be exercised by the Central Government.

INDIAN PENAL CODE.

Section 54. In every case in which sentence of death shall have been passed the appropriate Government may without the consent of the offender, commute the punishment for any other punishment provided by this Code.

Section 55. In every case in which sentence of imprisonment for life shall have been passed the appropriate Government may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years.

4. The aforesaid provisions exhaust the powers of the President, Governor and the appropriate Government in the matter of their exercise of clemency in regard to convicted persons. The President has the power to grant pardons, reprieves, respites or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence in all cases where the punishment or sentence is tor an offence against any law relating to a matter to which the executive power of the Union extends and in all cases where the sentence is a sentence of death.

So too, the Governor has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. While Article 72(1)(c) confers on the President the powers enumerated in that clause in all cases where the sentence is sentence of death, Clause (3) of that Article expressly leaves unaffected the power of the Governor to suspend, remit or commute a sentence of death. If the object of the Constitution was to make the power of the President and that of the Governor in all cases where the sentence is sentence of death co-extensive, as the learned Counsel for the petitioner contends, Clause (3) of Article 72 would not have saved only the power of the Governor to suspend, remit or commute a sentence of death.

The clause would have been expressed in wider terms so as to confer a concurrent jurisdiction on both the President and the Governor in respect of the same matter. The two Articles in the Constitution can only be reconciled by limiting the power of the Governor to grant pardon to cases not governed by Article 72, If so read, the President alone has the exclusive power to grant pardons, reprieves, respites in all cases where the sentence is sentence of death and both the President and the Governor have concurrent power in respect of suspension, remission and commutation of a sentence of death. In other matters, i.e., in respect of offences against any law relating to a matter which the executive power of tile State extends, the Governor has all the powers enumerated in Article 161 of the Constitution including the power to grant pardons, reprieves and respites.

Sections 401 and 402 of the Criminal Procedure Code which enable the State Governments to suspend the execution of the sentence of the convicted person or to remit the whole or any part of the punishment to which he has been sentenced or to commute one of the sentences for any others mentioned in Section 402(1), Criminal Procedure Code or Section 54, Indian Penal Code, which empowers the appropriate Government to commute the sentence of death for any other punishment provided in that Code and Section 55, Indian Penal Code, empowering the appropriate Government to commute the sentence of imprisonment for life to imprisonment of either description for a term not exceeding 14 years are consistent with the express powers conferred on the Governor under Article 161 of the Constitution of India.

To put it shortly, the power of the Governor to grant pardons, reprieves and respites in all eases where the sentence is not a sentence of death, and to suspend, remit or commute the sentence of any person is co-extensive with the executive power of the State. It therefore follows that the Governor had the power in the present case to grant a pardon or remit the sentence of the petitioner as he was not sentenced to death.

5. The next question is whether the Governor granted a pardon to the petitioner or only remitted the sentence or the punishment imposed on him. The Andhra State was constituted on 1st October 1953. On 12th January 1954, the Government of Andhra made the following Order:

The Government have considered the question of granting general amnesty to all prisoners in the jails in this State and under the control of this Government and also the Andhra prisoners in the jails and Institutions in the Mysore and Madras States meant for the reception of prisoners, etc., of this State to celebrate the inauguration of the Andhra State and Direct:

(1). that all prisoners including women convicted for crimes committed in Andhra States area and now in fails both in Andhra and also in the jails meant for the reception of Andhra prisoners in Mysore, viz., the Central Jail, Bellary and the Alipuram Jail, Bellary and in the Madras State, viz., the Presidency Jail for women, Vellore, should be released including those in respect of whom referred trials or petitions for mercy are pending,..

5. The Superintendents of Jails through the Inspector-General of Prisons and the Collectors of Districts in the case of prisoners confined in the sub-jails should submit not later than 15th February 1954, particulars specified in the annexure to these proceedings of all prisoners released under the above orders for issue of formal orders under Section 401, Criminal Procedure Code.'

6. On 2nd of June 1954, the following order was issued by the Government of Andhra:

In exercise of the powers conferred by Section 401 of the Code of Criminal Procedure, 1898(Central Act V of 1898), the Governor of Andhra hereby remits the unexpired portion of the sentences passec on the prisoners mentioned in the Annexure to these proceedings, with effect from the dates specified against them.

ANNEXURE

-----------------------------------------------------------------------------------------------------

Date from

Serial No. and name of Sentencing Court with Sentence with date. which the

No. convict. Case No. sentence is

remitted.

-----------------------------------------------------------------------------------------------------

122 4218. Manapragada Sessions Judge, West Goda- Acquitted by the Judge. 7-12 12-1-54

Ramachandra Rao. vari, Eluru, S.C. 35/49, High 49. Acquittal set aside by the

Court Madras C.A. 265/50. High Court and sentenced to

transportation for life 20-8-50.

-----------------------------------------------------------------------------------------------------

Though the words 'general amnesty' are used by the Government Order, dated 12th January, 1934, Clause 5 of that order clearly indicated that the Government proposed to take action only under Section 401 of the Criminal Procedure Code. Indeed, the order actually issued on 2nd of June, 1954, was expressly under Section 401 of the Criminal Procedure Code, and the Government in exercise of the power under Section 401, Criminal Procedure Code, remitted the sentence of transportation for life imposed on the petitioner, It is therefore manifest that the Governor did not purport to grant pardon but remitted the whole of the punishment imposed on the petitioner.

7. In support of the contention that the Governor by issuing the aforesaid orders granted pardon to the petitioner, reliance is placed on the judgment of Umamaheswaram J. in Raja Ram v. Dy. I. G. of Police Waltair 1956 Andhra WR 682(A). There, on a Sub-Inspector and three constables were dismissed from service, the former by the Deputy Inspector-General of Police and the latter by the District Superintendent of Police on the ground that they were convicted for offences involving moral turpitude. Subsequently as they were released under the Government Order, dated 12th January, 1954, giving general amnesty to all the prisoners, they filed writs in the High Court for reinstating them in their respective posts. It was argued on behalf of the Government in that case, as it is before us, that the Governor did not give pardon to the convicted persons but only remitted their sentences. In meeting this argument, the learned Judge made the following observations:

At one stage of the arguments I felt very much impressed with his argument and was inclined to take the view that it was not an absolute pardon but only a remission of the sentences passed against the prisoners. But when my attention was pointedly drawn by Sri K. Srinivasamurthy, the learned advocate for the petitioners, to the last sentence in Clause (1), I fell : clear that the amnesty granted to the prisoners was a general pardon and not a remission of the sentence only. The last sentence in Clause (1) is as follows:

All condemned prisoners also arc to be released including those in respect of whom referred trials or petitions for mercy are pending.In the Concise Oxford Dictionary, the word 'condemned' is defined in the following terms:

'Doomed to death, to be beheaded'.In regard to prisoners upon whom the sentence of death is imposed, there can be no question of remitting the sentence. When petitions for mercy are pending, the execution of the sentence of death is only suspended or put off. Under Section 402, Criminal Procedure Code, it may be open to the appropriate Government to commute the sentence of death to imprisonment for life. I am unable to accept the contention of the Government Pleader that the death penalty can be remitted in whole or in part under the terms of Section 401, Criminal Procedure Code. I find it difficult to accept the argument that in regard to the prisoners sentenced to death an absolute pardon was granted and that in regard to other prisoners sentenced to varying terms of imprisonment, there was only a remission of sentence. After a careful perusal of the several clauses of the G. O. and after giving my best consideration, I am inclined to take the view that what the Government intended was to grant amnesty or a general pardon to all the prisoners.

We cannot agree with the view expressed by the learned Judge. Though in the first order, the words 'general amnesty'' were mentioned, Clause 5 of that order clearly stated that specific formal orders under Section 401, Criminal Procedure Code, would be made, and pursuant to that order specific orders were made remitting the sentences in the case of each individual prisoner. The release of the prisoners was brought about not by exercising powers of general amnesty, but only by exercising powers of remission under Section 401, Criminal Procedure Code.

We have already held that the Governor's powers are confined only to Article 161 of the Constitution of India and the other provisions extracted above and he has under those provisions no power to give general amnesty or even pardon in the case of persons sentenced to death. When the orders specifically stated that they were issued in exercise of a power under Section 401, Criminal Procedure Code, we cannot say that they were passed in exercise of a power which the Governor did not possess. Nor can. we agree with the learned Judge that a sentence of death cannot be remitted under Article 161 of the Constitution or Section 401, Criminal P. C.

Under Article 161, the Governor can remit the sentence of any person convicted of any offence. Under Section 401 of the Criminal P. C. the appropriate Government can remit the whole or any part of the punishment to which a person has been sentenced. The remission can be of the whole or any part of the punishment. If a person sentenced to death is released, the whole of the punishment to which he has been sentenced is remitted.

Reliance is placed upon the fact that under Section 401, Criminal P. C., remission can be of the part of the punishment only and is contended that there cannot be a remission of a part of a death sentence, and therefore the word 'remitted' is not appropriate in that context. Under Section 401, Criminal Procedure Code, the appropriate Government can remit the whole or any part of the punishment to which a person has been sentenced. The power of remission of a part of the punishment can be invoked only in cases where that is possible.

But the circumstances that in the case of death sentence there cannot be a part remission cannot be a ground for holding that the whole cannot be remitted. The words 'any part' should be applied only to a punishment which can be remitted in part. It cannot be denied that death sentence is a punishment. Section 53 of the Indian Penal Code enumerates the punishments to which offenders are liable under the Indian Penal Code. They are:

First.-Death; Secondly.-Imprisonment for life; Thirdly.- (omitted by Act XVII of 1949); Fourthly.-Imprisonment which is of two descriptions, namely : (1) Rigorous, that is, with hard labour; (2) Simple; Fifthly,-Forfeiture of property; Sixthly. -Fine.

Section 54 of the Indian Penal Code says that in every case in which sentence of death shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for any other punishment provided by this Code. It is therefore clear that the sentence of death is a punishment under the Indian Penal Code and that punishment can be wholly remitted under Section 401 of the Criminal Procedure Code. Article 72(3) of the Constitution of India puts the matter beyond any doubt.

Under that clause, nothing in Sub-clause (c) of Clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor or Rajpramukh of a State under any law for the time being in force. This shows that sentence of death can be remitted. It is true that sentence of death can be commuted, under Section 402(1), Criminal P. C., and under Section 54 of the Indian Penal Code. So too other sentences such as transportation, rigorous imprisonment, etc. The power of commutation of death sentence for a lesser one is not inconsistent with the power of remitting the punishment altogether.

The dictionary meaning of the word 'remit' is 'to relax, to refrain from exacting or inflicting, to give up, to desist from'. The appropriate Government can certainly refrain from exacting or inflicting the punishment of death imposed on a convicted person. The fact therefore that the Government orders related also to condemned prisoners, i.e., persons doomed to death, cannot be a ground for holding that the orders did not remit the punishments imposed upon the convicted persons. We therefore, hold that the Governor did not give any pardon to the petitioner but only remitted his sentence of transportation for life,

8. If it was an act of remission, it is not contended that its effect was to obliterate the offence altogether. A remission of punishment assumes the correctness of the conviction but only reduces the punishment in part or in whole. If so, the petitioner who was convicted of a grave offence of murder, was guilty of moral turpitude which disentitled him to occupy the responsible post of the office of karnam, and the Revenue Divisional Officer rightly dismissed him from office.

9. Even so, it is contended that though a conviction for criminal offence disqualifies a person from being appointed to the office of karnam, it is not one of the grounds laid down in the Madras Hereditary Village Offices Act, for removing a person in office. Under Section 10 of the Madras Hereditary Village Offices Act, no person shall be eligible for appointment to any of the village offices forming Sub-clauses (i), (ii) and (iii) of class (i) in Section 3, who has been convicted by a criminal Court of an offence, which in the opinion of the Collector, disqualifies him from holding the office. Under Section 7 of the Act, the Collector may, of his own motion or on complaint and after inquiry fine, suspend, dismiss or remove the holder of any of the offices forming class (i) in Section 3 for misconduct or for neglect of duty or incapacity or for non-residence in the village or for any other sufficient cause.

Comparing these two sections it is contended that while a convicted person is not qualified to be appointed as a karnam under Section 10, he is not liable to be removed for that reason under Section 7. The argument is sought to be reinforced by reference to Sections 56(1) of tile Madras Local Boards Act, 50(f)(a) of the District Municipalities Act, 53(1)(a) of the City Municipalities Act and 17(a) of the Madras Village Panchayats Act, where the conviction by a criminal Court for an offence is expressly made a ground for removal. It is said that the non-mention of that ground by the Legislature in Section 7 is a clear indication that a conviction by a criminal Court is not a ground for removing a karnam in office. This argument appears to be plausible but is devoid of merits.

A karnam can be removed under Section 7 for misconduct or for neglect of duty or incapacity or non-residence in the village or for any other sufficient cause. While Section 10 enumerates the disqualification for an office, Section 7 gives the supervening reasons for removing a person from office. While conviction by a criminal Court for an offence is a disqualification for entertaining a person as karnam, he is liable to be removed for misconduct which is a comprehensive term taking in not only criminal offences but other activities of the karnam disentitling him to hold a responsible post. If a karnam commits murder in or outside the Court, it is a grave act of misconduct on his part entailing his removal,

It is said that the misconduct in Section 7(b) relates only to misconduct in the discharge, of the duty but the section does not qualify the word 'misconduct' in the manner the learned Counsel seeks us to do. The word takes in all acts of misconduct which makes the officer concerned unfit to be entrusted with any responsible duty. Even if there be any doubt on the construction of the word misconduct, the phrase for any other sufficient cause' is wide enough to cover offences of moral turpitude. The fact that in other Act and in different contexts, there is a specific provision empowering the authority concerned to remove a person from office on the ground that lie has been convicted by a criminal Court of an offence, cannot be relied upon for construing the provisions of Section 7(b) of the Madras Hereditary Village Offices Act.

That apart, as we have already stated, the words used in Section 7(b) are comprehensive enough to take in the ground of conviction in a criminal Court. We therefore hold that the Revenue Divisional Officer has power to dismiss a karnam if he has been convicted by a criminal Court of an offence. In this case, the petitioner was convicted of an offence of murder. The petitioner was guilty of moral turpitude and was not a person who could be entrusted with the responsible office of karnam, and he was therefore rightly dismissed by the Revenue Divisional Officer.

10. In this view, no other question arises for consideration. The petition fails and is dismissed with costs. Advocate's fee Rs. 150.


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