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Veeramchaneni Raghavendra Rao Vs. Govt. of A.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1985CriLJ1009
AppellantVeeramchaneni Raghavendra Rao
RespondentGovt. of A.P. and ors.
Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter......orderkodandaramayya, j.1. in this writ petition the power 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 total 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 section 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.241/83 on the file of this court and the state government preferred an appeal against the other.....
Judgment:
ORDER

Kodandaramayya, J.

1. In this writ petition the power 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 total 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 Section 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.241/83 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 22-9-83 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 Telugu Desam 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 8-8-84 and when the direction 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 22-9-83 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. However I gave notice to the Advocate General and also heard him on the validity of R. 974 of the A.P. Prisons Rules and also 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 counter affidavit that out of six persons only one prisoner surrendered and the remaining prisoners are overstaying n parole since 1-7-84 and this counter-affidavit was sworn to on 29-11-84. 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 30-6-84. It is also averred that the State Government has got power under the relevant rules to suspend the sentence pending the appeal. The allegations relating to political bias is refuted.

6. Now the following questions arise for consideration:

1. The power of the State Government to suspend the sentence and releasing the prisoners on parole when the appeal of the prisoners against conviction is pending in this Court.

2. The validity of the R. 974 of the A.P. Prisons Rules and Rule 23 of the Suspension of Sentence and Parole Rules, 1981 empowering the State Government to grant parole to a prisoner during the pendency of the appeal.

3. Whether the petition has become infructuous.

7. I must make it clear in forefront that the constitutional power of the Governor 'of the State under Article 161 of the Constitution of India is not invoked in suspending the sentence and releasing the prisoners. Several orders of releasing of prisoners are placed before me and they were issued by the Secretary to Government (Home) Prison S.C. Department., in exercise of the powers under Section 432 Cr.P.C. (Central Act 2 of 1974) after obtaining orders from the Chief Minister. The nature of powers to be exercised by the State Government under Section 432 Cr. P.C,, for suspending a sentence and also the power of the appellate court under Section 389 of the Cr. P.C. is no longer res Integra. In the well known case. M. Nanavathi v. State of Bom bay : 1961CriLJ173 the Supreme Court had an occasion to demarcate the powers under the corresponding provision of the Criminal P.C. In view of the said pronouncement, there cannot be any doubt that the State Government cannot suspend the sentence when the appeal is pending in this Court under Section 389 Cr. P.C The learned Advocate-General contended that the observation of the Supreme Court in that case in the context of examining the powers of the Governor under Article 161 of the Constitution of India and the power of the Supreme Court under Articles 142 and 145 of the Constitution of India should be confined to the facts of that case, and cannot be construed as barring the State Government to suspend the sentence altogether when the appeal is pending in this Court. No doubt that case arose when the court has to examine the question of the effect of the order of suspension of sentence made by the Governor in exercise of his power under Article 161 vis-a-vis the powers of the Supreme Court while granting special leave against the sentence of the High Court. It is held that the order of the Governor granting suspension of sentence could only operate until the matter became sub judice in the Supreme Court and after filing of the petition in the Supreme Court the Supreme Court was seized of the case which would be dealt with by it in accordance with law and the Governor had no power to grant suspension of sentence for a period during which the matter was sub judice in the Supreme Court. While comparing the two constitutional powers under Articles 142 and 145 with Article 161 they have also examined the conflict of powers to be exercised by the executive and the appellate authority when the appeal is pending under the Criminal P.C. Section 432 of the present Criminal P.C. 1973 (2 of 1974) corresponds to Section 401 of the Cr. P.C. of 1898 and Section 389 of the present Code corresponds to Section 426 of the previous Code. The power of the Government under Section 432(5) to suspend a sentence by general rules or special orders is clearly in absolute terms. Similarly the power of the appellate Court under Section 389(1) is also in absolute terms. Adverting to these provisions, which are identical under the previous Code also, the Supreme Court observed in K. M. Nanavathi v. State of Bombay : 1961CriLJ173 as follows:

This immediately raises the question of the extent of the power under Section 401 of the Code with respect to suspension as compared with the powers of the Court under Section 426, which enables the Court pending appeal to suspend the sentence or to release the appellant on bail. It will be seen from the language of Section 426 of the Code of Criminal Procedure dealing with the power of the appellate court that, for reasons to be recorded in writing, the court may order that the execution of the sentence be suspended or that if the accused is in confinement he may be released on bail or on his own bond. Section 401 occurs in Chap. XXIX, headed 'Of suspensions, remissions and commutations of sentences.' This Chapter, therefore, does not deal with all the powers vested in the Governor under Article 161 of the Constitution, but only with some of them. Section 426 is in Chap. XXXI, headed as 'Of appeal, reference and revision.' Section 426, therefore, deals specifically with a situation in which an appeal is pending and the appellate court has seisin of the case and is thus entitled to pass such orders as it thinks fit and proper to suspend a sentence. It will thus be seen the whereas Chap. XXIX, in which Section 401 occurs, deals with a situation in which pendency of an appeal is not envisaged, Section 426 deals with a situation in which pendency of an appeal is postulated. In other words Chap. XXIX deals with persons sentenced to punishment for an offence simpliciter in general term whereas Section 426 deals with a special case and therefore must be out of the operation of Section 401. But it has been vehemently argued by the learned Advocate-General that the words 'at any time' indicate that the power conferred by Section 401 may be exercised without any limitation of time. In the context of Section 401 'any time' can only mean after conviction. It cannot mean before conviction, because there cannot be any sentence before conviction. The question then is : 'Does it cover the entire period after the order of conviction and sentence even when an appeal is pending in the appellate court and Section 426 can be availed of by the appellant?'

'It will be seen that Section 426 is as unfettered by other provisions of the Code as Section 401 with this difference that powers under Section 426 can only be exercised by an appellate court pending an appeal. When both the provisions are thus unfettered, they have to be harmonised so that there may be no conflict between them. Their can be harmonised without any difficulty, if-S.426 is held to deal with a special case restricted to the period while the appeal is pending before an appellate court while Section 401 deals with the remainder of the period after conviction. We see no difficulty in adopting this interpretation nor is there any diminution of powers conferred on the executive by Section 401 by this interpretation. The words at any tune emphasise that the power under Section 401 can be exercised without limit of time, but they do not necessarily lead to the inference that this power can also be exercised while the court is seized of the same matter under Section 426.

(emphasis supplied)

8. Thus it is seen to avoid conflict of jurisdictions the Supreme Court construed these powers accordingly. This observation of the learned Judges cannot be construed as-an obiter or unnecessary.

9. It is necessary to compare both the provisions to see whether conflicts of jurisdictions would arise or not.

Section 389(1) Cr. P.C. : - 'Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.'

Section 432(5) Cr. P.C. 'The appropriate Govt. 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.

10. As the power conferred to the respective authorities is in absolute terms, there is bound to be conflict while exercising that power. Hence the Supreme Court construed those provisions and held they must be exercised at different periods. A clear demarcating periods are envisaged.

11. Hence the rule-making power under those provisions also must be construed accordingly and it cannot have greater power than the source Le. the statute. Let us look at R. 23 of the Suspension of Sentence and Parole Rules framed under Section 432 Sub-section (5) of the Criminal P.C. 1973 (2 of 1974).

Rule 23 : - 'There shall be no bar for the grant of parole to the prisoner during the pendency of their appeals.

12. It is fairly settled that the rule-making authority has no plenary power and it has to act in the limits granted to it. The statutory power conferred by the statute cannot be transgressed by the rule-making authority. It is, therefore, absolutely essential that rules framed under the Act must be consistent with the Act and as held by the Supreme Court in Newspapers Ltd v. State Industrial Tribunal : (1957)IILLJ1SC the executive cannot under the power of framing the rules and regulations clothe itself with the power which the statute itself does not give and which are inconsistent with the interpretation put by the Courts. Once power under Section 432(5) Cr. P.C, was construed to be exercised in the remainder period of conviction after the disposal of the appeal, R. 23 of the above rules is contrary to the said power inhered in the State Government and is clearly void.

13. So far as A.P. Prisons Rules of 19791 are concerned/they are framed under Section 59 of Prisons Act 1894, Central Act 9 of 1894. We are concerned here with two sets of rules, one is what is called 'Furlough-leave Rules and the other Parole-Emergency Rules. Furlough-leave Rules apply only to persons undergoing imprisonment for a shorter period. They do not apply to habitual offenders or prisoners convicted under Sections 392 to 402 I.P.C. These prisoners are entitled to earn concession of release on parole on good behaviour on their part. Further, Parole Rules of 1981, excluded from its purview release of prisoners under Furlough system.

14. Rule 974 of the Prisons Rules related to Parole-Emergency Rules framed consistent with Section 432 Cr. P.C., empowering the Govt.; to release the prisoners on paole in cases, of serious illness, death or marriage of any member of the family or near relative or for any other sufficient cause. In fact, the R. 974 embodies the power conferred on the Govt. under Section 432 to suspend the sentence. Once separate rules are framed under Section 432 called Parole Rules of 1981, R. 974 and Parole Rules of 1981 overlap and virtually the release of persons on suspension is being made under the Parole Rules of 1981. Even before this Parole Rules of 1981 are framed, the Prisons Rules of 974 sub-rule (2) (Sic) embodies a clause in following terms:

There shall be no bar for grant of parole/emergency leave to the prisoners during the pendency of their appeals.

15. We have already seen that this power; to suspend the sentence and release is ascribed under Section 432(5). So far these Prisons Rules of 1979 are concerned there is no power under Section 59 of the Prisons Act 9 of 1884 empowering the Govt. to frame rules and suspend the sentence. This view has been clearly expressed by the Supreme Court in G. V. Godse v. State of Maharashtra : 1961CriLJ736a wherein it was held 'The Prisons Act does not confer on any authority a power to commute or remit his sentence. It provides only for regulation of Prisons and for the treatment of the prisoners confined therein. Section 59 of the Prisons Act confers a power on the State Government to make rules, inter alia for rewards for good conduct.' Hence it is clear before the Parole Rules of 1981, R. 974 cannot embody any power of the State Government to suspend sentence without reference to Section 432(5) of Cr. P.C Once I held the R. 23 made under Section 432(5) itself is void, the clause embodied in R. 974 of the Prisons Rules refering the power conferred under Section 432(5) Cr. P.C. is equally void and liable to be set aside.

15A. It is urged by the learned Advocate-General that the absolute bar of releasing the prisoners when the appeal is pending will lead to several complications. I do not see any such extraordinary situation which prevents any prisoner to approach the appellate court for necessary relief of parole. The Court is better suited as the appeal is pending before it. The entire record is available and the appellate court can always suspend the sentence pending the appeal when the situation warrants such relief. If the jail authorities want that the prisoner should be released for an urgent medical treatment or for other necessity, any report by them to the court will facilitate the matter in a greater smoothness and quickness and the court will readily accept and release the prisoner if the jail authorities themselves recommend such release.

16. The learned Advocate-General urged that there is no conflict at all in exercising these powers relying on the observation in Sarat Chandra v. Khagendranath : [1961]2SCR133 wherein it was held that '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' Similarly the power of granting amnesty even in respect of cases where appeals are pending is clearly recognised Vide : AIR1954Mad911 (In re Channugadu).

17. It is no doubt true as observed by the Supreme Court in K. M. Nanavati v. State of Bombay AIR 1961 SCI 12 (123) : 1961(1) Cri LJ 173 (184-85) that 'There can be no doubt that it is open to the Governor to grant a full I pardon at any time even during the pendency of the case in this Court in exercise of what is ordinarily called 'mercy jurisdiction.' It is emphasised by the learned Advocate-General that it is the Executive that exercises the power under Section 432 of Cr. P.C., or under Article 161 of the Constitution and both the powers are in absolute terms and the impugned orders can be sustained even though not purported to be issued under the Article 161 of the Constitution. I cannot agree with this. Though, it is the executive that exercises the power under Article 161 in the sense that the Governor is bound by the advice given by the Cabinet, the nature of powers is quite different. This is brought out fully by the Supreme Court when ' the constitutional validity of Section 433A of the Cr.P.C., was questioned. Repelling 'the; contention that Section 433A indirectly violates the constitutional power under Article 161 it is observed in Maru Ram v. Union of India : 1980CriLJ1440 that 'It is apparent that superficially viewed, the two powers, one constitutional and the other statutory, are coextensive. But two things may be similar but not the same. That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States. The source is different, the substance is different, the strength is different, although the stream may be flowing along the same bed. We see the two powers as far from being identical, and, obviously, the constitutional power is 'untouchable' and unapproachable and cannot suffer the vicissitudes of simple legislative processes. Therefore, Section 433A cannot be invalidated as indirectly violative of Articles 72 and 161. What the Code gives, it can take, and so, an embargo on Sections 432 and 433(a) is within the legislative power of Parliament.'

18. It is true, the Supreme Court compared and contrasted the true constitutional powers under Articles 142 and 161 of the Constitution of India but in this case, we are concerned with the conflict of statutory powers. The Supreme Court compared the executive power and judicial power embodied in the Constitution and as in the Criminal Procedure Code and it observed in K. M. Nanavati v. State of Bombay : 1961CriLJ173 that '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 Sections 401 and 426 of the Code of Criminal. Procedure or Articles 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 Article 142 is not covered by Article 161 and similarly what is covered by Section 426 is not covered by Section 401. On that interpretation Mr. Seervai would be right in his contention that there is no conflict between the prerogative power of the sovereign State to grant pardon and the power of the Courts to deal with a pending case judicially.'

(emphasis supplied)

This dicta puts the matter beyond doubt. In this case I am not called upon to examine the validity of a conflicting orders issued under Article 161 of the Constitution of India by the Governor and the power of the appellate court to pass such orders under Section 389 of the Cr. P.C. The impugned orders are issued under Section 432(5) of Cr. P.C., and they are issued by the Home Secretary and hence we are concerned squarely with the conflicting statutory powers under Section 432 and Section 389 of the Cr. P.C. It is, not permissible for the state to contend that notwithstanding the pendency of the appeal or the refusal by the appellate . court to grant parole, the State Government can still exercise its power under Section 432(5) Cr. P.C. and suspend the sentence and release the prisoner.

19. This legal position which is correct and well founded and absolutely necessary in the interests of administration of criminal justice is also illustrated by the facts of this case. Now let us examine the facts of this case and, see whether the release orders are in accordance with the rules even assuming that the Government have powers to release prisoners pending the appeal against conviction.

20. Respondents 3 to 8 were convicted on 26-2-83 by the Sessions Judge, Machilipatnam. As already stated two appeals are filed one by the accused and another by the State in respect of other accused who were acquitted. This Court refused bail on 25-3-83 and dismissed the petition filed by the accused. Only in respect of one accused (R7) on the application that his father died he was released for a period of two weeks directing that he should surrender immediately after the expiry of the two weeks and he shall be taken into custody and under no circumstances the period shall be extended. Curiously even this accused also applied for parole to the State Government along with the other accused and obtained parole on the self same ground of the death of his father once again. In the first instance on behalf of R3 to R8 (six of them) the applications are filed with the following allegations. On behalf of R3 her mother applied for parole. It is stated that the accused contracted debts and she is not aware of the details and hence he must be released for settling them, for sixty days. It is also stated she is in her last days. On behalf of R4 the wife applied stating that the husband secured (Sic) some debts and that she is not aware of the details and hers is a joint family along with her husband's brother. So her husband must be released for sixty days, for settling these debts. On behalf of R5 again it is stated some debts were contracted and some family affairs have to be settled and hence he should be released for sixty days. On behalf of R6 again the mother applied on the ground that debts contracted by the accused must be settled. The additional ground is she is not keeping good health so he must be released for sixty days. On behalf of R7 who was already released by the High Court for fifteen days again applied along in this batch of applications stating that some debts were contracted and they must be settled and his father also died two months back and his sister attained the age of marriage and hence he must be released for sixty days. On behalf of 8th respondent his wife filed an application stating that the accused contracted some debts and the creditors are pressing for payment and he is also a contractor and the affairs must be settled and he may be released for sixty days. On this the Hon'ble Chief Minister (the 2nd respondent herein) directed 'Parole for two months is granted' and the Home Secretary issued an order on 22-9-83 for two months with effect from the date of release. The matter did not end with that. On 13-1-1984 all the accused applied for extension of time stating that their parole will expire by 25-1-1984. This time the reasons assigned may be recalled. On behalf of R3 it was stated that his mother is sick and agricultural operations have to be undertaken. On behalf of R4 it was stated that agricultural operations have to be taken and debts will be adjusted. On behalf of R5 it is stated that some family affairs have to be adjusted. On behalf of R6 a simple request was made for extension of parole. On behalf of R7 it is stated that for performing the marriage of his sister parole may be extended On behalf of R8 it is stated that the affairs were not completed so parole must be extended It is pertinent to note that one Telugu Desam President of Guntur district represented to the Chief Minister and orders were passed by Chief Minister on 12-1-84 extending the period for one month and accordingly the Special Secretary (Home) granted extension of time for a further period of one month on 16-1-84. Then the present petitioner submitted a representation to the Chief Minister stating that the release of these accused in this fashion is fraught with danger and the accused are creating havoc in the village and are creating terror and requested him not to extend the parole any further. However on 17-2-84 further applications were made for extension on behalf of six accused till 25-4-84. The reasons stated in those applications are that the grounds on which the previous parole was granted could not be fulfilled and so extension may be granted. Even then the prisoners did not surrender. On that the Chief Minister passed orders extending the parole till 31-3-84 and the Secretary issued orders on 22-2-84 accordingly. Even then, the prisoners did not surrender. However on a single application made on behalf of all signed on 6-6-84 by one fiobba Pagidamma, recommended by a Member of Legislative Assembly the parole is extended up to 30-6-84. Again an order was issued by the Chief Minister extending the period up to 30-6-84 and accordingly the Secretary issued orders on 1-6-84. Now it is stated in the affidavit that after that no orders were passed and the contention of the learned Government Pleader is that this writ petition has become infructuous because the impugned orders of release have worked themselves out. I need not comment about the very serious situation created as the facts themselves reveal the way in which the great sovereign function is being discharged in such a casual way.

21. To start with the grounds are ill-founded The uniform ground for releasing is that the accused have contracted debts and the details of debts cannot be obtained by the members of the family which can never be a sufficient cause. Rule l(c) contemplates serious illness, death, marriage of any member of family or other sufficient cause. Normally the period of release shall not exceed one month as per Parole Rules and only fifteen days as per Prisons Rules. But first order itself was for two months and the last order was for three months. No verification from the jail authorities or the Presiding Officer as contemplated under the Cr. P.C was taken into account. These are the persons convicted for murder on 26-2-83 and under R. 13 they are not entitled for parole unless they undergo imprisonment for three years. As per R. 17 no further extension shall be granted However extension is granted thrice to all the prisoners involved in the same case and even on a single application also sometimes without examining the individual cases of each prisoner. In result now it is admitted that out of six prisoners, only alone surrendered on 3-9-84 and the other five persons are overstaying parole since 1-7-84. In the affidavit it is not even stated as to what were the steps taken by them and who are the sureties that stood guarantee for the release of the prisoners or if they were released on their own bonds.

22. Thus, there cannot be greater dereliction of statutory duty as evidenced in this case. It is not a mere statutory function, it is a sovereign function of executing the sentence of imprisonment.

23. The statutory power must be exercised reasonably, bona fide and without negligence. Negativing the contention of political bias or want of bona fides on the part of the respondents, I must say, the statutory powers are not exercised reasonably, and without negligence. The total disregard of the statutory rules is clearly established. I am sure, the State Government will take stern steps and take suitable action against the Officers who are responsible for this. I must say that the Chief Minister is riot properly apprised of the correct legal position and the necessary assistance was not given to him by the responsible officers when he was called upon to discharge this statutory duty in the present case. Execution of sentence is a sacred duty of the State. A passage from Halsbury's Laws of England Third Edition Vol (para 1360) may be noticed in this regard which runs as follows:

If a criminal is sentenced to death by a Court having authority to pass such a sentence, his execution in the proper manner and by the proper officer is justifiable; but if the execution is by an officer upon whom that duty is not cast, or if it is carried out in a different manner from that which is authorised by the form of the sentence, it is murder.

24. Thus, it is seen that utmost care must be bestowed by the State in executing the sentence awarded by a Court of Law. It is the Executive that prosecutes the Criminal and it is it that executes the sentence awarded by the Court. Such a function cannot be allowed to be exercised casually.

25. The power conferred under the Cr. P.C., enjoins the statutory duty. It is well known as per the dicta of Lord Parker that a power exercised for a purpose or with an intention beyond the scope of or not justified by the instrument creating the power is ultra vires. Hence, the principle that even an honest exercise of statutory power may amount to an abuse of power if it is shown to have been exercised unreasonably or indiscriminately.

26. No doubt, as per R. 18 of the Parole Rules the period spent on parole shall not be counted as part of sentence and under Rule 18 of the said Rules, the Superintendent is empowered to award punishment if a condition of parole is violated. Even assuming that the R. 23 is valid and that the State Government have got power to grant parole pending the appeal, wholesale departure of procedure contemplated by statutory rules is adopted in the present case. The proceedings disclose gross abuse of statutory power.

27. It is true that the time stipulated under the impugned orders, releasing prisoners had expired. That is why, I heard the petition finally even though the prisoners are not served with notices in this writ petition. The orders passed in their favour have worked themselves out and the same cannot be set aside. However there is no excuse for them to overstay. But in view of the fact that the prisoners are still overstaying parole since 1-7-84, it is really impossible to accept the contention of the Government Pleader that this writ petition has become infructuous. It is the bounden duty of the State Government to take immediate steps to apprehend the prisoners who are overstaying since July, 1984 and put them in the prison and enforce the imprisonment faithfully.

28. In the result, I hold the last clause in R. 974(2) of A.P. Prisons Rules of 1979 that 'there shall be no bar for grant of parole-Emergency leave to the prisoners during the pendency of the appeal', and R. 23 of the Suspension of Sentence and Parole Rules of 1981 shall be struck down as being ultra vires the statutory powers of the State Government and there shall be a direction to the respondents 1 and 2 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 and said report shall form part of the record in the Crl. Appeal No. 241/83 pending in this Court. I make no orders as to costs. Advocate's fee 250/-.


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