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Smt. Kavuri Sudesthamma and ors. Vs. State of A.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1985CriLJ1890
AppellantSmt. Kavuri Sudesthamma and ors.
RespondentState of A.P. and ors.
Excerpt:
.....this kind of orders can only be expected from' autocrats like the nizam, who was not bound by the rules, not even the rules framed by himself. but, not so, by ministers of a democratic government, functioning under a constitutioa the rules arid practices well established are sacrosanct for a democratic government. it is obvious that the hon'ble ministers in this case are very anxious to oblige the persons that recommended the case, at one time by a zilla parishad chairman, and all other times, some mla or the other. thus, the concerned secretary or the deputy secretary have failed in their duties in not bringing the rules to the notice of the minister. wherein it is laid down that whenever an application is made to the appropriate government for the suspension or remission of a..........reddy, j.1. this application is filed under section 482 cr. p.c. praying for cancellation of the parole granted to respondents 2 to 4, who are accused nos. 1,2 and 4, in crime no. 62/82 of martur p.s. and sc. no. 9/83. respondents 2 and 3 are the appellants in criminal appeal no. 920/83 and respondent no. 4 is the appellant in criminal appeal no. 921/83, on the file of this court. the petitioners are wife and mother of late kavuri venkateshwarlu, bobbepalli, addanki taluq, prakasam district. the said kavuri venkateshwarlu was murdered in the village on 13-7-1982. respondents 2 to 4 and 7 others were prosecuted in this matter and four of them were found guilty of the offence under section 302 ipc in sc. no. 9/83 on the file of the sessions judge, ongole, prakasam, _and they were.....
Judgment:
ORDER

Lakshminarayana Reddy, J.

1. This application is filed under Section 482 Cr. P.C. praying for cancellation of the parole granted to respondents 2 to 4, who are accused Nos. 1,2 and 4, in crime No. 62/82 of Martur P.S. and SC. No. 9/83. Respondents 2 and 3 are the appellants in Criminal Appeal No. 920/83 and respondent No. 4 is the appellant in Criminal Appeal No. 921/83, on the file of this Court. The petitioners are wife and mother of late Kavuri Venkateshwarlu, Bobbepalli, Addanki taluq, Prakasam district. The said Kavuri Venkateshwarlu was murdered in the village on 13-7-1982. Respondents 2 to 4 and 7 others were prosecuted in this matter and four of them were found guilty of the offence under Section 302 IPC in SC. No. 9/83 on the file of the Sessions Judge, Ongole, Prakasam, _and they were sentenced to undergo imprisonment for life, the respondents preferred appeals and they are pending in the High Court. The respondents also filed applications to grant bails, pending appeals, but the High Court was pleased to dismiss the same.

2. While the matters stood thus, the Government was pleased to grant parole to these respondents. And in order to cancel the said parole, the present petition is filed by the wife and mother of the deceased, on the ground that parole was granted to these respondents against the provisions of law. The sentence to undergo imprisonment for life was awarded against the respondents by the Sessions Court on 13-12-1983. The applications for bail preferred by these respondents were dismissed by the High Court on 29-12-1983. The wives of the three accused-respondents 2, 3 and 4 put in applications directly to the Minister for Home, without any dates on the applications, to release their husbands on parole. The second respondent's wife, simply stated that her health was not good, having undergone an abdominal operation; that her seven year-old daughter was sick; that they incurred debts and creditors are giving pressure to pay the debts back; that she was having financial difficulties to run the house. Therefore, her husband may be released on parole for two months,

3. The third respondent's wife stated in her petition for parole that the accused's mother became sick and wanted to see her son; that they incurred debts and the creditors are giving pressure; that she intends to perform their son's marriage also, and, therefore, her husband may be released on parole for two months.

4. The fourth respondent's wife also put in an application stating that her husband incurred debts and that the creditors are giving pressure; that she wants to perform her daughter's marriage and, therefore, her husband may be released on parole.

5. Every one of this petition is recommended by Gottipati Hanumantha Rao, Chairman, Zilla Parishad, Ongole, for consideration of the Government. The Chief Minister, who happened to be the Home Minister also, at that time, simply wrote on the applications : 'Parole granted for one month'. The Home Department then issued the GO granting parole for one month to all these three respondents on 11-5-84. They were actually released from the jail on 31-5-1984.

6. Then, again, on 2-7-1984, all the three petitioners together put in one single application, stating, that by the time they were released from the jail, the 'muhurthams' for the marriages were over; that the mother of one of the accused was sick. Therefore, their parole may be extended by four months. The Chief Minister wrote, 'parole extended by one month' to C. Nos. 2923, 2924 and 2926', i.e. the respondents 2 to 4. This application was recommended by one P. Koteswhar Rao, MLA, Ongole. Then, again, on 3-9-1984, all these three petitioners put in another application, that they had to report to Jail on 1-8-1984, but because of the ill-health of Nagaboina Rajamma, (perhaps, the mother of one of the respondents) and that they are in financial difficulties, their parole may be extended by four more months. The Home Minister wrote on 3-9-1984, 'parole extended'. This application was recommended by another MLA on 3-9-1984 itself, by name M. Nagendram. From this application, we can see that even though they had to report to jail on 1-8-1984, they did not do so. They came forward with this application for extension only on 3-9-1984. That means, for one month, they are, there, out of jail, even without a parole in their favour, but, yet the Minister extends the parole.

7. Then there is the other application for extension of parole on 8-11-1984. In this application, it is simply written that the applicants were there at their houses for the last three months, attending to work; that they had to report on 1-11-1984; that the health of their mother is deteriorating; that they are having some financial difficulties. Therefore, parole may be extended by four months. This was recommended by one MLA, Dr. B.C.H. Garataiah, and the Home Minister simply wrote, 'please extend parole for two more months'. This was on 9-11-1984.

8. This is how paroles are granted and extended to these respondents 2, 3 and 4 by the Hon. Home Minister, Govt. of A. P. It is this grant of parole that is questioned in this petition,- stating, that these paroles and extensions are granted by the Home Minister against all the canons of law and ignoring and established procedure of law in granting paroles.

9. Section 432, Cr. P.C. confers powers on the State Govt. to suspend the execution of the sentence, or to remit the whole or any part of the punishment, to which he has been sentenced. Then, Sub-section (2) of Section 432 lays down that 'whenever an application is made to the appropriate Government for 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 statement of such opinion, a certified copy of the record of the trial, or of such record thereof as exists'. Thus, whenever the Govt. intends to entertain an application for suspension of a sentence imposed by a Court, the Govt. is bound to ask for the opinion of the Court that imposed the sentence.

10. Under Section 432, Sub-section (5), it is laid down that the appropriate Government may by general rules, or special orders, give directions as to suspension of sentences and the conditions on which petitions should be presented and dealt with. In fact, the A. P. Govt. issued GOMS. No. 647, Home (Prisons C) Department, dt 23-10-1981, framing rules for suspension of sentence on parole. Rule 13 of the above Rules lays down:

The following categories of prisoners shall not be released on parole during the first three years of their imprisonment, i.e. they should serve an actual sentence of three years, of course, including the remand period which is to be set off against the sentence of imprisonment awarded by the Court before they could be considered for release on parole, namely:

1. habitual offenders.

2. prisoners convicted of robbery, dacoity, murder, forgery, rape, etc.

3. hardened prisoners who are incorrigible;

4. prisoners who are frequently involved in prison disciplinary cases; and

5. prisoners convicted under the Arms Act, Explosive Substances Act, or of counterfeiting Indian coins or currency, etc.

Therefore, the persons convicted for murder cannot be released on parole unless they served three years of imprisonment. Since, the respondents 2, 3 and 4 herein are persons convicted for murder, the question of their release on parole should not arise unless they completed three years of sentence of imprisonment. It is plain in this case, before us, that the respondents 2, 3 and 4 hardly completed six months of imprisonment. But, yet, they were released on parole. Rule 17 lays down that the period of release on parole shall not ordinarily exceed one month and no further extension shall be granted. In the case before us, not only parole was granted against the rules framed in the above G.O. but also extended three times, for one month on the first two occasions, and on the third occasion on 9-11-1984, finally extended by two more months. In spite of the specific rules that no parole should be granted in favour of an accused, who is sentenced for an offence of murder, unless he completes three years of imprisonment; and against the rule that the period of parole should not exceed more than one month, and also against the bar of extensions of parole the respondents were granted parole and extended month after month three times. All these applications were recommended either by an MLA or a Chairman of the Zilla Parishad, and no report is called for from anybody, to know about the truth of the contents of the petitions. The applications were not even sent to the section for putting up a note. It appears, the moment the application is presented with the recommendation of an MLA, it is simply granted by the Minister then and there, without looking into the rules or without knowing his own powers, whether he can grant it or not. From the rules above quoted, it is plain that the Minister cannot grant a parole, unless he follows the rules. The Minister, in a Democracy, is bound to follow the rules. If the Government which frames the rules itself ignores them and do not follow, where is the rule of law and where is justice? This is nothing but a most extraordinary way of functioning of a democratic Government and it is blatant use of arbitrary power by a Minister, violating all canons of law and practice. This kind of orders can only be expected from' autocrats like the Nizam, who was not bound by the rules, not even the rules framed by himself. But, not so, by ministers of a democratic government, functioning under a Constitutioa The rules arid practices well established are sacrosanct for a democratic government. It is obvious that the Hon'ble Ministers in this case are very anxious to oblige the persons that recommended the case, at one time by a Zilla Parishad Chairman, and all other times, some MLA or the other. Obviously, the Minister is not aware that he has no such power to grant paroles, unless he follows rules. Perhaps, he may not be aware that there are rules in existence.

11. But, what happened to the bureaucracy and the Home-Department that deal with these matters in the Home Department?

12. If a Minister passes an order against the rules, existing, it is the duty of the concerned Secretary or the Deputy Secretary to bring it to the notice of the Minister that passed the orders, that there are rules in existence, and that they should be followed; and without following those rules and the procedure the order may not be correct and sustainable. Obviously, this has not been done in this case. Thus, the concerned Secretary or the Deputy Secretary have failed in their duties in not bringing the rules to the notice of the Minister.

13. Whatever, it may be, the orders passed by the Home Minister in this case in granting, first, parole to the persons who were convicted for the offence of murder; and who were given life sentences by a Court; and whose appeal is still pending in the High Court; and to whom the High Court refused to grant bail; without following the parole rules formulated under GOMS. No. 647, Home (prisons-C) dt. 23rd Oct., 1981; and against the provisions of Section 432(2) of the Cr. P.C. Wherein it is laid down that 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, are bad in law and are unsustainable.

14. Here, the learned Public Prosecutor tried to argue that since it is stated in the Section 432 that Govt. 'may' require the Presiding Judge of the Court and the word 'may' gives discretion to the Government to call for the opinion of the Court or not. In my opinion this is not correct. The Government may not call for the report, if it does not want to suspend or remit the sentence; but, 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 Section 432(5) of the Code of Criminal Procedure in what manner the parole is to be granted to the prisoners. Therefore, in my opinion, the orders passed by the Minister in granting parole to these respondents are bad in law.

15. Then, the learned Public Prosecutor argued that this application is filed under Section 482 of the Code of Criminal Procedure and the said provision is not applicable to the facts of this case. 1 think there is substance in this argument. Section 482 reads thus:

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court to otherwise to secure the ends of justice.

From the reading of the Section it appears that the court can exercise its inherent powers under this section only when the subordinate court to the High Court abuses the process of the Court. In other words when a Subordinate Court passes an illegal order or any order that goes against the provision of this Code or results injustice to the party before the Subordinate Court, then and then only the inherent powers of the High Court can be invoked. We can get support for this opinion in a number of decisions. The decision reported in Mallikarjuna Rao v. State of A.P. ILR 1962 Andh Pra 755 a single Judge of this Court had an occasion to observe that the inherent power under the provision Section 561A of Cr. P.C. of the Court cannot be exercised in regard to matters specifically covered by the other provisions of the Code. Section 561A of the Cr. P.C. is analogus to that of Section 482 of the new Code.

16. In another decision reported in Ahmad Din v. Rijha Singh : AIR1950All652 a judge of Allahabad High Court observed that Section 561A empowers the High Court to interfere if necessary when something contrary to law has been done by a subordinate Court. It thus presupposes that there is an order of a Court, But where an order passed by a Magistrate in his executive capacity his order cannot be interfered under Section 561A as that section has no application in such a case.

17. Justice Chinnappa Reddy of this Court had an occasion to observe in re-Devaiah : AIR1969AP444 that Section 561A of the Cr. P.C. preserves the inherent power of the High Court to make suitable orders (1) to give effect to any order under the Code (2) to prevent abuse of the process of the Court (3) it does not empower the High Court to interfere with executive authorities and (4) the order under the section to secure the ends of justice must be in relation to a proceeding in the High Court or any subordinate criminal Court and that proceeding too must have judicial character and not of an executive or administrative one.

18. Another judge of Patna High Court reported in Kula Chandra Dutt v. Emperor AIR 1946 Pat 191 : 47 Cri LJ 339 observed Section 561A comes into operation only when the impugned order is passed by a 'court'. If the order moved against in the High Court is one passed by an executive officer of the Crown in his administrative capacity, Section 561A, is not attracted. It is not necessary to enumerate the decisions. Herein the case before us, the parole is an administrative order and not even a quasi judicial order and therefore, Section 482 of the Code of Criminal Procedure is not applicable to the facts of this case. Thus, even though the order passed by the Government in granting parole to the respondents is bad in law, in view of the fact that the application before me is filed under Section 482 of the Code of Criminal Procedure the same is liable to be dismissed, and the same is dismissed accordingly.


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