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The Deputy Inspector General of Police, North Range and ors. Vs. D. Rajaram and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1960CriLJ565
AppellantThe Deputy Inspector General of Police, North Range and ors.
RespondentD. Rajaram and ors.
Excerpt:
.....sentenced, simple imprisonment for like term,..........55 of the indian penal code.section 402: 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.16. what we have now to determine is whether the governor of the andhra state exercised his power under the relevant provisions of the criminal procedure code or under those traceable to article 161. indisputably, article 161 is of much wider amplitude enabling the governor to give an unconditional and absolute pardon, while section 401 does not empower him to do any such thing. for solving this problem, we have-to look to the terms of the notification,17. it is true that the words 'general amnesty were employed in the preamble to that order. that expression may lend some countenance to the.....
Judgment:

P. Chandra Reddy, C.J.

1. These two appeals are against the orders of Umamaheswaram J. in Writ petitions Nos. 439 and 613 of 1954. The question arising in both the appeals is the same and they could, therefore, be disposed of by a common judgment, although the respondents are different. The respondent in Writ appeal No. 90 of 1956 was a Sub-Inspector of Police, while the respondents in the other appeal were Police Constables working under this Sub-Inspector. The Sub-Inspector was dismissed from service on 20-10-1953 by the Deputy Inspector General of Police, and the constables were dismissed on 30-10-1953 by the District Superintendent of Police, as they were convicted of offences involving moral turpitude Under Sections 331, 348, etc. of die Indian Penal Code and were awarded various terms of imprisonment.

They filed appeals against their convictions and sentences in the High Court of Madras. Pending the appeals, the Andhra State was formed in October 1953. In January 1954, the Government of Andhra declared a general amnesty to all the prisoners by Order Ms. No. 20, Law Department dated 12-1-1954. The respondents are some of those, who had the benefit of that order.

2. Having regard to the role that order plays in the context of this enquiry, it is useful to read it here :

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 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, (i) that all prisoners including women com-victed for crimes committed in Andhra area and now in Jails both in Andhra and also in the Jails meant for the reception of Andhra prisoners in Mysore, viz. die Centra] Jail, Bellary; and the Alipuram Jail, Bellary and in the Madras States viz. the Presidency Jail for Women, Vellore, should be released. All condemned prisoners also are to be released including those in respect of whom referred trials or petitions ior mercy are pending :

XX XX XXThe 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 15-2-1954, 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.

3. By way of clarification, Government issued another order on 2-6-1954, which is in the following words .

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 limits the unexpired portion of the sentences passed on die prisoners mentioned in the annexure to these proceedings with effect from the dates specified against them.

4. After the respondents were released from Jail, they withdrew their appeals as not pressed on 5-5-1954. Immediately, the respondents asked the concerned authorities for postings. They were told that they were already dismissed with effect from 80-9-1952. Thereupon, die respondents moved this Court under Article 226 of die Constitution to quash the orders of dismissal.

5. It was contended before Umamaheswaram J., who heard the Writ Petitions, that the Notification dated 12-1-1954, had the effect of releasing die offenders from the consequences of die offences and that the offenders were freed from all disabilities r which attached to their convictions. Another contention advanced on behalf of the respondents was that the orders of dismissal pending appeals to the High Court were illegal as they violated Police Standing Order No. 77. Both these arguments prevailed with the learned Judge with the result that he quashed die orders impugned. Aggrieved by that order, the State of Andhra have preferred these appeals.

6. The view of the learned Judge on both these aspects is canvassed before us by the learned Advocate-General appearing for the Government. The argument presented by him is that Umamaheswaram J. relied in support of his opinion on rulings of American Courts, which were concerned with the different situations and, therefore, they would not govern the notification in issue. In our opinion, this contention is admissible and must be given effect to. The American cases dealt with the effect of the proclamation made by the President Jackson of the United States in 1802 extending unconditionally and without reservation full pardon and amnesty for the offence of treason against the State to all persons who had participated in rebellion, with restoration of all rights, privileges and immunities under the Constitution and the laws which were made in pursuance thereof.

7. The pardon granted under that amnesty was the subject of frequent consideration by American Courts. Having regard to the terms of such a proclamation, it was decided in Knote v. United States (1877) 24 Law Ed 442, that the grant of such a pardon would result in the blotting out of die offence and that thereafter the convicted person could assert all his legal rights, since it removed all the penalties of the offence. We may usefully refer to the dictum of Field J. who delivered die opinion of the Court, in this context:

A pardon is an act of grace by which an offender is released from the consequences of Ills offence, so far as such release is practicable and within control of the pardoning power or of officers under its direction. It releases the offender from all disabilities imposed by the offence and restores to him all his civil rights. In contemplation of law, it so far blots out the offence, that afterwards it cannot be imputed to him to prevent the assertion of his legal rights.

8. Osborn v. United States (1876) 23 Law Ed 388, is in accordance with the above doctrine. It was observed by Field J. that it was the very essence of a pardon that it releases the offender from the consequences of his offence.

9. It is unnecessary to multiply citation of the American decisions. Suffice it to say that the consensus of opinion of that Court is that a pardon operating on a crime absolved the convicted person not only from the actual punishment awarded to him but from other penal consequences. This view seems to be shared by English Courts also.

10. In Hay v. Justices of Tower Division of London (1890) 24 QBD 561, Hawkins J., said that directly the crime of which a man had been convicted was pardoned, he was absolved not only from the punishment inflicted on him by the Judge, who pronounced sentence, but from all penal consequences such as disqualification from following his occupation.

11. So, it is well settled that when a convicted person is pardoned, he is free both from the punishment imposed on him as also from all penal consequences and that such disqualifications as disentitle him from following his occupation and which are concomitant of the conviction are removed. Then, is the position arising out of the present notification analogous to the proclamation issued by the President of the United States in 1868 immediately after the rebellion?

12. It is true that the powers of the President of the Indian Republic and the Governor under the Constitution bear a close resemblance to those exercised by the President of the United States of America under Article II, Section 2 (1) of the Constitution, which defines the powers of the President in that behalf; It runs thus :.and shall have power to grant reprieves and pardons for offences against the United States except in cases of impeachment.

It is apparent that such powers are vested in the President of our Republic also. The relevant Article 72(1), so far as it is material for this enquiry, runs thus :

1. The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commit the sentence of any person convicted of any offence :

(a) XX XX XX(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.

2. 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 of a State under any law for the time being in force.

13. We will now notice Article 161 which bestows authority on the Governors of States in that behalf :

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.

14. This read in conjunction with paragraph 2 of Article 72 shows that Governors, in regard to matters to which the executive power of the State extends, have powers similar to those of the President.' It is seen that these two provisions confer distinct powers on Governors such as the grant of pardons, reprieves, respites or remissions of punishment or the commutation of any sentence and each has a distinct connotation. Articles 72 and 161 reproduce the sovereign powers possessed by the King of England. One of such powers is contained in the provisions of the Criminal Procedure Code, namely, Sections 401 and 402 which will be adverted to presently.

15. It is evident from Article 161 that the grant of pardon is not the same thing as the remission of a sentence in whole or in part. They are two different things having distinct operation. As already pointed out, the power of the appropriate Governments to grant remission of sentences is derived from Sections 401 and 402 of the Criminal Procedure Code. Those Sections runs as follows :

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 which the person sentenced accepts suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

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: 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.

16. What we have now to determine is whether the Governor of the Andhra State exercised his power under the relevant provisions of the Criminal Procedure Code or under those traceable to Article 161. Indisputably, Article 161 is of much wider amplitude enabling the Governor to give an unconditional and absolute pardon, while Section 401 does not empower him to do any such thing. For solving this problem, we have-to look to the terms of the notification,

17. It is true that the words 'general amnesty were employed in the preamble to that order. That expression may lend some countenance to the argument that what was granted was a general pardon, since the meaning of the word 'amnesty' is a general pardon. But that does not afford us much guidance in deciding the exact scope of the notification. It is plain from the concerned notification that the prisoners in the various jails in the State of Andhra were to be released to celebrate the inauguration of the Andhra State. The subsequent order makes it clear that what was remitted was the unexpired portion. Even independently of the second order, the notification of 12-1-1954 is explicit. Its purpose was to set the prisoners then in jails free.

In this connection we could not also overlook the fact that Section 401, Cr.PC. under which orders for release were to be promulgated is cited. This notification does not purport to afford any pardon to the prisoners nor does it make any reference to Article 161 of the Constitution. Thus, the order of the Government in question is limited to the remission of sentences wholly and has a limited operation. That cannot bo equated to a pardon. We are unable to agree with the learned Judge that there could bo no question of remitting the sentence in regard to prisoners upon whom sentence of death was inflicted. The learned Judge expressed his difficulty m that regard in these words :

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 die sentence for 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 for 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 tfiat in regard to other prisoners sentenced to varying terms of imprisonment, there was only a remission of sentence.

18. Undoubtedly, the material provisions of the Criminal Procedure Code extracted above empower the concerned Government to remit a sentence of death. The word 'remit' as used in those Sections is not a term of art. Some of the meanings of the word 'remit' are to pardon, to refrain from inflicting, to give up. There is, therefore, no obstacle in the way of the Governor in remitting a sentence of death.

19. In Ramchandra Rao v. Revenue Divisional Officer, Kowur 1956 Andh WR 1071 : (S) A.I.R. 1957 Andh Pra 249, Chief Justice Subbarao and Bhima-sankarain J. disagreed with the view expressed by Umamaheswarum J., in the Writ Petitions. With respect, we are in agreement with the learned Judges in that regard. That being the position the only result of the .notification is that the prisoners were absolved only from the punishment that was inflicted on them but not from the other penal consequences flowing from the conviction. Therefore, it did not touch the dismissal of the respondents in this case and leaves it unaffected.

20. Alternatively, it was contended on behalf of the respondents that the orders impugned have violated the Police Standing Orders. The contention pressed upon us by the counsel for respondents is that Rule 77 of the Madras Police Standing Order prohibits the dismissal of a delinquent officer pending an appeal against his conviction. Rule 77, so far as it is material, runs as follows :

1. No Police Officer, convicted of an offence and sentenced to imprisonment shall be retained in service without the special order of the Inspector-General.

2. XX XX XX3. An order of dismissal shall not be passed until the conviction has been finally upheld on appeal or the time allowed for appeal has expired.

21. Here, we have to consider the impact of paragraph 3 of the orders of dismissal in these cases. The Police Standing Orders are framed by the Inspector General of Police Under Section 9 of the Madras District Police Act (1859). Section 9 reads as follows :

The Inspector General may, from time to time subject to the approval of the State Government frame such orders and regulations as he shall deem expedient, relative to the general government and distribution of the force, the places of residence, the classification, rank and particular service of the members thereof, their inspection, the description of arms, accoutrements and other necessaries to be furnished to them; to the collecting and communicating intelligence and information; and all such other orders and regulations relative to the said Police Force as the said Inspector General shall, from time to time, deem expedient for preventing abuse or neglect and for rendering such force efficient in the discharge of all its duties.

22. It is manifest that this Section authorises the Inspector-General of Police, to make rules in regard to matters of an administrative and Touting character. The power to make rules in regard to disciplinary matters is not one of those enumerated therein. The machinery to be devised to deal with disciplinary matters is to be set up by the rules to be framed by the State Governments. The power to make these rules is conferred on the Government by Section 10. That Section recites :

Subject to the provisions of Article 311 of the Constitution and to such rules as the State Government may, from time to time make under this Act, the Inspector General, the Deputy Inspectors-General and District Superintendents of Police may at any time dismiss, suspend or reduce to a lower post, or time scale, or to a lower stage in time scale, any officer of the Subordinate Police whom they shall think remiss or negligent in the discharge of his duty or otherwise unfit for the same and may order the recovery from the pay of any pecuniary loss caused to Government, by his negligence or breach of orders.

23. It is under this Section that the rules bearing upon the procedure to be followed and the punishment to be awarded to Police Officers for any of the reasons envisaged in the Section were made by the Government. The relevant rule is Rule 3 (b) of the Madras Police Subordinate Services Discipline and Appeal Rules, which lays down the procedure for the conduct of enquiries in disciplinary proceedings. The procedure indicated in that sub-rule is inapplicable to a person who has been convicted by a competent Court and for an offence involving moral turpitude.

A delinquent officer could not get the benefit of that rule and no opportunity need be furnished to such a person. That rule also does not denote that the authority inflicting punishment should await the disposal of the appeal. The proviso to Clause 2 of Article 311 of the Constitution definitely says that Article 311 could not apply to a person, who was dismisised or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. This proviso dispenses with the requirement of Article 311 in the case of a convicted person.

24. It is true that the guilt of a person could not be said to be finally adjudicated upon pending an appeal. But, in our opinion, the dismissal is not rendered void by the circumstance that an appeal is pending. Of course, it would be more convenient to await the result of an appeal, so that it may not necessitate the passing of two orders. We think that Sub-section (3) of Police Standing Order No. 77 is conceived in the interests of administrative convenience.

It is difficult to say that it results in order of dismissal becoming null and void. If the officer succeeds in his appeal he will be restored to the position, which he occupied before the order of dismissal,

25. Assuming that the standing order has the effect that is attributed to it, we do not think that this Court will be justified in interfering with those orders in exercise of its power under Article 226 of the Constitution. It should be noted that the appeals were withdrawn as not pressed even before the Writ Petitions were filed and, therefore, they were dismissed. This establishes that the convictions were finally upheld. So, even if the relief asked for is granted, and the respondents are restored to their old position, the next moment they will be dismissed. Thus, it is a mere formality, which does not give any relief of substance, this Court will not stultify itself by passing orders under Article 226 of the Constitution, which are ineffectual. So, this argument is also unsubstantial and has to be negatived.

26. In the result, the appeals filed by the Government are allowed and the Writ Petitions are dismissed. Parties will bear their costs throughout.


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