Decided on April 06,1992



- (1.)Petitioner is the widow of late Sri Thirumalareddy Showrireddy, who was murdered at 7.00 p.m. on 5-10-1987. Police had registered crime No. 86/87 of Gurajala Police Station against the 3rd respondent and 15 others under sections 302 read with S. 34, IPC, as also under sections 324 and 326, IPC. The crime was tried as S.C. No. 351/88 by the 1st Addl. Sessions Judge, Guntur. It was subsequently transferred to the Court of Session, Ongole, where it was re-numbered as S.C. No. 11/91. The Sessions Judge, Ongole in his judgment dt. 4-10-1991 found the 3rd respondent and three others guilty of offence punishable under S. 302 read with S. 34, IPC. He sentenced them to undergo imprisonment for life and convicted two other accused under sections 324 and 326. The Sessions Judge acquitted the other accused. 3rd respondent and other accused who were convicted filed Criminal Appeal No. 1035/91 against the conviction and sentence. That appeal is pending. They also filed Criminal M.P. No. 2611/91 for suspension of the sentence and for their consequential release on bail, pending disposal of the appeal. This Court dismissed the application in so far as it related to 3rd respondent and three other accused (A-1 to A-4) and granted bail in respect of A-5 and A-6 who were convicted only under sections 324 and 326 of the I.P.C. 3rd respondent who was the 1st accused in the Sessions case had been elected as Member of the State Legislature from Gurajala Constituency. Since his application for bail was not granted, 3rd respondent was sent to Sub-Jail, Ongole. According to the petitioner, the 3rd respondent, using his position as M.L.A. got himself admitted in Government hospital Ongole on 5-10-91. He was subsequently referred to the Government General Hospital, Guntur and was housed in a special ward. On the allegation that the 3rd respondent had no ailment which justified his continuance in the hospital, petitioner had filed W.P. No. 3760/92, which was admitted on 17-3-1992. On 16-3-1992, Government issued G.O. Rt. No. 738 Home (Prisons-C) Department, dt. 16-3-1992, suspending the sentence of the 3rd respondent from the date of release till the end of the Assembly Session, for the purpose of enabling him to attend the Session. The order was passed purportedly under S. 432, Cr.P.C. 3rd respondent was released soon thereafter from the General Hospital, Guntur. Petitioner submits that the hospital authorities have been accommodating the 3rd respondent on the pretext of ailment which he was not suffering from.
(2.)Petitioner submits that the order of the State Government under S. 432, Cr.P.C. is illegal and vitiated by malafide exercise of power. She also submits that the Government should not have exercised its power under S. 432 of the Criminal P.C. Petitioner submits further that the Government had no power to suspend the sentence under S. 432, Cr.P.C. without reference to the Court which tried him. She submits that the Government should not have exercised its power for the purpose of subverting an order of the appellate Court refusing to grant bail to the 3rd respondent during the pendency of the appeal. She also submits that the Government granted suspension of sentence of the 3rd respondent only due to extraneous and irrelevant political influences. On these grounds petitioner submits that the order is liable to be set aside. She therefore seeks a declaration that G.O. Rt. No. 738 Home (Prisons-C) Department, dt. 16-3-1992 issued by the 1st respondent is arbitrary, illegal, void and without jurisdiction.
(3.)This Writ Petition was filed on 23-3-92. It was numbered and posted for admission on 24-3-1992. Government Pleader took notice before admission and requested time for filing counter. My learned brother Syed Shah Mohd. Quadri, J., ordered that in view of the urgency of the matter, the Writ Petition will be posted on 26-3-92 at 2.15 p.m. On 27-3-92, after hearing the matter at some length, Quadri, J., ordered the matter to be posted before another Judge on Monday. It was thereafter that the matter came up before me on 30-3-92. Even though counsel for the 3rd respondent had taken notice, his name was not printed in the list on that day. He therefore sought time. Counsel for the petitioner submitted that the Session of the Assembly was likely to close the very next day and therefore it was essential that the matter was heard immediately. I requested the Government Pleader to verify whether the Session was closing on that day or the next day. I was told that the Session was not likely to close on 30th and was likely to continue. On the basis of that submission, I adjourned the matter for hearing on 31-3-92. On that day, I heard counsel for the petitioner, the Government Pleader and Sri R. Venugopal Reddy appearing for the 3rd respondent. Apparently, on the assumption that the Session of the Legislative Assembly was likely to continue. I posted the matter for further arguments on the request of the counsel for the 3rd respondent, to 1-4-92. In the meantime, the session of the Legislative assembly was adjourned since die on 31-3-92. Counsel for the petitioner insisted that there shall be a decision on the validity of the order passed by the State Government purportedly under S. 432 of the Criminal P.C. He submitted that unless the point of jurisdiction is clarified, the 3rd respondent who wields considerable influence at the political level, is likely to stay out of the jail by repeated exercise by the State Government of the alleged power under S. 432, Cr.P.C. in a wanton and irresponsible manner. I, therefore heard counsel on both sides at great length.

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