APHC010369242025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3396] TUESDAY, THE TWENTY THIRD DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA WRIT PETITION NO: 19214/2025 Between: SHABEER KHAN /BROTHER OF P.LIYAKAT ALI KHAN, (C.T. NO 9709 PRESENTLY LODGED IN CENTRAL PRISON, KADAPA) AGED ABOUT 56 YEARS, OCC- BUSINESS R/O. 9-4-136/218, FLAT NO. 101, FATIMA MANZIL, JAMALI KUNTA, QULI QUTUB SHAH COLONY, TOLICHOWKI, HYDERABAD, 5000008, TELANGANA. HYDERABAD. MOBILE NO. 7893790677. ...PETITIONER AND 1. STATE OF ANDHRA PRADESH, REP. BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT (PRISONS), ANDHRA PRADESH SECRETARIAT, AMARAVATI, GUNTUR (DISTRICT) 2. THE DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL SERVICES, ANDHRA PRADESH, VIJAYAWADA. 3. THE SUPERINTENDENT, CENTRAL PRISON, KADAPA. ...RESPONDENT(S): Counsel for the Petitioner: 1. SHAIK KARIMULLA Counsel for the Respondent(S): 1. GP FOR HOME The Court made the following: ORDER: This Writ Petition is filed under Article 226 of Constitution of India with the following prayer for: “.... Writ of Certiorarified Mandamus, or any other appropriate Writ, order or direction calling for the records pertaining to the impugned rejection order issued vide Letter No.687742/Paroles and HRC/A2/2019 dated 09/08/2021 issued by the 1st Respondent herein 2 and quash the same, as the order has been passed without application of mind, is malaflde, has been passed on extraneous and wholly irrelevant considerations, relevant materials have been kept out of consideration, and the order suffers from arbitrariness, it being in violation of Article 14 and Article 21 of the Constitution of India and also in violation of Principles of Natural Justice, and further direct the Respondents to consider premature release of the petitioner’s brother P.Liyakat Ali Khan (C.T. No 9709 presently lodged in Central Prison, Kadapa) by following the judgement rendered by the Hon’ble Supreme Court in the case of State of Haryana and Others vs. Jagdish.” 2. Heard Ms.Pushpendra Kaur, learned Senior Counsel assisted by Sri Shaik Karimulla, learned counsel for the Petitioner and Ms.A.Jayanthi, learned Government Pleader for Home. 3. Learned Senior Counsel for the Petitioner would submit that the brother of the Petitioner viz., P.Liyakat Ali Khan, who is a life convict for the offence under Section 364-A IPC, who has been in Central Prison, Kadapa and who has completed more than 24 years of imprisonment, is entitled to be released on remission. Learned Senior Counsel would further submit that the brother of the Petitioner was convicted in the year 2004 for the offence under Section 364-A IPC and the G.O existing on the date of conviction was G.O.Ms.No.17, dated 17.01.2003 and as per the said G.O., the said offence does not find place in the prohibited sections listed therein. It is further submitted that, as per the judgment of the Hon’ble Apex Court in State of Haryana vs. Jagdish1, the policy that was existing on the date of conviction shall be applicable to the life convict to release him on remission. Learned Senior Counsel would further submit, though the brother of the Petitioner falls under 1 2010 (4) SCC 216 3 the ambit of G.O.Ms.No.17, the Respondents have arbitrarily rejected his case by relying on G.O.Ms.No.6, dated 09.01.2019 and the G.O has to operate prospectively but not retrospectively. Learned Senior Counsel would finally submit that, in view of G.O.Ms.No.17, dated 17.01.2003, the brother of the Petitioner may prematurely be released. In support of their contentions, learned Senior Counsel has placed reliance on the judgments of the Hon’ble Apex Court in Rajo @ Rajwa @ Rajendra Mandal vs. State of Bihar and others2, Joseph vs. State of Kerala & Others3. 4. Per contra, learned Government Pleader for Home would submit that, the convict prisoner is not eligible for grant of special remission as per the G.O.Ms.No.17 dated 17.10.2003 as he does not satisfy the condition of completion of 7 years of actual sentence and 10 years of total sentence as he served 6 years 7 months and 8 days of actual sentence including the remand period and excluding of parole period. Subsequently, The Government of Andhra Pradesh vide G.O.Ms.No.283 Home (Prisons-C) Department dated 30.10.2010 had issued guidelines for grant of special remission to the Life Convict Prisoners on the occasion of Republic Day, 2011 in which, the Convict Prisoner herein was found ineligible for grant of special remission, since the convict prisoner herein had not fulfilled the 7 years of actual sentence, as he had served only 6 years 7 months and 8 days of actual sentence including the remand period and excluding of parole period. It is further submitted that, in 2 2023 (3) ALT (Crl.) 104 (SC) 3 2023 LawSuit (SC) 940 4 the year 2019, the Government of Andhra Pradesh vide G.O.Ms.No.6, dated 26.01.2019 had issued guidelines for grant of special remission to the life convict prisoners on the occasion of Republic Day and the case of the present convict is barred from the consideration for grant of premature release in terms of the barring clauses laid down in the said G.O. 5. As seen from the material placed on record, P.Liyakat Ali Khan, who is the brother of the Petitioner herein, was convicted and sentenced to undergo life imprisonment and to pay fine of Rs.1,000/-, in default, to suffer simple imprisonment for a period of three months, for the offence under Section 364- A IPC on the file of the Court of IV Additional Sessions Judge, Kurnool in Sessions Case No.244 of 2002 vide judgment dated 05.03.2004. Thereafter, the life convict preferred appeal in Crl.A.No.488 of 2004 against the said judgment before the Composite High Court of A.P. The appeal was also dismissed confirming the judgment passed by the learned Sessions Judge vide judgment dated 28.01.2006. The matter was taken to the Hon’ble Apex Court by way of Criminal Appeal No.665 of 2006, and the same was also dismissed confirming the judgments passed by the High Court and the trial Court. 6. Admittedly, the convict prisoner has served 19 years 6 months and 5 days of actual sentence including the remand period as on 18.08.2025 and 24 years 2 months and 6 days sentence including the remission as on 18.08.2025. The State has been issuing instructions relating to premature release of the convicts from time to time. Undisputedly, in the year 2004, i.e., 5 by the date of conviction of the convict prisoner i.e., 05.03.2004, G.O.Ms.No.17 dated 17.01.2003 was in existence. For ready reference, relevant guidelines framed under the said G.O., are extracted hereunder: “4. The Standing Committee constituted in Para 3 above, shall meet once in a year, preferably in the month of January to review the cases of life convicts who fulfill the conditions given below and recommend for their premature release by the Government. (i) Live convicts who have completed 7 years of actual sentence (including a minimum period of one year in Open Air Jail) and 10 years of total sentence including remission as on 31st December of the preceding year, in which the review is taken up. …….. …….. 5. The following categories of prisoners though they are covered by Section 433-(b) of the Cr.P.C. 1973 and Section 55 of the I.P.C., 1860 are not eligible to be placed before the Standing Committee:- …….. …….. (vi) Prisoners convicted for crimes against women, under Sections 366, 366-A, 366-B, 367, 372, 373, 376, 304(B) of IPC, 1860 and Dowry Prohibition Act while being sentenced to imprisonment for life and also prisoners who are convicted for life along with offences under Sections 354, 498-A, 306 of IPC, 1860 where the victims are women.” 7. It is pertinent to mention that the brother of the Petitioner was convicted for having committed the offence under Section 364-A IPC. As seen from guideline No.5(vi) referred to supra, Section 364-A IPC does not find place in the prohibited Sections listed therein. Subsequent to G.O.Ms.No.17 also, the Convict Prisoner herein was found ineligible for special remission as per G.O.Ms.No.283, dated 30.10.2010, since, he had not fulfilled the 7 years of actual sentence, and had served only 6 years 7 months and 8 days of actual 6 sentence including the remand period and excluding of parole period. Subsequently, in the year 2019, the Government had issued G.O.Ms.No.6, dated 09.01.2019, with certain guidelines for grant of special remission to the life convicted prisoners on the occasion of Republic Day on 26.01.2019. Having been served more than 24 years of imprisonment, the brother of the Petitioner approached the High Court by filing W.P.No.3850 of 2019, for grant of Special Remission as per G.O.Ms.No.17, dated 17.01.2003, but the same was not considered by the Government, in view of the subsequent policy in G.O.Ms.No.6, dated 09.01.2019. 8. It is the contention of the learned counsel for the Petitioner that the date of conviction and sentence against the brother of the Petitioner was 05.03.2004 and the policy which was in existence at that point of time was G.O.Ms.No.17, dated 17.01.2003. As such, the policy which was in existence as on the date of conviction is applicable to consider the case of the convict prisoner for his premature release. In support of his contentions, learned counsel has placed reliance on the judgment of the Hon’ble Apex Court in Jagdish’s case (supra), wherein, it was held as under: “43. The right of the respondent prisoner, therefore, to get his case considered at par with such of his inmates, who were entitled to the benefit of the said policy, cannot be taken away by the policy dated 13.08.2008. This is evident from a bare perusal of the recitals contained in the policies prior to the year 2008, which are referable to Article 161 of the Constitution. The High Court, therefore, in our opinion, was absolutely justified in arriving at the conclusion that the case of the respondent was to be considered on the strength of the policy that was existing on the date of his conviction. State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for pre-mature release would be considered 7 after serving the sentence, prescribed in the short sentencing policy existing on that date. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. In case a liberal policy prevails on the date of consideration of the case of a "lifer" for pre-mature release, he should be given benefit thereof. 44. As per the information furnished by the appellant-State of Haryana, the respondent Jagdish has served more than 14 years (actual) on 12.2.2009 i.e. prior to the date of judgment impugned herein dated 17.2.2009. By now, the respondent has served (actual) for more than 15 years. Respondent falls in category 3 of the prisoners as he did not indulge in any organised crime. 45. Accordingly, for the reasons given hereinabove, we find no reason to interfere with the judgment of the High Court, which is hereby affirmed. The appeal is dismissed accordingly, subject to the direction that the appellant- State Government shall proceed to calculate the sentence for the purpose of consideration of remission in the case of the respondent as per the policy dated 04.02.1993. 53. The right of the respondent prisoner, therefore, to get his case considered at par with such of his inmates, who were entitled to the benefit of the said policy, cannot be taken away by the policy dated 13.08.2008. This is evident from a bare perusal of the recitals contained in the policies prior to the year 2008, which are referable to Article 161 of the Constitution. The High Court, therefore, in our opinion, was absolutely justified in arriving at the conclusion that the case of the respondent was to be considered on the strength of the policy that was existing on the date of his conviction.” 9. In Rajo’s case (supra), the Hon’ble Apex Court held as follows: “23. This court, on earlier occasion, had grappled with the situation of different remission policies/rules prevailing at different points of the convict’s sentence – i.e., when the policy on the date of conviction, and on the date of consideration for premature release, are different. It has been held that the policy prevailing on the date of the conviction [See State of Haryana v. Raj Kumar, (2021) 9 SCC 292 [para 16]], would be applicable. However, in Jagdish (supra) it was also recognised that if a more liberal policy exists on the date of consideration, the benefit should be provided: “43. […] The State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for premature release would be considered after serving the sentence, prescribed in the 8 short-sentencing policy existing on that date. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. In case a liberal policy prevails on the date of consideration of the case of a “lifer” for premature release, he should be given benefit thereof.” 10. In Joseph’s case (supra), the Ho’ble Apex Court held as follows: “[8] Mr. Adolf Mathew, learned counsel appearing on behalf of the petitioner, challenged the state government's repeated rejection of his plea for premature release. It was pointed out that the remission policy prevailing on the date of the conviction would have to apply. Attention was drawn to Rule 545A of the 1958 Rules which stipulates release can be considered after 14 years: Rule 216(1), 244(2) and 299(c) of the 1958 Rules which state that the inmate shall be released after completion of 20 years of sentence; and the recommendations of the National Human Rights Commission (NHRC) which prescribes mandatory release after 25 years of sentence. Furthermore, even in terms of Rule 377 of the new Prison Rules, 2014, the petitioner is entitled to release after 20 years. It was argued that since the petitioner has not only completed 14 years or 20 years, but even 25 years of actual imprisonment, at this juncture regardless of which rules are applied, it was manifestly illegal to keep him incarcerated in perpetuity. [9] Mr. Mathew strongly opposed the state's policy dated 14.06.2022 (and executive instruction dated 20.04.2022 cited in the state's counter affidavit) which listed certain crimes, the commission of which put the convict beyond the scope for grant of remission. The executive instruction (which explicitly prohibits the release of a prisoner involved in the "murder of a woman"), it was argued - not only came after his completion of 25 years of incarceration, but in any case could not override the statutory provisions. Counsel submitted that the petitioner had a legal right to be considered for remission given the safeguards of a convict under Articles 20 and 21 of the Constitution of India: this legal right was guaranteed by the Prison Act, and the Rules framed under it. ***** [34] In the petitioner's case, the 1958 Rules are clear - a life sentence, is deemed to be 20 years of incarceration. After this, the prisoner is entitled to premature release. (See also this court's order dated 11.10.2018 in Criminal Appeal No. 276-278/2010.] The guidelines issued by the NHRC pointed out to us by the counsel for the petitioner, are also relevant to consider that of mandating release, after serving 9 25 years as sentence (even in heinous crimes). At this juncture, redirecting the petitioner who has already undergone over 26 years of incarceration (and over 35 years of punishment with remission). before us to undergo, yet again, consideration before the Advisory Board, and thereafter, the state government for premature release would be a cruel outcome, like being granted only a salve to fight a raging fire, in the name of procedure. The grand vision of the rule of law and the idea of fairness is then swept away, at the altar of procedure which this court has repeatedly held to be a "handmaiden of justice". [35] Rule 376 of the 2014 Rules prescribes that prisoners shall be granted remission for keeping peace and good behaviour in jail. As per the records produced by the State, the petitioner has earned over 8 years of remission, thus demonstrating his good conduct in jail. The discussions in the minutes of the meetings of the Jail Advisory Board are also positive and find that he is hardworking, disciplined, and a reformed inmate. Therefore, in the interest of justice, this court is of the opinion, that it would be appropriate to direct the release of the petitioner, with immediate effect. It is ordered accordingly. [36] The writ petition, thus, stands allowed in the above terms. Pending applications, if any, are disposed of.” 11. In the case on hand, the case of the convict prisoner for special remission has not been considered by the Government, in view of the policy in G.O.Ms.No.6, dated 09.01.2019. However, as mentioned supra, the date of conviction of the brother of the Petitioner was 05.03.2004, during which period, the policy under G.O.Ms.No.17 was in existence. In view of the judgments referred to supra, the policy which was subsisting as on the date of conviction of the convict prisoner has to be taken into consideration while granting special remission to the individual. The latter policy i.e., G.O.Ms.No.6 dated 09.01.2019 would have prospective operation and thus would not apply to the convict prisoner herein, as he was convicted in the year 2004. 10 12. While dealing with the similar set of facts, the Hon’ble Apex Court in its recent judgment in Sukhdev Yadav @ Pehalwan vs. State of (NCT of Delhi) & Others4, categorically held as follows: “15.4. In the instant case, the actual imprisonment of twenty years was admittedly completed by the appellant on 09.03.2025 which was without any remission. If that is so, it would imply that the appellant has completed his period of sentence. In fact, the award of the aforesaid sentence was also confirmed by this Court. On completion of twenty years of actual imprisonment on 09.03.2025, the appellant was entitled to be released. The release of the appellant from jail does not depend upon further consideration as to whether he has to be released or not and as to whether remission has to be granted to him or not by the Sentence Review Board. In fact, the Sentence Review Board cannot sit in judgment over what has been judicially determined as the sentence by the High Court which has been affirmed by this Court. There cannot be any further incarceration of the appellant herein from 09.03.2025 onwards. On the other hand, in the instant case, the appellant’s prayer for furlough was refused by the High Court and, thereafter, this Court granted furlough only on 25.06.2025 as he had completed his actual sentence by then, pending consideration of the amended prayer made by the appellant herein on completion of his sentence on 09.03.2025. Therefore, the continuous incarceration of the appellant from 09.03.2025 onwards was illegal. In fact, on 10.03.2025, the appellant ought to have been released from prison as he had completed the sentence imposed on him by the High Court as affirmed by this Court.” 13. In the case on hand, as admitted by Respondent No.3 in their counter, the brother of the Petitioner i.e., the life convict, has served 19 years 6 months and 5 days of actual sentence including remand period as on 18.08.2025 and 24 years 2 months and 6 days sentence including remission as on 18.08.2025. Further, the life convict was also released from jail on 14 days furlough i.e., from 21.11.2024 till 06.12.2024. During the said period, there were no adverse remarks against the convict prisoner as certified by the 4 2025 INSC 969 11 concerned Inspector of Police and after completion of said furlough period, he was surrendered to the Central Prison, Kadapa. 14. In view of the foregoing discussion, judgments referred to supra, and in the light of Article 21 of the Constitution of India, the convict prisoner herein, shall not be deprived of his life or personal liberty. Having been completed more than 24 years of total sentence, the convict prisoner is entitled to Special Remission, as per G.O.Ms.No.17, dated 17.01.2003, which was in existence as on the date of his conviction. 15. In the result, the Writ Petition is allowed setting aside the impugned order of rejection vide Letter No.687742/Paroles & HRC/A2/2019, dated 09.08.2021. Respondents are hereby directed to consider the case of the Convict No.9709 viz., Patan Liyakat Ali Khan, S/o.Khadar Ali Khan, presently lodged in Central Prison, Kadapa, for special remission by following the judgement rendered by the Hon’ble Supreme Court of India in Jagdish’s case (supra), within a period of two weeks from the date of receipt of copy of this order. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed. ________________________________________ Dr.JUSTICE VENKATA JYOTHIRMAI PRATAPA Date:23.09.2025 Dinesh 12 HON’BLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA W.P.No.19214 of 2025 Dt.23.09.2025 Dinesh