M.H.S. Ansari, J.@mdashThe petitioner is a junior counsel who appeared in Criminal Appeal No. 991 of 1994 on the file of this Court which was disposed of by orders dated 20-4-1995. That appeal arose out of a judgment of the Sessions Court in S.C. No. 270 of 1993 on the file of learned Sessions Judge, Chittoor. One Sri Ganachari Annadurai and Sri Ganachari Chinnabba were tried for offences u/s 302, I.P.C. and Section 304 r/w Section 34, I.P.C. respectively. The learned Sessions Judge convicted both the persons for the said charges respectively levelled against them and sentenced them to undergo imprisonment for life. The Criminal Appeal No. 991 of 1994 was allowed by this Court in respect of Ganachari Chinnabba and the sentence imposed upon him was set aside and he was directed to be set at liberty forthwith by the said orders D/- 20-4-1994. However, the said appellant Ganachari Chinnabba was not released from the Jail and continued in custody. The above writ petition is filed for issue of a writ of Habeas Corpus declaring the custody of Sri Ganachari Chinnabba Accused No. 2 in Cr. No. 66 of 1992 of Chittoor Taluk Police Station even after acquittal in Criminal Appeal No. 991 of 1994 by this High Court as illegal and for a further direction for release and for award of damages for retention in the illegal custody from 21-4-1995.
2. A Counter affidavit has been filed on behalf of the respondents by Sri. T. Janardhan Rao, Jailer, Central Prison, Cuddapah. It is stated in the said Counter affidavit that the respondent No. 1 was not aware of the verdict of this Court D/- 20-4-1995 in Crl. Appeal No. 991 of 1994. On enquiries made by the deponent of the Counter affidavit, it was revealed that the judgment copy in question had been sent to the Superintendent, Central Jail, Rajahmundry and Superintendent, Central Jail, Warangal who have no concern with the said prisoners. The prisoners in question were undergoing sentence at Central Prison, Cuddapah and the name of the said Central Prison is not mentioned in the copy of the judgment. The deponent addressed a letter to the Office of the High Court D/- 1-7-1995 for sending a copy of the said judgment in Criminal Appeal No. 991 of 1994 and a reminder letter D/- 18-7-1995. At the same time, the Superintendents, Central Prisons, Hyderabad, Warangal and Rajahmundry were also requested for transmitting the judgment copy in Crl. Appeal No. 991 of 1994. The Superintendent, Central Prison, Warangal vide his letter No. JC2/8702/1995, D/- 22-7-1995 received on 28-7-1995 forwarded a copy of the said judgment and thereupon the convict was released on the same date itself. It is stated that the unfortunate circumstances, reference to which has been made above, the judgment copy was not received and respondent could not therefore release the said prisoner and immediately has taken necessary steps for releasing the prisoner, no sooner the copy was received from the Superintendent, Central Prisons, Warangal.
3. A Counter affidavit has also been filed on behalf of the Registrar (Judicial), Andhra Pradesh High Court, Respondent No. 2 wherein reference has been made to Rule 124 of the Criminal Rules of Practice. It lays down that the Memorandum of Criminal Appeal other than an appeal presented to the Jail Officer shall have to indicate the name of the jail in which the appellant is lodged on the date of filing of criminal appeal before the High Court. It is further stated in the said Counter affidavit of Respondent No. 2 that when the petitioner presented Criminal Appeal No. 991 of 1994 in the Registry of High Court on 24-10-1994 along with a Criminal Misc. Petition No. 3685 seeking Bail on behalf of the appellants pending appeal, the criminal section of the High Court Registry endorsed the following objection :
"in which jail, accused lodged was not given in the Criminal MP".
4. The endorsement of Court Officers Section has responded with the following endorsement :
"The counsel for the appellants was informed to furnish the jail in which the accused is lodged. Even after several requests will date, the Advocate has not responded."
5. It is further stated that after the judgment in Crl. Appeal No. 991 of 1994 was pronounced by the Division Bench, the High Court Registry sent Advance Copy of the judgment on 24-4-1995 to the following seven addresses.
1. The Sessions Judge, Chittoor.
2. The Superintendent, Central Jail, Chanchalguda, Hyderabad.
3. The Vth Additional Munsif Magistrate, Chittor.
4. The Station House Officer, Chittor Taluk P.S., Chittor.
5. 2 C.Cs to the P.P. High Court.
6. The Superintendent, Central Jail, Rajahmundry.
7. The Superintendent, Central Jail, Warangal.
The original order was despatched on 20-6-1995. The copies were also granted to all the above seven and also to the following three.
(1) Director General of Police, Hyderabad.
(2) The Deputy Inspector General of Police (Crimes), Hyderabad.
(3) The Director General of Prisons, Hyderabad.
The copy of the judgment was not marked to the Superintendent of Central Jail, Cuddapah wherein the accused was lodged. Failure to send the copy of the judgment to the first respondent, it is submitted is neither intentional nor wanton.
6. It may be useful to look into certain provisions of the Criminal Procedure Code, the Prisoners Act, 1900 the Prison Rules, 1979 and the Criminal Rules of Practice and Circular Order 1990 which specifically deal with appeals and release of prisoners.
Section 388 of Cr.P.C. says that order of High Court on appeal has to be certified to the lower Court by which the finding, sentence or order appealed against was recorded. Sub-section (2) of Section 388, Cr.P.C. further says that the Court to which the High Court certifies its judgment or order shall there upon make such orders as are conformable to the judgment or order of the High Court and if necessary, the record shall be amended in accordance therewith.
The Criminal Rules of Practice and Circular Orders 1990 i.e., Rules and Orders for the guidance of the Criminal Courts in the State were issued by the High Court in exercise of the powers conferred by Article 227 of the Constitution of India and Section 477 of Cr.P.C. 1973.
Rules 109, 110, 167 and 168 of Criminal Rules of Practice and Circular Order, 1990 deal with procedure to be followed after the judgment is pronounced by the appellate Court.
Rule 109 of the said Rules says that whenever an appellate Court modifies a sentence of imprisonment it shall prepare a fresh warrant in accordance with the terms of the order passed and send the same along with the copy of the order direct to the Superintendent or Officer-in-Charge of the Jail and recall and cancel the original warrant of commitment.
Rule 110 of the said Rules deals with warrant of release. It says whenever an appellate Court reverse a sentence of imprisonment, it shall prepare a warrant of release and shall send the same by regd. Post with acknowledgment due along with a copy of the order direct to the Officer-in-Charge of the Jail in which the appellant is confined. It shall at the same time recall and cancel the original warrant of commitment which shall be attached to the record of the original Court and returned to it.
Rule 167 says that whenever the High Court certifies its judgment or order to a lower Court u/s 388 or Section 405 of Cr.P.C., it is the duty of the latter Court to issue the necessary warrant to release or modify the sentence, and it shall be governed by Rules 106, 108 to 111.
Rule 168 says that order of the High Court in appeal or revision when certified to a lower Court shall be issued in duplicate and the lower Court shall on receipt of the order, forthwith send copy of it to the Superintendent or Officer-in-Charge of the Jail in which the prisoner is confined along with the warrant.
Rule 168 further says that if the High Court''s Order is an order of release, one copy shall be sent direct from the High Court to the Superintendent or Officer-in-Charge of Jail, Warrant or release shall be in Form No. 45 of Criminal Rules of Practice.
Chapter-LV of the A.P. Prison Rules, 1979 deals with release of prisoners. Rule 988 of the said Rules says that no action shall be taken on a telegram directing release of a prisoner, unless it has been sent by a Secretary to Government or the Registrar of the High Court.
Chapter-XXXII of Cr.P.C. deals with execution, suspension, remission and commutation of sentences. Part-B of the said Chapter deals with imprisonment. Section 417 of Cr.P.C. deals with power to appoint place of imprisonment.
Section 417 of Cr.P.C. says except when otherwise provided by any law for the time being in force, the State Government may direct in what place any person liable to be imprisoned or committed to custody shall be confined.
Section 418 of Cr.P.C. deals with return of warrant on execution of sentence. It says when a sentence has been fully executed it shall return the warrant to the Court from which it is issued with an endorsement under his hand certifying the manner in which the sentence has been executed.
Section 29 of the Prisoners Act 1900 authorises the transfer of prisoners from one prison to another within the State.
Rules 1039, 1041 and 1069 of A.P. Prison Rules 1979 deal with the transfer of prisoners.
Rule 1039 says that the Inspector General is authorised to sanction the transfer of prisoners from one jail to another within the State.
Rule 1041 says that as an ordinary rule, prisoner other than prisoners sentenced to imprisonment for life shall not be transferred until the expiry of the period allowed for appeals, or until the result of their appeal is known.
Rule 1069 of the said Rules deals with communication of annulment of sentence. It says that Superintendent of the Prisons from which a prisoner has been transferred shall immediately communicate to the Superintendent of the receiving prison by regd. Post any notice which may be received regarding the annulment or modification of sentence on appeal. The Rule further says that any warrant received from a Court after correction or for any additional sentence, after the transfer of a prisoner, should also be sent by regd. Post to the Superintendent of the Prison to which the prisoner has been transferred.
Rule 124 of the Criminal Rules of Practice and Circular Orders 1990 deal with cause title of Memo. of Appeal. As per the said Rule where the Appellant-accused is in jail, the cause title to the Memorandum of Appeal should indicate the Jail in which the accused has been confined.
From the above, it will be seen that under Rule 109, when a sentence of imprisonment if modified, a fresh warrant is to be prepared in accordance with the terms of the order passed and under Rule 109, it has to be sent along with a copy of the order direct to the Superintendent or Officer-in-charge of the Jail recalling and cancelling the original warrant of commitment. In case of reversal of sentence of imprisonment, a warrant of release has to be prepared under Rule 100 and the same has to be sent along with a copy of the order direct to the Officer-in-charge of the Jail in which the appellant is confined at the same time recalling and cancelling the original warrant of commitment. Under Rule 168, if the High Court Order is an order of release, one copy of the order shall be sent direct from the High Court to Superintendent of the jail concerned in Form No. 45 of Criminal Rules of Practice.
7. Power is conferred under the Prisoners Act, 1900 to transfer prisoners from one place to another within the State. Under Rule 1041 of Prison Rules, 1979, referred to above, ordinarily, a prisoner sentenced to imprisonment for life shall not be transferred until the expiry of the period allowed for appeals or until the result of their appeal is known. Under Rule 1069, it is laid down that after the transfer of a prisoner, any warrant received from a Court after correction or of an additional sentence, the said warrant should also be sent to the Superintendent of the Prison to which the prisoner has been transferred.
8. Care has thus been taken under the relevant provisions of law and rules to ensure compliance with promptitude of any orders of release or modification of sentence when the appellant-accused is in jail. It is essential that the provisions of law and the rules referred to above and Rule 124 Cr.P.C. need to be strictly adhered to by the authorities including the Courts. This we state in the found hope and expectation that there shall be no re-occurrence of any incident in future as in the instant case.
9. Rule 124 of the Criminal Rules of Practice and Circular Orders, 1990 deal with cause title of Memorandum of Appeal where the appellant-accused is in jail, the cause title to the Memorandum of Appeal should indicate the jail in which the accused has been confined. A duty is thus cast upon the learned counsel representing the appellant-accused to comply with the said requirement of law.
10. In the instant case, it is observed that in the cause title, the jail in which the accused was lodged was not stated and even after the endorsement by the Court Officers Section, this requirement was not complied with. Consequently, copy of the judgment of this Court and Form No. 45, referred to above, were not forwarded to the Superintendent, Central Jail, Cuddapah, wherein the appellant/accused was lodged. The copies marked and forwarded to the Superintendent of Central Jail, Rajahmundry, Superintendent, Central Jail, Warangal, the Director General of Police, Inspector General of Police (Crimes) and Director General of Prisons, however, were not acted upon nor any effort was made by any of the said authorities to ascertain the jail where the Appellant-accused was lodged for taking appropriate steps. It was not even ascertained by any of the said authorities whether the orders of this Court had been acted upon. In effect, there was no follow up action by any of the said authorities based upon the copies of the judgment forwarded to them by this Court.
11. The facts are thus not in dispute. The accused, Ganachary Chinnabba was undergoing sentence for life imprisonment and this Court by orders dated 20-4-1995 in Criminal Appeal No. 991 of 1994 set aside the said sentence and directed his release. The advance copy of the judgment was sent on 20-4-1995 to the concerned authorities, but not to the Superintendent of Central Prison, Cuddapah wherein the accused was lodged. Even though he was directed to be released forthwith by orders dated 21-4-1995, he was set at liberty only on 28-7-1995 after the above writ petition was filed. The said Ganachari Chinnabba was thus illegally detained from 21-4-1995 till he was set at liberty on 28-7-1995 that is to say for over three months.
12. The instant case is thus one of illegal detention after orders of acquittal have been passed and the one question for determination is whether the said accused is entitled to claim damages.
13. Article 21 of the Constitution guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law. "Personal liberty" under Article 21 primarily means freedom from physical restraint of person by any incarceration or otherwise. The expression "procedure established by law" has come to be understood to mean, the procedure prescribed by law of the State. On the Criminal Appeal No. 991 of 1994 having been allowed, the said Ganachari Chinnabba was entitled to be set at liberty on 21-4-1995. His continued detention for whatever reasons thereafter has to be held illegal and violative of the fundamental rights guaranteed under Article 21 of the Constitution.
14. On facts, the instant case is similar to
15. A Division Bench of this Court (comprising of Chief Justice and myself), in State of Andhra Pradesh v. Suramalla Ramulu 1996 (2) ALD 512, considered the liability of State to pay compensation and the power of this Court under Article 226 to award monetary compensation for contravention of fundamental right and referred to the legal conspectus and principles laid down by the Supreme Court in the various judgments. For the sake of convenience, the relevant observations from that judgment are extracted hereinbelow :
"11. In
"It may be mentioned straightway that award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to whom the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which the compensation is awarded in such proceedings."
16. In the light of the above, there can be no dispute as to the power of this Court under Article 226 of the Constitution to award monetary compensation for contravention of the fundamental right in appropriate cases. It has therefore to be held that the State, in the instant case, is liable to pay compensation for the illegal detention of the said Ganchari Chinnabba which we estimate and quantify the total compensation at Rs. 6000/- (Rupees Six Thousand only) on the facts and in the circumstances of the case.
17. Let a Writ accordingly issue directing the State of Andhra Pradesh to pay the said sum of Rs. 6000/- (Rupees Six Thousand only) to the said Ganachari Chinnabba within a period of two months from the date of receipt of a copy of this order.
18. With directions as above, Rule is made absolute. No costs.
19. Order accordingly.
