Attam Tulasi vs State of Andhra Pradesh and Others

This is an application filed by the petitioner, Smt. Attam Tulasi, represented by her mother, Smt. Attam Komaramma. The petitioner has been arrested on 19-11-1987 and lodged in Central Jail, Rajahmundry, she having been convicted for the offence of murder committed by her at the age of 17 years 7 months.

The petitioner prays for the issue of a writ of mandamus declaring her arrest as illegal and unjust and the sentence of life imprisonment imposed on her as being unsustainable and violative of Art. 21 of the Constitution with a further consequential direction to release her forthwith from the Central Jail, Rajahmundry.

The facts of the case are that the petitioner, Smt. Attam Tulasi, was working as a Preliminary Training Nurse in K.G. Hospital, Visakhapatnam during 1965. While she was working there, she was charged with the murder of a newly born baby to her on 17-9-1965, punishable under S. 302 of the I.P.C. Along with the petitioner, another girl, by name Chada Satyavati, was also charged with the same offence. The Sessions Court, Visakhapatnam, acquitted both the accused vide its judgment dt. 11-2-1966 in S.C. 52/65. The State went in appeal to the High Court in Cr.A. No. 655 of 1966. A Division Bench of the High Court, relying on circumstantial evidence, convicted the petitioner Smt. Attam Tulasi, who was accused No. 1, and sentenced her to undergo imprisonment for life while acquitting accused No. 2 Chada Satyavati.

The petitioner says that she was not aware of the appeal in the High Court and no appeal was filed in the Supreme Court against the order of her conviction sentence of imprisonment for life passed by the High Court on 17-4-1968. However, what is surprising is that the petitioner Smt. Attam Tulasi was arrested on 19-11-1987, after a period about 19 years 7 months after the passing of the order of conviction and sentence of life imprisonment. The assertion made by the petitioner is that she was always available for arrest all these years and was never aware of her conviction by the High Court. The petitioner further states that she has been completely in the dark about the sentence passed against her and she is unable to comprehend why the arrest was made after a period of about 20 years after the passing of the sentence against her.

The petitioner further submits that after her acquittal by the Sessions Court, Visakhapatnam, on 11-2-1966, she returned to her native village Manuguru in Khammam District and continued to live there. The petitioner was never absconding and she was doing menial jobs now and then for the upkeep of the family. It seems that both the mother and daughter were under the genuine impression that the appeal of the State preferred in the High Court has been dismissed. However, the petitioner Smt. Attam Tulasi was taken completely by surprise on 19-11-1987 when she was arrested and when for the first time she came to know of her conviction by the High Court. It is also mentioned in the affidavit filed in support of the writ petition that during the interruption of her acquittal on 11-2-1966 till her arrest on 19-11-1987, the petitioner was continuously applying to the District Employment Exchange, Kothagudam, for suitable employment, her registration number being SE-W-903-75-X01.10. Further, the registration in the Employment Exchange was renewed regularly from 29-3-1975 to 31-8-1978. In the year 1973-74 she got married to one Burra Parasuramulu and has been living with him at House No. 10-99, Chechupalli Gram Panchayat. She holds a ration card bearing No. 20898 and her name is also shown in the voters'' list of Chechupalli Gram Panchayat. These are all facts which are narrated in great detail in the affidavit filed by the mother of the petitioner to show that the petitioner had never had any intention of absconding or evading the arrest in pursuance of the order of the High Court. The petitioner, therefore, seeks release on the grounds that her arrest has been made after a period of about 20 years after the sentence was passed against her. According to her, that by itself is enough to order her release from the prison. The petitioner further asserts that had she been arrested in time, she would have had the benefit of being detained in the Borstal School under the Andhra Pradesh Borstal Schools Act, 1925, which is now denied to her. In this view of the matter it is urged that a humane view of the situation must be taken and the petitioner shall be ordered to be released forthwith from the Central Prison, Rajahmundry.

The first question to be decide in this write petition is whether this court, in exercise of its jurisdiction under Art. 226 of the Constitution, can investigate into the facts and circumstances which resulted in the delayed arrest of the petitioner after a period of about 20 years after conviction by a Division Bench of this High Court under S. 302 of the I.P.C. In the counter affidavit filed on behalf of respondent No. 2 a detailed account of the Non-Bailable Warrant issued for the arrest of the petitioner is given. Indeed, a reading of the above said contentions in the counter affidavit gives an impression that perhaps the petitioner has been successfully evading arrest despite several Non-Bailable Warrants issued by the authorities in that regard. She was finally arrested at 5-45 p.m. on 19-11-1987. In an application for the issue of mandamus it is not open for this court to pronounce a judgment on the factual aspect of her matter lying between the period of her acquittal by the Sessions Court and arrest in lieu of the judgment of the High Court in Crl. Appeal No. 655/66, on 19-11-1987. These are all intricate questions of fact which cannot be gone into in this write petition. Suffice it to state, however, that the petitioner was arrested on 19-11-1987 and has been ever since then in the Central Prison at Rajahmundry.

The other aspect of the matter which has been considerably stressed by the learned counsel for the petitioner, Sri K. Suryanarayana, is the fact that had the petitioner been arrested immediately after the pronouncement of the judgment in Criminal Appeal No. 655/66 in 1968, she would have been aged about 20 years 2 months and would have been entitled to be admitted in the Borstal School. On this hypothesis the learned counsel for the petitioner develops an argument that the petitioner would have been set at liberty after the attainment of 23 years of age. In my opinion, all these arguments are in the realm of conjecture and they do not have any practical value for the purpose of a decision in this case. The fact remains that the petitioner was not arrested before the attainment of 23 years of age and now there is no relevancy of the argument that had she been arrested promptly, she would have been left off from the Borstal School after attaining the age of 23 years. This hypothetical argument need not be considered at any great length in this writ petition because the question involved now is whether any indulgence can be shown to the petitioner who has been guilty of an indiscretion committed at the young age of 17 years 7 months by giving birth to an illegitimate baby who was subsequently done to death by her.

The third submission made by the learned counsel for the petitioner is that the judgment of the Division Bench is passed on mere circumstantial evidence and surmises and does not stand to reason and, therefore, the conviction and the sentence against the petitioner should be set aside. I am very clearly of the opinion that it would just not be possible for this court exercising the writ jurisdiction under Art. 226 of the Constitution to set aside the order of conviction and sentence of imprisonment for the life passed by a Division Bench of this High Court. Moreover, it cannot be argued that the retention of the petitioner is without the authority of law as she has been detained in prison on her conviction on a criminal charge under S. 302 of the I.P.C. by a court of competent jurisdiction. The learned counsel for the petitioner has tried to rely upon the provisions of Art. 21 of the Constitution which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. It is evident that Art. 21 of the Constitution cannot be pressed into service in a case of this nature. It is true that no person can be deprived of his life or personal liberty but surely it does not mean that even in case of conviction of persons by the competent criminal court they cannot be deprived of their personal liberty by being incarcerated in a prison. It is not the case of the petitioner that she has been arrested without any authority of law or that she has been deprived of her personal liberty by an order which is not sustainable in law. On the other hand the arrest of the petitioner is in pursuance of an order of conviction and sentence passed against her in Criminal Appeal No. 655/66. The only question is why she was not arrested for a period of about 20 years after the judgment in Crl.A. No. 655/66. As stated earlier, the case of the respondent No. 2 is that all possible human efforts were made to arrest the petitioner and several Non-Bailable Warrants were issued from time to time but her whereabouts were not known. The case of the petitioner is that she was always available for arrest and it was known that she was living in her own house eking out her livelihood by doing odd jobs. I have already taken the view that the period of 20 years during which the arrest was not effected bristles with facts which are clearly disputed between the parties and it is not within the domain of the writ jurisdiction to go into these facts.

This court is not in a position to grant the request of the petitioner for declaring the arrest on 19-11-1987 of the petitioner as illegal and unjust nor is it possible to set aside the order of conviction and sentence of life passed against her as being violative of Art. 21 of the Constitution and to direct release of the petitioner from the Central Prison, Rajahmundry, where she is now confined.

The learned Advocate-General, who appeared for the respondents in this case, has invited my attention to two decisions of the Supreme Court reported in Gopal Vinayak Godse Vs. The State of Maharashtra and Others, and Col. Dr. B. Ramachandra Rao Vs. The State of Orissa and Others, . A reading of both the decisions clearly points to the fact that any sentence passed in exercise of a criminal jurisdiction can be remitted only by the appropriate authority under the relevant provisions of the Indian Penal Code. A prisoner sentenced to life imprisonment is bound in law to serve the life term in prison. The rules framed under the Prisons Act enable such a prisoner to earn remission - ordinary and special and State - and the said remissions will be given credit towards his term of imprisonment. In Col. Dr. B. Ramachandra Rao Vs. The State of Orissa and Others, which was essentially a case for the issue of writ of habeas corpus, it was opined by the Supreme Court that the court does not, as a general rule, go into the questions whether the cases against the petitioner are not true and they have been engineered by some high placed individuals for mala fide reasons etc. What the court is concerned is the legality of the detention order passed in a particular case which can be set at naught by the issue of a writ of habeas corpus. It is, therefore, evident that the matter now precisely lies with the authorities who have the power to grant pardons, reprieves, respites or remissions of punishments to the petitioner in appropriate cases or commute the sentence in certain cases. Under Art. 161 of the Constitution it is provided as follows :

"161. Power of Governor to grant pardons, etc. and to suspend, remit or commute sentences in certain cases :-

The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishments 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."

In my opinion this is a fit case in which the powers vested in the Governor of the State can be invoked by the petitioner herein. It is no doubt true that she has been convicted for an offence under S. 302 of the I.P.C. but the surrounding circumstances of the case, the tender age at which the offence was committed, the subsequent delay of about 20 years in the arrest of the petitioner and that fact that she has now settled down and got married and is leading a normal life are all factors which will have to be taken into consideration while considering the case of the petitioner for any pardon or remission for commutation of sentence to which she may be entitled. Therefore, it is for the petitioner to take such steps as may be available to her for getting remission of the sentence in accordance with law.

With the above observation, the writ petition is dismissed, but, in the circumstances of the case, there will be no order as to costs.

Advocate''s fee Rs. 250/-.

Petition dismissed.