GOVT. OF A.P. AND ORS. versus M.T. KHAN

Citation: [2003] SUPP. 6 S.C.R. 490 · Decided: 05-12-2003 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
GOVT. OF A.P. AND ORS. 
V. 
M.T. KHAN 
DECEMBER 5, 2003 
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] 
Constitution of India-Articles 14 & 161 I Criminal Procedur~ Code, 
1973-Section 432-State issuing order granting remission of sentences to 
different categories of prisoners-Category of prisoners undergoing sen-
C tence in the State convicted by court of another State excluded-Validity 
of--Held, the appropriate Government which passed the Government 
Order has no power under the 1 aw to grant remission to such category 
of prisoners-Hence, the exclusion is valid and legitimate-Transfer of 
Prisoners Act, 1950. 
D 
Petitioner-State issued a Government Order by which the Gov-
ernor of the State in exercise of the powers conferred under Article 
161 of the Constitution of India granted remission of the unexpired 
period of the sentences of different categories of prisoners co111victed 
by tile courts in the State. The Government Order included the 
E category of prisoners who have been convicted by courts of the State 
and undergoing sentences in other States and excluded the category of 
prisoners who were, convicted and sentenced by courts in othell" States 
and undergoing sentences in the petitioner-State. Writ petitions before 
High Court challenging the exclusion of the category from the ben'efit 
of the Order of remission as ,being arbitrary, discriminatory and 
F violative of Article 14 of the Constitution. The State contended before 
the High Court that the it had no power to grant remissions to 
prisoners undergoing sentences in the State pursuant to convidions by 
the courts in other States. The High Court allowed the wrif petitions 
holding that the State had the_ power to grant remission for such 
G category of prisoners also and hence the exclusion was arbitrary and 
discriminatory. 
In appeal, the petitioner-State contended that the appropriate 
Government of the State has no power to grant remission to the 
H category of prisoners undergoing sentences in the State convicted by 
490 
·
GOVT. OF A.P. v. M.T. KHAN 
491 
courts in other States under Section 432(1) of the Criminal Procedure A 
Code, 1973 read with Article 161 of the Constitution of India. 
Allowing the appeals, the Court 
HELD: 1.1. The Government has full freedom in excluding the B 
category of persons which it thinks expedient to exclude. To the extent 
the benefit of clemency to a given case or class of cases is a matter of 
policy and to do it for one or some they need not do it for all, as long 
as there is no insidious discrimination involved. In the given case, it 
was not only due to lack of power, but also because of conscious 
decision to exclude in the background of what it considered to be lack C 
of authority and hence no exception could be taken to the same 
h:gitimately. [496-E-F-G I 
1.2. It is inconceivable that a Council of Ministers of the State can 
render any appropriate advice in respect of accused persons convicted D 
by courtsin other States or that it could be competent to do so. The 
Transfer of Prisoners Act, 1950 does not throw any light on the 
controversy as wrongly held by the High Court. It only enables 
transfer of .prisoners from one State to another State. It does not 
purport to confer jurisdiction on the transferee State the power of 
remission in respect of transferred prisoners. There is no scope of E 
judicial modification or modulating the same so as to extend the 
concession in excess of the very objective of the maker of the order 
which seems to have been guided by considerations of State policy. The 
scheme of remission cannot be modified or extended to the category 
of prisoners to which it was specifically excluded. (498-D-E-F-GJ 
F 
1.3. The High Court was not justified in obliterating a part of the 
Government Order and extending the benefits to the concerned 
prisoners. It amounts to the Court re-making the policy and redoing 
. the Government Order itself. [499-C-DI 
State of Madhya Pradesh v. Ratan Singh & Ors., [1976) 3 SCC 470, 
relied on. 
G 
State of Punjab & Ors. v. Joginder Singh & Ors., AIR (1990) SC 
1396 and Sanaboina Satyanarayan v. Governm.ent of Andhra Pradesh & H 
492 
SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R. 
A Ors., (2003) 5 sec 343, referred to. 
Surjit Singh v. State of Punjab, ILR (1975) 1 P & H 201, referred 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 
B 551-552 of 1997. 
c 
From the Judgment and Order dated 11.4.96 of the Andhra Pradesh 
High Gourt in 

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