Judgment Jeevan Reddy, J.: 1. This is a petition for issuance of a writ of habeas corpus, questioning the legality of the continued incarceration of four convicts, namely (i) M.Jagaram (ii) Badija, (iii) Roopla and (iv) Kistu, being Convicts Nos.4919, 4920, 4924 and 4929 respectively. All the four persons have been convicted under section 396, I.P.C. and sentenced to life imprisonment. The petitioner's contention is that clause (3) of paragraph 3 of G.O.Ms.No.580, Home (Prisons-C) Department, dated 20.10.1984, is void being arbitrary and violative of Article 14 of the Constitution. If the said clause is held to be arbitrary. It is admitted the first of the four convicts, namely, M.Jagaram (Convict No.4919) is entitled to be released; the other three convicts are not entitled to be released in any event. 2. Section 432 of the Code of Criminal Procedure, 1973, confers both upon the Central Government and the State Governments the power to suspend the execution of the sentence, or to remit the whole or any part of the punishment to which a person has been sentenced. This power can be exercised with, or without any conditions. Section 433 confers upon the appropriate Government, i.e. both upon the State Governments, as well as the Central Government, the power to commute the sentence, including the sentence of death. Section 433-A , which has been introduced by the Amendment Act 1978 , with effect from 18.12.1978, however, places a restriction upon the power conferred by sections 432 and 433. According to this section which, of course, has been held not to have retrospective operation (see: Maru Ram v. Union of India Maru Ram v. Union of India A.I.R. 1980 S.C. 2147 where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by Law, or where a sentence of death imposed upon a person has been commuted under section 433 into imprisonment for life, nothing contained in section 432 shall empower the State Government to release such person from prison unless he has served: “at least fourteen years of imprisonment. The petitioners were convicted prior to 18.2.1978; hence section 433-A has not application to them.” 3. The petitioners were convicted prior to 18.2.1978; hence section 433-A has not application to them.” 3. It is clear that the powers of suspension, remission and commutation conferred upon the Central Government and State Governments by the aforesaid provisions, and de hors the powers conferred upon the President by Article 72 , and upon the Governor by Article 161 of the Constitution. 4. In exercise of its power under section 432, the Government of Andhra Pradesh issued G.O.Ms.No.580 dated 20.10.1984, directing the release of certain convicts subject to the conditions specified therein, on the occasion of anniversary of the formation of the State of Andhra Pradesh on 1st November, 1984, and the restoration of democratic rule in the State. It would be appropriate to set out the G.O. in its entirety: “….. Government of Andhra Pradesh Abstract Prisoners - Grant of Remission to prisoners on the occasion of Anniversary of the Formation of Andhra Pradesh State on 1st November, 1984 and the restoration of democratic rule in the State - Orders - Issued, HOME (PRISONS-C) DEPARTMENT G.O. Ms. No. 589 Dated 20th October, 1984. ORDER: On the occasion of the anniversary of the Formation of Andhra Pradesh State on 1st November, 1984 and the restoration of democratic rule in the State, the Government have decided to grant remission to certain categories of prisoners who have been convicted for offences against laws relating to matters to which the Executive powers of the State extend. 2. Accordingly, in exercise of the powers conferred by section 432 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) the Government is pleased to remit and reduce the sentences of the following categories of the prisoners in the State who have been convicted by Civil Courts of Criminal Jurisdiction of the scales specified against each; except to the extent specified in paragraph below: (a) The prisoners sentenced for the life imprisonment and not governed by section 433(A) Criminal Procedure Code, and who have completed 7 years of actual sentence and 10 years of total sentence including remission shall be released. (b) The other lifers not governed by section 433(A) Criminal Procedure Code and who have undergone total sentence of 5 years shall be released. (b) The other lifers not governed by section 433(A) Criminal Procedure Code and who have undergone total sentence of 5 years shall be released. (c) All prisoners with a sentence of one year and above and not governed by (a), (b), (c) above shall be granted a special remission of one month for each year of sentence awarded. (d) Long term prisoners, other than lifers governed under section 433(A), Criminal Procedure Code, who have completed actual sentence of 5 years as on 31.10.1984. (e) All prisoners with a sentence below one year shall be granted a special remission of 15 days. (f) All prisoners, other than life convicts, who are 65 years of age and above as on 31.10.1984, shall be released. 3. The remission and reduction of sentences ordered in paragraph above shall also apply to prisoners who have been convicted by Courts situated within the State of Andhra Pradesh and are undergoing sentences in other States but shall not apply to the following categories of prisoners: 1. Prisoners convicted and sentenced by Courts situated outside the state of Andhra Pradesh. 2. Prisoners convicted of offences against laws relating to matter to which the executive powers of the Union extend. 3. Prisoners convicted for offences under sections 120-B , 121 to 130 , 359 to 377 and 395 to 402, Indian Penal Code. 4. Prisoners involved in and convicted for offences relating to Communal incidents. 5. Prisoners convicted under the Essential Commodities Act. 6. Prisoners convicted under the Protection of Civil Rights Act, 1955. 4. The Prisoners who are eligible for release under paragraph 2 above shall be released on 1st November, 1984. 5. The remission granted in Paragraph 2 above is in addition to the remission normally admissible to prisoners and granted to them on other important occasions earlier. 6. The Director-General and Inspector-General of Prisons is requested to take action accordingly and submit to Government a list of prisoners released from various jails and a separate list of prisoners who are granted special remission in accordance with the above orders, in the proforma given in the annexure to this order in triplicate for issue of formal orders by Government under section 432, Criminal Procedure Code. (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) A.S.Balraj, Principal Secretary to Government…” A reading of clauses (a) and (b) in paragraph 2 shows that persons sentenced to life imprisonment, for whatever offence it may be, are entitled to be released provided they have served the term prescribed in the said clause. Indeed, it has been held by a Bench of this Court that even persons sentenced to death, which has been commuted to life imprisonment, are entitled to be released, after serving a mere 5 years, under clause (b). (Of course, if the conviction is on or after 18.12.1978, then the restriction contained in section 433-A would apply, and such persons would necessarily have to serve 14 years). Many others also are given varying remissions under clause (c) to (f). 5. The first convict, M.Jagaram, is entitled to be released by virtue of clause (a) of paragraph 2, having completed 7 years of actual sentence and 10 years of total sentence, including remissions. According to the particulars furnished in the counter-affidavit, he has undergone actual sentence of 8 years, 14 days, and a total period (including remission) of 10 years, 10 months, one day, as on 31.10.1984, Which is the crucial date according to the G.O. But, he has not been released because of clause (3) of paragraph 3, which says that the prisoners convicted for offences under sections 120-B , 121 to 130 , 359 to 377 and 395 to 402, I.P.C. shall not be entitled to be released in pursuance of paragraph 2. The first convict, as stated hereinbefore, has been convicted under section 396, I.P.C. and sentenced to life imprisonment. The attack of the petitioner is, therefore, upon the validity of clause (3) of paragraph 3. The attach is mounted on the following grounds, viz., (i) the only restriction upon the State Government's power to grant remission is the one provided in section 433-A. This restriction has been placed by the Parliament itself. It is not open to the State Government to impose any further restriction upon it's power of remission; it cannot say that it's power of remission shall not be exercised in respect of certain other offences than those mentioned in section 433-A ; saying so amounts to amending section 433-A itself, which the State Government cannot do. Similar G.Os. It is not open to the State Government to impose any further restriction upon it's power of remission; it cannot say that it's power of remission shall not be exercised in respect of certain other offences than those mentioned in section 433-A ; saying so amounts to amending section 433-A itself, which the State Government cannot do. Similar G.Os. have been issued on several occasions, and everytime a clause similar to clause (3) of paragraph 3 is made with the result that persons convicted for the aforesaid offences are totally excluded from the benefit of the exercise of power of remission by the State Government; and (ii) assuming that it is open to the State Government to make a further classification and specify the offences in respect of which it will not exercise its power of remission, even then it must be held that the specification of offences in clause (3) of paragraph 3, disqualifying them from the benefit of remission, is unreasonable and arbitrary. The offences excluded from the benefit of remission are not very serious offences. More serious offences than these have not been so excluded, while excluding these offences. Some of there are of a minor nature. 6. On the other hand, the learned Addl. Advocate-General contended that, this is not a cause where the State Government is refusing to consider the cases of persons convicted for the offences specified in paragraph 3(3), but this is a case where the Government, taking into consideration the nature of these offences, has taken a conscious decision not to apply the benefit of remission to these offences. He submitted that the offences excluded are, offences against the State, and offences against the body like kidnapping, slavery, and offences relating to see and dacoity in all its forms, which are of a very serious nature. The learned Addl. Advocate-General further contended that, besides the persons convicted for these offences, the State Government has also refused the benefit of remission to those convicted under the Essential Commodities Act , Protection of Civil Rights Act , and the offences relating to communal incidents, i.e. those specified in Chapter XV of Indian Penal Code. The learned Addl. Advocate-General further contended that, besides the persons convicted for these offences, the State Government has also refused the benefit of remission to those convicted under the Essential Commodities Act , Protection of Civil Rights Act , and the offences relating to communal incidents, i.e. those specified in Chapter XV of Indian Penal Code. He submitted that the classification made, i.e. the specification of excluded offences is a reasonable one, and even if the Court considers that there are some more serious offences which ought to have been so excluded, it is not a ground for striking down the present classification/specification. The learned Addl. Advocate-General has also placed before us the file relating to the said G.O. which, of course, does not throw any light on the aspect relevant herein, viz., why, and on what basis were certain offences excluded from the benefit of remission? 7. G.O.Ms.No.580 is an instance of a general exercise of power of remission under section 432. The G.O. does not deal with any individual cases. It prescribes certain conditions and criteria, subject to which the remission is granted. The appropriate authorities are asked to identify the persons eligible for being released according to the said conditions and criteria. While exercising the said power, the State Government has stated that it will not exercise that power in the case of certain offences because, in its opinion, the nature of those offences is such as not to merit granting of the benefit of remission. We do not think that, adopting such a course amounts, in effect, to amending section 433-A. Section 432 expressly empowers the State Government to exercise the power. of remission either unconditionally, or subject to such conditions as it may think appropriate to impose and the person concerned may accept. Above all, section 432 is an enabling provision. It uses the expression ‘may’, which necessarily involves an element of discretion; it is always open to the State Government to say that it shall not exercise its power of remission in the case of certain offences. But then, it goes without saying, such exclusion, if and when made, should answer the test of reasonableness and fairness, which are the mandates of Article 14 of the Constitution. 8. But then, it goes without saying, such exclusion, if and when made, should answer the test of reasonableness and fairness, which are the mandates of Article 14 of the Constitution. 8. The second contention of Sri K.G.Kannabiran is that, excluding persons convicted of less serious offences from the benefit of remission while allowing persons convicted of graver crimes to enjoy the benefit of remission, is unreasonable and arbitrary. He submits, on the basis of the observations of the Supreme Court in Bhagirath v. Delhi Administration Bhagirath v. Delhi Administration (1985)2 S.C.C. 581, that the gravity of the offence should be judged on the basis of the measure of punishment provided therefor by the statute. In other words, larger the punishment, graver the crime; correspondingly, lesser the punishment, less grave is the crime. Counsel contends that it is not open to the Government to say that a particular offence for which a severe punishment is imposed, is nota serious offence, but an offence for which a very light punishment is imposed is a grave crime. Such a classification of Crimes, it is contended, is contrary to the scheme and intendment of the Indian Penal Code, and other penal enactments. It is pointed out that, while for the offence under section 302 the minimum punishment is life imprisonment, for the offence under section 396, the minimum punishment can even be six months, or an year- though, no doubt, the maximum punishment for both is death. While allowing persons convicted under section 302 to enjoy the benefit of remission, depriving the persons convicted under section 396, which is a less serious crime, is unreasonable. It is also pointed out that, among sections 395 to 402 which are excluded from the benefit of remission, there are several minor offences; at any rate, offences which are far less serious than murder. He points out that the punishment for an offence under section 395 is either imprisonment for life, or “rigorous imprisonment for a term which may extend of ten years”. Similarly, for offences under sections 397 and 398 , the punishment is “not less than seven years” for offences under section 399, the punishment is imprisonment for a term which may extend to ten years; and so on. Similarly, for offences under sections 397 and 398 , the punishment is “not less than seven years” for offences under section 399, the punishment is imprisonment for a term which may extend to ten years; and so on. Counsel contends that there is apparently no reason why such less serious offences are excluded from the benefit of remission while allowing persons convicted of graver crimes like murder, to enjoy the said benefit. Just as there is no presumption that every murderer is a professional or habitual murderer, there is equally no presumption that every person convicted of dacoity is a professional or habitual dacoit. 9. It is difficult to say that the contentions of the learned Counsel lack substance or force. In Bhagirath v. Delhi Administration. Bhagirath v. Delhi Administration. (1985)2 S.C.C. 581 relied upon by the learned Counsel, the Supreme Court observed: “As we have indicated earlier, graver the crime, longer the sentence and, longer the sentence, greater the need for set-offs and remissions. Punishments are no longer retributory. They are reformative…” The seriousness of a crime has to be Judged on the basis of the punishment prescribed for it by Parliament/Legislature. It would be against the spirit of the enactment and intendment of Parliament to say that, while the offence of murder (for which the maximum punishment is death and minimum punishment imprisonment of life) is a less serious crime, the offence under section 124-A (for which the maximum punishment if life imprisonment and minimum punishment can even be one year) is a more serious crime. Same reasoning applies to the offence under section 396, (for which too, the minimum punishment can even be one year, though the maximum punishment is death). Indeed, in the offences mentioned in paragraph 3(3), there are several offences carrying much lesser punishments. True it is that offences against State. Kidnapping, slavery, rape and dacoity are serious offences; but, so are many others, like bribery, misappropriation of public funds, counterfeiting of currency and coins, adulteration of medicines and food, which may indeed be called more serious having regard to their long-term pernicious consequences to the society; but they have not been excluded. The learned Addl. Advocate-General, we must say, fairly and promptly agreed with us that the offences of bribery, misappropriation of public funds, and the like are far more dangerous to the society than the offences like kidnapping or dacoity. The learned Addl. Advocate-General, we must say, fairly and promptly agreed with us that the offences of bribery, misappropriation of public funds, and the like are far more dangerous to the society than the offences like kidnapping or dacoity. Be that as it may, in view of the punishments prescribed by Parliament/Legislature, the only appropriate basis for determining the seriousness of the crime should be the measure of punishment provided therefor, and on this basis the exclusion of the offences mentioned in paragraph 3(3), while not excluding more serious offences like murder, is discriminatory and arbitrary. Neither the file produced before us nor the counter-affidavit discloses any reasons why these particular offences (enumerated in clause (3) of paragraph 3) have been picked out for exclusion; probably, it is only a repetition of a similar clause in earlier similar G.Os. It must accordingly be held that the enumeration of the said offences is arbitrary, and that the classification of offences for exclusion in the said clause, is not reasonable. 10. In view of the above opinion, it can legitimately, be argued that the economic offenders may also claim the benefit of the said G.O., which would not be in the interest of the society. We can only answer this argument by saying that, if economic offences are deemed by Parliament to be very serious - we have no doubt in our minds that they are far more serious than many other offences mentioned in the Indian Penal Code, and to which the benefit of the said G.O. is extended -it is for the Parliament to prescribe larger punishment therefor. For example, section 7 of the Essential Commodities Act provides maximum punishment only for one year, which is wholly understandable to us. Similarly, for the offence of bribery under section 161, IPC., the maximum punishment is three years. Indeed, in our opinion, a person who adulterates medicines, or manufactures spurious medicines, or a Government servant who passes off defective construction, or purchases defective or spurious goods out of corrupt motives, is a greater menace to the society than a person who, in a fit of emotion or passion, commits a murder. Indeed, in our opinion, a person who adulterates medicines, or manufactures spurious medicines, or a Government servant who passes off defective construction, or purchases defective or spurious goods out of corrupt motives, is a greater menace to the society than a person who, in a fit of emotion or passion, commits a murder. But, as rightly pointed out by Sri Kannabiran, it is not our subjective opinion that matters; it is the will of Parliament, as expressed in its enactments, that has to be taken as the guide to avoid application of differing and subjective standards. 11. For the above reasons, we are of the opinion that clause (3) of paragraph 3 of the impugned G.O. is void, being violative of Article 14 of the Constitution and is, accordingly, declared as such. The result would be that the first of the four prisoners, namely, M.Jagaram (Convict No.4919), shall be released forthwith. The writ petition is, however, dismissed in so far as prisoners 2 to 4 mentioned in the writ petition, are concerned. No costs. 12. The learned Addl. Advocate-General makes an oral request for leave to appeal to the Supreme Court under clauses (a)(b) of Article 133 of the Constitution or, alternately, under Article 134(1)(c). We are, however, unable to certify that this case involves any substantial question of law of general importance which, in our opinion, needs to be decided by the Supreme Court. The oral request for leave is, accordingly, rejected. 13. However, the operation of this judgment is suspended for a period of two months from today, to enable the State, if it is so advised to obtain appropriate orders from the Supreme Court. 14. This Court is allowing this Writ Petition in Part ordered as follows: 1. That Convict No.4919 namely M.Jagaram shall be released forthwith. 2. That this Writ Petition in respect of the petitioners, viz., 1) Bodiya, Convict No.4920, 2) Roopla Convict No. 4924 and Kistu Convict No.4929 be and hereby is dismissed. W.P. allowed in part.