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2010 DIGILAW 362 (JK)

Ashaq Hussain Factoo v. State

2010-06-05

Mansoor Ahmad Mir

body2010
1. Petitioner has questioned the Govt. Order No. Home 773 (P) of 2009 dated 14th of September, 2009 issued by respondent No.1-Annexure-K on the grounds taken in the writ petition. Petitioner has also prayed that respondents be directed to release the petitioner in light of the recommendations made by Statutory Review Board-Annexure-F. 2. Respondents have filed counter and resisted the same. Heard. 3. With the consent of the learned counsel for the parties this case is taken up for final disposal. Admit. It is necessary to give a brief resume of the case: 4. Ashiq Hussain, petitioner came to be arrested in FIR No. PC.9 (S) CRI/92-Annexure-A under Sections 302 read with 120B RPC and 3 TADA (P) Act and challan came to be presented against three persons including petitioner in the court of Presiding Officer, Designated Court under TADA (P) Act, Jammu, came to be acquitted vide judgment and order dated 14th of July, 2001. State questioned the said judgment before the Supreme Court by the medium of Criminal Appeal No. 889 of 2001, came to be allowed and petitioner came to be convicted and sentenced to life imprisonment vide judgment-order dated 30th of January, 2003-Annexure-B. Petitioner is presently lodged in Central Jail, Srinagar and is undergoing the sentence. 5. Petitioner filed writ petition-OWP No. 430/2008 and prayed that respondents be commanded to consider the case of the petitioner for grant of remission in terms of the MANUAL FOR THE SUPERINTENDENCE AND MANAGEMENT OF JAILS, (hereinafter for short as Manual) on the grounds taken in that petition. After examining the case, the interim direction dated 23rd of May, 2008 came to be passed commanding the respondents to consider the case of the petitioner for placing the same before Review Board as warranted and permissible under Manual. It appears that Review Board came to be constituted and case of the petitioner was considered by the Board and it recommended premature release of the petitioner if otherwise eligible under the provisions of J&K Jail Manual-Annexure-F. The recommendations came up for consideration before the respondents and it appears that respondents asked Inspector General of Police CID Hqrs J&K Srinagar for his opinion. IGP accordingly vide letter-communication dated 11th of July, 2008 made the opinion and informed the Govt. IGP accordingly vide letter-communication dated 11th of July, 2008 made the opinion and informed the Govt. that the case of the petitioner cannot be considered because he came to be convicted under Terrorist Activities and his case is excluded by the mandate of Rule 54.1 of the Manual. It appears that petitioner was constrained to file the writ petition No. 430/2008 and 157/2009, came to be allowed vide judgment and order dated 4th of August, 2009. The court held that Govt-respondent is not bound by the opinion of the IGP. The view of the IGP is one of the factors which the Govt. may take into consideration while considering the matter. The court further held that the respondents have not considered the case of the petitioner and had not passed the final order and accordingly directed the respondents to consider the recommendations of the Review Board and take a just and proper decision in the matter in accordance with the rules governing the field. 6. In terms of judgment dated 4th of August, 2009, it appears that respondents have passed the impugned order and rejected the case on the ground that case of the petitioner does not fall within the four corners of Rule 54.1 of the Manual and thus is not entitled for premature release. 7. The moot question for consideration is whether the case of the petitioner falls within the ambit of Rule 54.1 of the Manual or otherwise. 8. Learned counsel for the petitioner argued that Rule 54.1 of the Manual contains two parts and is governed by latter part. 9. Mr. Magray argued that the provisions contained in Chapter LI of Manual are to be kept in mind while interpreting the applicability of Rule 54.1. Further he argued that Rule 54.1 and 54.2 are to be read together. The plain reading of Section 54.1 excludes the petitioner from such review. It is apt to reproduce 54.1 of Manual herein:- "54.1) Prisoners convicted of any of the offences of rape, forgery, dacoity, terrorist crimes, corruption and black marketing, which are also excluded from the scope of Probation under the Probation of Offenders Act, 1966, shall not be eligible for being reviewed by the Review Board. It is apt to reproduce 54.1 of Manual herein:- "54.1) Prisoners convicted of any of the offences of rape, forgery, dacoity, terrorist crimes, corruption and black marketing, which are also excluded from the scope of Probation under the Probation of Offenders Act, 1966, shall not be eligible for being reviewed by the Review Board. Accordingly, offenders sentenced under sections 376 (except first part), 396, 400, 402, 467, 471, 472, 474 (latter part) 489-A, 489-8 and 489-D of the Ranbir Penal Code shall be excluded from such review. 10. It is provided that offenders of rape, forgery, dacoity, terrorist crimes, corruption and black marketing are excluded from the scope of probation under the Probation of Offenders Act (hereinafter for short as Act) and in 2nd part it is provided that offenders sentenced under Section 376 (except first part), 396, 400, 402, 467, 471, 472 and 474 (latter part) 489-A, 489-13 and 489-D of the Ranbir Penal Code shall be excluded from such review. In the first part all kinds of offences; rape, forgery, dacoity, terrorist crimes, corruption and black marketing are excluded from the scope of the Act while in Second part for the purposes of review only those offenders who are sentenced for the commission of offences under section 376 (except first part), 396, 400, 402, 467, 471, 472 and 174 (latter part) 489-A, 489-B and 489-D of the Ranbir Penal Code are excluded from such review. 11. I am of the view that argument of Mr. Qayoom is forcible while-as argument of Mr. Magray is devoid of force for the following reasons:- The offences of rape is punishable under Section 376 RPC, it runs in two parts, only first part is excluded from such review and not the second part. The different kinds of offences of dacoity are punishable under Section 395, 396, 397, 398, 399, 400 RPC while keeping in view the gravity of the offence and other acts committed. If we will go by first part then all the offences which constitute dacoity are excluded from the scope of the Act, but second part specifically provides that offenders sentenced under Section 396, 400, and 402, RPC are to be excluded from such review. Thus the offenders who are sentenced under Section 395, 397, 398, 399 and 401 RPC are not excluded. Thus the offenders who are sentenced under Section 395, 397, 398, 399 and 401 RPC are not excluded. As per the first part, Rule 54.1 Manual the offences of forgery punishable under Section 465, 466, 467, 468, 469, 471, 472, 474 RPC (latter part) are excluded from the scope of the Act. But in view of the latter part the offenders sentenced under Section 467, 471, 472 and 474 RPC are excluded from such review and the offenders sentenced under Section 465, 466, 468 and 496 RPC are not excluded from such review. Thus one comes to inescapable conclusion that 2nd part controls first part of Rule 54.1 of the Manual and only those offenders sentenced under Section 376 (except first part), 396, 400, 402, 467, 471, 472, 474 (latter part) 489-A, 489-B and 489-D of the Ranbir Penal Code are excluded from the scope of review. Thus it can be safely held that prisoners convicted of offences of terrorist crimes are not excluded from the scope of review. Thus consideration has wrongly been denied by the respondents. 12. Considering the case of the prisoner for review is his right but grant of review is not his right. My this view is fortified by a latest Division Bench Judgment of the Madras High Court dated 6th of April, 2010 delivered in case Writ Appeal No. 1207 of 2008 titled S. Nalini Srikaran v. State of Tamil Nadu and others. If is apt to reproduce relevant part of the judgment herein:- "The appellant, a life convict in a crime that was cunning in conception, meticulous in planning and ruthless in execution in taking away the life of the former Prime Minister of India, cannot seek premature release, as of right, though she got a right to seek for consideration of her plea." 13. The Apex Court has laid down the guidelines in the cases titled State of Haryana and others v. Mohinder Singh, reported as AIR 2000 SC 890 ; State of Haryana v. Mahinder Singh and others Reported as AIR 2007 SCW 6988 ; Swamy Shraddananda (a) Murali Manohar Mishra v. Slate of Kornataka reported as AIR 2008 SCW 5110 and Ramraj v. State of Chhattisgarh reported as AIR 2010 SC 420 . 14. 14. Keeping in view the discussion made hereinabove, read with law laid down by the Apex Court, the respondents had to consider the case of the petitioner in terms of the Jail Manual and the law laid down by the Apex Court & Division Bench Judgment of Madras High Court read with the facts and circumstances of the case. 15. Viewed thus, the writ petition is allowed, impugned order is quashed and respondents are directed to consider the case of the petitioner as indicated above and make a decision. The consideration order be passed within three months from the date copy of the order is served upon them. Disposed of.