STATE OF J&K Vs. ASHIQ HUSSAIN FACTOO

JUDGEMENT

(1.) Respondent (Writ Petitioner) faced trial for the commission of various offenceswhich include offence punishable under Section 3 of TADA (P) Act but earned acquittalfrom the Designated Court vide judgment dated 14th of July, 2001. On appeal beforethe Hon'ble Apex Court was convicted vide judgment dated 30.1.2003 rendered inCriminal Appeal No.889 of 2001 for commission of offence punishable under Section 3 of TADA (P) Act read with Sections 302 and 120-B RPC and sentenced to lifeimprisonment. After undergoing 2/3rd of the sentence i.e. 14 years and 23 days, as inthe year 2007, claimed consideration for premature release on review by the ReviewBoard in accordance with the provisions of JAMMU & KASHMIR MANUAL FOR THESUPERINTENDENCE AND MANAGEMENT OF JAILS (hereinafter referred to as 'theManual'). With the intervention of the Court his case was placed before the ReviewBoard and the Review Board recommended his premature release. While same waspending consideration before the Government, IG Police (CID)(HQ) seem to haveaddressed a letter dated 11.07.2008 to appellant No.1 intimating therein that theprisoners convicted in terrorist crimes are not eligible for review.

(2.) The respondent (Writ Petitioner) filed a writ petition OWP No.157/2009, whichcame to be disposed of with the direction to the Government to accord consideration tothe premature release of the petitioner. In compliance thereof, Government accordedconsideration, same resulted in the order of rejection bearing Govt. Order No.Home-773(P) of 2009 dated 14.9.2009. The said order was sought to be quashed by mediumof writ petition (OWP) No.997/2009 with further prayer for issuance of command in thename of respondents to release the respondent (Writ Petitioner) from jail in the light ofrecommendations made by the Statutory Review Board.

(3.) The learned Writ Court while interpreting Rule 54.1 of the Manual has concludedthat first part of Rule is controlled by the second part and held that the offenders whoare convicted and sentenced for the commission of offences under Sections 376(except first part), 396, 400, 402, 467, 471, 472, 474(latter part), 489-A, 489-B and489-D RPC are excluded from such review. Therefore, the offenders who aresentenced for commission of other offences including terrorist crimes are not excludedfrom the scope of review. The Writ Court finally allowed the writ petition.