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IN THE HIGH COURT OF JAMMU & KASHMIR AND

LADAKH AT SRINAGAR

Reserved on: 06.08.2024

Pronounced on: 27.09.2024

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DR. ASHIQ HUSSAIN FACTOO & ANR.

...APPELLANT/PETITIONER(S)

Through: - Mr. Collin Gonsalves, Senior Advocate, with

Ms. Mughda, Advocate

(Through Virtual Mode); and

M/S Ubaid Mir & Kamran Khawaja, Advocates.

Vs.

STATE OF J&K & OTHERS …RESPONDENT(S)

Through:- Mr. Mohsin-ul-Showkat Qadri, Sr. AAG, with

Ms. Maja Majeed and Ms. Nadiya Abdullah, Assisting Counsel.

CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

HON’BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE

JUDGMENT

Per Sanjay Dhar ‘J’

1) By this common judgment, we propose to decide

the afore-titled Letters Patent Appeal filed by Ashiq

Hussain Factoo, and two writ petitions, one filed by

petitioner Ashiq Hussain Factoo and another filed by

Nazir Ahmad Sheikh.

2) The Letters Patent Appeal arises out of judgment

dated 16.11.2012 passed by the learned Single Judge,

whereby the writ petition filed by Ashiq Hussain Factoo

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has been dismissed. Vide Writ petition bearing WP(Crl)

No.02/2024, petitioner Ashiq Hussain Factoo has

challenged Rule 54.1 of the Manual for Superintendence

and Management of Jails in the State of J&K as also

Order No.Home-73 of 2012 dated 23.08.2012 issued by

the State of J&K. Vide order dated 23.08.2012 (supra),

the claim of the petitioner for grant of remission has

been declined. Vide Writ petition bearing WP(Crl)

No.03/2024, petitioner Nazir Ahmad Sheikh has

challenged Rule 20.10 of the Prison Manual of 2022 for

the Superintendence and Management of Prisons in the

Union Territory of Jammu and Kashmir.

3) It is pertinent to mention here that both the writ

petitions i.e. WP(Crl) No.02/2024 and WP(Crl)

No.03/2024 were initially filed before the Supreme

Court of India. However, in terms of order dated

17.01.2024 passed by the Supreme Court, these writ

petitions were remitted to this Court with a direction to

dispose of the same as also the afore-titled LPA within a

period of nine months from the date of the said order. It

is in these circumstances that the aforesaid two writ

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petitions and the LPA are being taken up together for

disposal under law.

(A)Background facts:

4) Appellant Ashiq Hussain Factoo was booked in FIR

No.204/1992 for offences under Section 302 RPC, 3/4

TADA Act and 3/25 Arms Act registered with Police

Station, Shaheed Gunj, Srinagar, and it was alleged that

he along with co-accused was involved in murder of one

Shri H. N. Wanchoo so as to create an imminent sense

of terror in the minority community in Kashmir.

Thereafter he was charged along with eleven more

persons for offences under Section 302, 120-B RPC and

Section 3 of the TADA Act by the Designated Court

(under TADA Act, 1987), Jammu. Out of these twelve

persons, four died and five others absconded, therefore,

the appellant along with two other persons was put on

trial. They were acquitted of the charges by the

Designated Court in terms of judgment dated 14

th July,

2001. The said judgment was assailed by the

investigating agency i.e. CBI before the Supreme Court

by way of Criminal Appeal No.889 of 2001. The Supreme

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Court vide judgment dated 30

th January, 2003, allowed

the appeal and the judgment of the Designated Court,

Jammu, was set aside. The appellant along with other

accused were convicted of offences under Section 3 of

TADA Act as well as Section 302 read 120-B RPC .

Consequently they were sentenced to undergo life

imprisonment. The appellant Ashiq Hussain Factoo is in

custody since 6

th February, 1993.

5) Petitioner Nazir Ahmad Sheikh was booked in FIR

No.105/1990 for offences under Section 302 of RPC,

3(2) of TADA(P) Act. It was alleged that the said

petitioner along with ten other co-accused, was involved

in the murder of a BSF personnel, namely, Shri

Dharamveer Sharma with a view to spread terror in the

Valley amongst the security forces. After the charge

sheet was filed before the Designated Court (under

TADA Act), Jammu, one of the co-accused was

discharged and two more co-accused died. Vide

judgment dated 03.12.2012 passed by the Designated

Court, petitioner Nazir Ahmad Sheikh along with two

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more co-accused were convicted. Petitioner Nazir Ahmad

Sheikh was convicted of offences under Section 302

RPC, 3(2)(i) and 4 of TADA Act and 7/27 Arms Act. Vide

order dated 03.12.2012 passed by the Designated

Court, the aforenamed petitioner has been sentenced to

undergo imprisonment for life and to pay a fine of

Rs.5,000/ in proof of offence under Section 302 RPC,

whereas in proof of offence under Section 3(2)(i) of TADA

Act, he has been sentenced to undergo imprisonment for

life and to pay a fine of Rs.10,000/. In proof of offence

under Section 4 of TADA Act, petitioner Nazir Ahmad

Sheikh has been sentenced to undergo rigorous

imprisonment for five years and to pay a fine of

Rs.5,000/ whereas in proof of offence under Section 25

and 27 of the Arms Act, he has been sentenced to

undergo rigorous imprisonment for five years and to pay

a fine of Rs.5,000/. The appeal against the said

judgment of conviction and order of sentence passed by

the Designated Court, Jammu, is stated to be pending

before the Supreme Court. As per the custody certificate

annexed to the writ petition, the aforenamed petitioner

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has been in custody for the last more than 22 years 02

months and 03 days as on 20.12.2022.

6) We have heard learned counsels appearing for the

parties and perused the record.

(I). LPA No.230/2012

(B)Contentions/grounds raised by the Appellant:

7) By way of the present appeal, appellant Ashiq

Hussain Factoo has challenged judgment dated

16.11.2012 passed by the learned Singe Judge, whereby

his writ petition seeking a mandamus against the

respondents to release him from custody on the ground

that he has completed more than 20 years in jail, has

been dismissed.

8) It seems that initially the appellant had filed a writ

petition bearing OWP No.997/2009 challenging order

dated 14.09.2009 passed by the respondents, whereby

his claim for premature release after having completed

sentence of more than 14 years, was rejected. The said

writ petition was allowed by a Single Judge of this Court

in terms of judgment dated 05.06.2010 and the

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respondents were directed to reconsider the claim of the

appellant. The aforesaid judgment came to be assailed

by the respondents by way of LPA No.120/2010. A

Division Bench of this Court vide judgment dated

08.09.2011, allowed the said appeal of the respondent

State and set aside the judgment dated 05.06.2010 of

the learned Single Judge. While allowing the appeal, the

Division Bench of this Court held that impediment in

the way of the appellant herein is Rule 54.1 of the Jail

Manual which renders him ineligible for grant of

remission.

9) It seems that the appellant, instead of challenging

Rule 54.1 of the Jail Manual, filed another writ petition

bearing OWP No.806/2012 before this Court, wherein

he claimed that because he has been in custody for

more than 20 years, as such, he is entitled to be

released from custody. It was contended by the

appellant that imprisonment for life in terms

explanation to Section 3 of the J&K Prisons Act means

sentence of 20 years, as such, he has completed the

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sentence of life imprisonment and is entitled to be

released from custody.

10) The learned Single Judge vide judgment dated

16.11.2012, after noticing the provisions contained in

Sections 45, 54, 55 and 57 of the RPC and Section 3 of

the Prisons Act and relying upon the judgment of the

Supreme Court in the case of Gopal Vinayak Godse vs.

State of Maharashtra, AIR 1961 SC 601, and its

subsequent judgments, came to the conclusion that the

sentence of life imprisonment means imprisonment for

entire natural life of the person, as such, the appellant

is not entitled to be released from custody simply

because he has completed 20 years of imprisonment.

11) The aforesaid judgment has been put to challenge

by the appellant by way of present appeal on the ground

that in terms of explanation to Section 3 of the Jammu

and Kashmir Prisoners Act, 1977, for the purpose of

execution, sentence of imprisonment for life would mean

imprisonment for 20 years but the Writ Court has not

adverted to this aspect of the matter. It has been further

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contended that even in terms of Para 46.18 of Chapter

XLVI of Jail Manual, which relates to execution of

sentence, the sentence of imprisonment for life has to be

taken as imprisonment for 20 years.

(C) Discussion:

12) So far as the question as to whether imprisonment

for life means imprisonment for the natural life of a

convict or whether it conveys a certain fixed period less

than the natural life of the convict is concerned, the

same is no longer res integra. It has been the consistent

view of the Supreme Court right from the decision in G.

V. Godse’s case (supra) that life imprisonment means

imprisonment for natural life of a convict. The learned

Senior Counsel appearing for the appellant, Shri Colin

Gonzalves, has fairly conceded this position of law. In

any case, it would be apt to refer to some of the

decisions rendered by the Supreme Court on this issue

in order to clear any confusion on the issue.

13) In Gopal Vinayak Godse vs. State of

Maharashtra(supra),the Supreme Court, while

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considering the aforesaid question, answered the same

by holding that a sentence of transportation for life

or imprisonment for life must prima facie be treated as

transportation or imprisonment for the whole of the

remaining period of the convicted person's natural life.

14) The aforesaid position of law has been repeated

and reiterated by the Supreme Court in the case of

Sambha Ji Krishan Ji vs State of Maharashtra ,

(1974)1 SCC 196.

15) In State of Madhya Pradesh vs. Rattan Singh

and others, (1976) 3 SCC 470, the Supreme Court while

dealing with the issue as to whether imprisonment for

life would automatically expire at the end of 20 years,

observed as under:

“(1) that a sentence of imprisonment for life

does not automatically expire at the end of 20

years including the remissions, because the

administrative rules framed under the various

Jail Manuals or under the Prisons Act cannot

supersede the statutory provisions of the Indian

Penal Code. A sentence of imprisonment for life

means a sentence for the entire life of the

prisoner unless the appropriate Government

chooses to exercise its discretion to remit either

the whole or a part of the sentence

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under Section 401 of the Code of Criminal

Procedure;”

16) In Maru Ram vs. Union of India and another ,

(1981)1 SCC 107, the Supreme Court, while endorsing

the view taken in Godse’s case (supra), held as under:

“A possible confusion creeps into this

discussion by equating life imprisonment with

20 years imprisonment. Reliance is placed for

this purpose on Section 55 IPC and on

definitions in various Remission Schemes. All

that we need say, as clearly pointed out in

Godse, is that these equivalents are meant for

the limited objective of computation to help the

State exercise its wide powers of total

remissions. Even if the remissions earned have

totalled upto 20 years, still the State

Government may or may not release the

prisoner and until such a release order

remitting the remaining part of the life

sentence is passed, the prisoner cannot claim

his liberty. The reason is that life sentence is

nothing less than life-long imprisonment.

Moreover, the penalty then and now is the

same-life term. And remission vests no right to

release when the sentence is life imprisonment.

No greater punishment is inflicted by S 433A

than the law annexed originally to the crime.

Nor is any vested right to remission cancelled

by compulsory 14 years jail life once we realise

the truism that a life sentence is a sentence for

a whole life.”

17) Accordingly, it was held that imprisonment for life

lasts until the last breath of the convict and whatever

the length of remissions earned, the prisoner can claim

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release only if the remaining sentence is remitted by the

Government.

18) In Subash Chander vs. Krishan Lal & others ,

(2001) 4 SCC 458, the Supreme Court interpreted the

provisions of Section 57 of the IPC and held that the

same provides for calculation of fractions of terms of

imprisonment and it does not mean that imprisonment

for life is to be reckoned as equivalent to imprisonment

for 20 years. It was held that a sentence of

imprisonment for life must mean imprisonment for

whole of the remaining period of convicted person’s

natural life.

19) All the aforesaid decisions of the Supreme Court

were again considered by a Constitution Bench of seven

Judges of the Supreme Court in the case of Union of

India vs. V. Sriharan @ Murugan & Ors. (2016) 7 SCC

1, wherein the aforesaid issue was answered by holding

that imprisonment for life in terms of Section 53 read

with Section 45 of the IPC only means imprisonment for

rest of the life of the prisoner, subject to his right to

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claim remission etc. as provided under Articles 72 and

161 of the Constitution to be exercisable by President

and the Governor of the State and also as provided

under Section 432 of the Code of Criminal Procedure.

20) From the foregoing analysis of law on the subject,

there is no manner of doubt in holding that

imprisonment for life would, in all cases, mean

imprisonment for natural life of a convict and unless a

part of the sentence is remitted by the appropriate

authority in exercise of its constitutional powers under

Article 72/161 of the Constitution of India or under

Section 432 of the Code of Criminal Procedure, the

convict has to remain in prison for rest of his natural

life. He cannot claim his release from prison after

undergoing 20 years imprisonment as a matter of right.

It is only if the appropriate authority exercises its

constitutional or statutory powers of remission in favour

of the said life convict that he can be released.

21) So far as the contention of the appellant that in

view of the provisions contained in explanation to

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Section 3 of the J&K Prisoners Act and Para (46.18) of

the Jail Manual, the life imprisonment has to be taken

as imprisonment for 20 years, is concerned, the same is

without any merit because, as per explanation to

Section 3 of the J&K Prisoners Act, the imprisonment

for life has to be taken as sentence of imprisonment for

20 years only for the purposes of execution and

similarly, as per (Para 46.18) of the Jail Manual,

imprisonment for life has to be taken as sentence of

imprisonment for 20 years only for administrative

purposes. The learned Single Judge has dealt with this

argument of the appellant in para (17) of the impugned

judgment, wherein it has been clearly stated that the

provisions contained in Jail Manual, Prisons Act and

Prisoners Act only lays down the provisions as to how to

regulate and manage the prisoners in the prisons. We

are in complete agreement with the view taken by the

learned Single Judge on this aspect of the matter. These

contentions have been dealt with and deliberated upon

by the Supreme Court in the case of G. V. Godse’s case

(supra) and the relevant observations of the Supreme

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Court have been noted by the learned Single Judge in

para (8) of the impugned judgment. Even in Rattan

Singh’s case (supra), it has been clearly held that

administrative rules framed under various Jail Manuals

or under the Prisons Act cannot supersede the statutory

provisions of Indian Penal Code. Therefore, the

contention of the appellant in this regard is without any

substance.

22) In view of what has been discussed hereinabove

and in view of the settled legal position that

imprisonment for life means imprisonment for the

natural life of a convict, we do not find any ground to

interfere with the impugned judgment of the learned

Single Judge. The appeal lacks merit and deserves to be

dismissed.

(II) WP(Crl) No.02/2024

WP(Crl) No.03/2023

(D) Background facts:

23) In these two writ petitions the petitioners have

challenged the vires of Rule54.1 of the Manual for

Superintendence and Management of Jails in the State

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of J&K, 2000, Order No.Home-73 dated 23.08.2012

issued by the State of J&K and Rule 20.10 of the Prison

Manual of 2022 for Superintendence and Management

of Prisons in the Union Territory of Jammu and

Kashmir.

24) Rule 54.1 of the Jail Manual reads as under:

“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-B and 489-0 of

the Ranbir Penal Code shall be excluded from

such review.”

25) It is to be noted that Manual for Superintendence

and Management of Jails has been framed by the

erstwhile Government of Jammu and Kashmir in

exercise of its powers under Sections 59 and 60 of the

Prison Act, Svt. 1977and Section 51of the Prisoners Act,

Svt.1977, for the purposes of superintendence and

management of jails in the erstwhile State of Jammu

and Kashmir.

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26) So far as Rule 20.10 of the Prison Manual, 2022,is

concerned, the same reads as under:

“Prisoners convicted of the following offences

shall not come under purview of Apex

Committee:

vi) Terrorist crimes (undergoing life

imprisonment)

vii) Smuggling (undergoing life

imprisonment)

viii) NDPS Act

ix) Prevention of Corruption (undergoing

life imprisonment) Act

x) Offences against State (undergoing life

imprisonment)"

27) It is pertinent to mention here that with the coming

into effect of the Jammu and Kashmir Reorganization

Act, 2019, both the J&K Prisoners Act and J&K Prisons

Act stand repealed and consequently Manual for

Superintendence and Management of Jails framed

under the aforesaid enactments also stands repealed

and the Central Prisons Act has been made applicable to

the Union Territory of Jammu and Kashmir. In exercise

of the rule making powers under the aforesaid Act, the

Prisons Manual, 2022, has been framed by the Union

Territory of Jammu and Kashmir.

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28) From a perusal of both Rule 54.1 of the J&K Jail

Manual and Rule 20.10 of the J&K Prisons Manual,

2022, what comes to the fore is that both these Rules

are statutory in nature and both Rules exclude certain

categories of offences including the offences relating to

terrorist crimes from the purview of remission. It is an

admitted case of the parties that both the petitioners,

namely, Ashiq Hussain Factoo and Nazir Ahmad Sheikh,

have been convicted and sentenced for having

committed, inter alia, offences under TADA Act. Thus,

the crimes committed by them would necessarily fall

under the category of ‘terrorist crimes’ as indicated in

the impugned Rules, unless the petitioners are able to

persuade us to hold that the charges of which they have

been convicted do not fall within the aforesaid category

of crime.

29) First of all, we have to determine the question as to

which of the two Rules i.e. Rule 54.1 of the J&K Jail

Manual or Rule 20.10 of the Prisons Manual, 2022,

would apply to the cases of the petitioners. The law in

this regard is no longer res integra. The Supreme Court

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in the case of State of Haryana vs. Raj Kumar, (2021)

9 SCC 292, has held that when the policy on the date of

conviction and on the date of consideration for

premature release are different, the policy prevailing on

the date of conviction would be applicable. However, in

State of Haryana vs. Jagdish, (2010) 4 SCC 216, it has

been held that if a more liberal policy exists on the date

of consideration, the benefit of that policy should be

provided. In the instant case, both the policies that were

in vogue at the time of conviction of the petitioners and

the policy which is in vogue at present exclude the

“terrorist crimes” from the purview of remission. So, we

will have to determine the constitutional validity of both

these policies in the present case.

(E) Question of Law:

30) The question of law that we have been called upon

to decide is ‘as to whether exclusion of certain categories

of offences from the scope of grant of remission by way

of rules and guidelines is violative of the fundamental

rights guaranteed under Articles 14 and 21 of the

Constitution of India’?

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(F) Contentions:

31) Learned Senior Counsel appearing for the

petitioners has contended that both Rule 54.1 of J&K

Jail Manual and Rule 20.10 of the J&K Prison Manual,

2022, are arbitrary and inconsistent with Articles 14

and 21 of the Constitution as the same prohibit the

prisoners convicted for terrorist crimes from being

considered by the Review Board. It has been contended

that right to be considered for remission is an

inalienable right of a convict guaranteed under Articles

20 and 21 of the Constitution and a policy, which takes

away such right, has to be held as arbitrary and

unconstitutional. It has been further contended that the

Supreme Court has time and again held that

typecasting a particular kind of offences beyond the

purview of remission would amount to crushing the life

out of such individual notwithstanding his good conduct

in the prison. According to the learned Senior Counsel,

any rule or guideline which takes a particular type of

crime out of the purview of the review would be against

the reformative policy of sentencing, which forms the

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bedrock of sentencing policy in our country. Thus,

according to the learned Senior Counsel, such a policy

or statute would be violative of Articles 14 and 21 of the

Constitution.

32) In order to buttress his arguments, the learned

Senior Counsel has relied upon the judgments of the

Supreme Court in the cases of:

(I) Joseph vs. State of Kerala, 2023 SCC

Online SC 1211,

(II) Rajo @ Rajwa @ Rajendra Mandal vs.

State of Bihar(Writ Petition (Criminal)

No.252 of 2023 decided on August 25,

2023;

(III) A. G. Perarivalan vs. State, (2023) 8

SCC 257,

(IV) Asfaq vs. State of Rajasthan & others,

(2017) 15 SCC 55.

33) Per contra, Mr. Mohsin Qadri, learned Senior AAG,

has argued that the State is well within its powers to

put certain types of crimes beyond the purview of

remission in exercise of its rule making powers. It has

been submitted that certain types of heinous crimes,

having regard to the impact of such crimes on the

society, form a class in themselves and, as such, putting

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such types of crimes beyond the purview of remission do

not fall foul of Article 14 of the Constitution of India. It

has been contended that the Supreme Court has time

and again upheld the constitutional validity of actions of

the State and of the courts to put certain types of crimes

beyond the purview of remission. In this regard, the

learned Senior AAG has placed reliance upon the

judgment of the Supreme Court in the case of Union of

India vs. V. Sriharan (supra).

(G) Discussion:

34) Before determining merits of the rival contentions,

it would be apt to notice as to which type of crimes have

been placed beyond the purview of remission in terms of

the impugned rules. As per Rule 54.1 of the J&K Jail

Manual, the offences of rape, forgery, dacoity, terrorist

crimes, corruption and black marketing have been put

beyond the purview of review whereas, as per Rule

20.10 of J&K Manual, 2022, the offences like terrorist

crimes (undergoing life imprisonment), smuggling

(undergoing life imprisonment), NDPS Act, Prevention of

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Corruption Act (undergoing life imprisonment) and

offences against State (undergoing life imprisonment),

have been put beyond the purview of review. The

question arises as to whether the types of offences

mentioned in the aforesaid Rules, are distinct from

other categories of offences so as to justify the action of

the respondents to put these types of offences beyond

the purview of remission.

35) In the present case, we are concerned with

‘terrorist crimes’, so we have to ascertain whether this

type of crime is a class apart from other crimes so as to

justify a different treatment to convicts of such crime.

In this regard it has to be noted that right from the

inception of last decade of twentieth century, this part of

the country has been facing onslaught of terrorist

activities. More than 40,000 lives have been consumed

during all these years in the State of Jammu and

Kashmir, which includes deaths of civilians and security

personnel. Due to the terrorist activities in this part of

the country, lakhs of people lost their homes and

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hearths and there has been large scale destruction of

public and private properties on account of terrorist

activities. Thus, the terrorist crimes in our country,

more particularly in the erstwhile State of J&K, have

adversely impacted the lives of the whole population. In

fact, terrorism has been a scourge and menace for the

people of this country. Therefore, learned Senior AAG is

right in his submission that terrorist crimes or for that

matter other crimes mentioned in the impugned Rules

are a class apart and the classification of crimes made

in the impugned Rules is reasonable and not arbitrary.

It has a rational basis/reasonable nexus to the object of

putting the persons convicted of terrorist crimes out of

circulation. Therefore, it cannot be stated that the

respondent State in classifying terrorist crimes as a

category for putting the same beyond the purview of

remission has violated provisions of Article 14 of the

Constitution.

36) Learned Senior Counsel appearing for the

petitioners has contended that Model Prison Manual,

2016 framed by Government of Delhi does not put any

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restriction on grant of remission to terror convicts,

therefore, there is no reason for the Union Territory of

J&K to frame the impugned Rules.

37) We are not impressed by the aforesaid argument of

the learned Senior Counsel. The conditions in the Union

Territory of J&K are entirely different from the

conditions prevailing in other parts of the Country. As

already stated, this part of the Country has been reeling

under militancy for the last more than three decades, as

such, the State is justified in dealing with the crimes

relating to terrorism in a manner that is different from

dealing with similar crimes in Delhi or other part of the

Country which are relatively free from such type of

crimes.

38) Much emphasis has been laid by learned Senior

Counsel appearing for the petitioners on the argument

that if the persons convicted for life imprisonment in

terrorist crimes are not considered for grant of

remission, it would amount to crushing life out of such

individuals altogether that amount to violation of their

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right to life guaranteed under Article 21 of the

Constitution. It has been contended that in such a

situation the persons like the petitioners herein despite

having a good track record as prisoners would not

qualify for grant of remission and, therefore, the

reformative policy of sentencing, which is bedrock of

sentencing policy of our country, would take a back

seat.

39) In support of his aforesaid argument, learned

Senior Counsel has relied upon the ratio laid down by

the Supreme Court in the case of Joseph vs. State of

Kerala (supra).While analysing Government Order dated

04.06.2022 issued by the Government of Kerala, which

provided for exclusion of certain categories of prisoners

from eligibility for premature release, the supreme Court

in the aforenoted case observed that denial to consider

the real impact of prison good behaviour and other

relevant factors results in violation of Article 14 of the

Constitution. It has also been observed in the said

judgment that excluding the relief of premature release

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to prisoners who have served extremely long periods of

incarceration not only crushes their spirit and instils

despair but signifies society’s resolve to be harsh and

unforgiving and the idea of rewarding a prisoner for

good conduct is entirely negated.

40) Reliance has also been placed upon the

observations made by the Supreme Court in the case of

Rajo @Rajwa @Rajendra Mandal vs. State of Bihar

(supra), wherein the Supreme Court has noted the

caution contained in minority view in V. Sriharan’s case

(supra). In the said case it has been observed that any

order putting the punishment beyond remission would

prohibit exercise of statutory power designed to achieve

purpose under Section 432/433 of the Code of Criminal

Procedure. It was also observed that non-consideration

of remission of a prisoner will not be conducive to

reformation of a person and it would push him in a dark

hole without there being semblance of light at the end of

the tunnel.

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41) The aforesaid argument of learned Senior Counsel

appears to be attractive at first blush but when analysed

on the touchstone of the relevant provisions of the

Constitution, the same does not hold much water.

Article 21 of the Constitution safeguards the life and

liberty of a person but at the same time it does leave

scope for curtailing the life and liberty of a person in

accordance with law. Once a person has been convicted

of a terrorist crime after following due procedure of law

by giving him opportunity of defending himself before

the trial court and granting him right to appeal, it

cannot be stated that by putting him behind the bars in

accordance with the judgment of the criminal court, his

right under Article 21 of the Constitution gets infringed.

In fact, once it is established that a person has deprived

another person of his life and liberty, such a person has

no right to ask the court to uphold his liberty. The

concept of reformative sentencing policy cannot be

stretched to tyrannical limits so as to extend an undue

favour to a person who has been convicted of a heinous

offence after following due procedure of law.

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42) In the above context, it would be apt to refer to the

following observations of the Supreme Court in Maru

Ram’s case (supra):

“The dominant purpose and the

avowed object of the legislature in

introducing s. 433A in the Code of

Criminal Procedure unmistakably

seems to be to secure a deterrent

punishment for heinous offences

committed in a dastardly, brutal or

cruel fashion or offences committed

against the defence or security of

the country. It is true that there

appears to be a modern trend of

giving punishment a colour of

reformation so that stress may be

laid on the reformation of the

criminal rather than his confinement

in jail which is an ideal objective. At

the same time, it cannot be gainsaid

that such an objective cannot be

achieved without mustering the

necessary facilities, the requisite

education and the appropriate

climate which must be created to

foster a sense of repentance and

penitence in a criminal so that he

may undergo such a mental or

psychological revolution that he

realises the consequences of playing

with human lives. In the world of

today and particularly in our

country, this ideal is yet to be

achieved and, in fact, with all our

efforts it will take us a long time to

reach this sacred goal.

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xxx xxx xxx xxx

The question, therefore, is-should

the country take the risk of innocent

lives being lost at the hands of

criminals committing heinous crimes

in the holy hope or wishful thinking

that one day or the other, a criminal,

however dangerous or callous he

may be, will reform himself. Valmikis

are not born everyday and to expect

that our present generation, with

the prevailing social and economic

environment, would produce

Valmikis day after day is to hope for

the impossible.

xxx xxx xxx xxx

Taking into account the modern

trends in penology there are very

rare cases where the courts impose

a sentence of death and even if in

some cases where such sentences

are given, by the time the case

reaches this Court, a bare minimum

of the cases are left where death

sentences are upheld. Such cases are

only those in which imposition of a

death sentence becomes an

imperative necessity having regard

to the nature and character of the

offences, the antecedents of the

offender and other factors referred

to in the Constitution Bench

judgment of this Court in Bachan

Singh v. State of Punjab. In these

circumstances, I am of the opinion

that the Parliament in its wisdom

chose to act in order to prevent

criminals committing heinous crimes

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from being released through easy

remissions or substituted form of

punishments without undergoing at

least a minimum period of

imprisonment of fourteen years

which may in fact act as a sufficient

deterrent which may prevent

criminals from committing offences.

In most parts of our country,

particularly in the north, cases are

not uncommon where even a person

sentenced to imprisonment for life

and having come back after earning

a number of remissions has

committed repeated offences. The

mere fact that a long term sentence

or for that matter a sentence of

death has not produced useful

results cannot support the argument

either for abolition of death

sentence or for reducing the

sentence of life imprisonment from

14 years to something less. The

question is not what has happened

because of the provisions of the

penal Code but what would have

happened if deterrent punishments

were not given. In the present

distressed and disturbed

atmosphere we feel that if deterrent

punishment is not resorted to, there

will be complete chaos in the entire

country and criminals be let loose

endangering the lives of thousands

of innocent people of our country. In

spite of all the resources at its

hands, it will be difficult for the

State to protect or guarantee the life

and liberty of all the citizens, if

criminals are let loose and deterrent

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punishment is either abolished or

mitigated. Secondly, while

reformation of the criminal is only

one side of the picture,

rehabilitation of the victims and

granting relief from the tortures and

sufferings which are caused to them

as a result of the offences

committed by the criminals is a

factor which seems to have been

completely overlooked while

defending the cause of the criminals

for abolishing deterrent sentences.

Where one person commits three

murders it is illogical to plead for the

criminal and to argue that his life

should be spared, without at all

considering what has happened to

the victims and their family. A

person who has deprived another

person completely of his liberty for

ever and has endangered the liberty

of his family has no right to ask the

court to uphold his liberty. Liberty is

not a one-sided concept, nor

does Art. 21 of the Constitution

contemplate such a concept. If a

person commits a criminal offence

and punishment has been given to

him by a procedure established by

law which is free and fair and where

the accused has been fully heard, no

question of violation of Art. 21 arises

when the question of punishment is

being considered. Even so, the

provisions of the Code of Criminal

Procedure of 1973 do provide an

opportunity to the offender, after his

guilt is proved, to show

circumstances under which an

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appropriate sentence could be

imposed on him. These guarantees

sufficiently comply with the

provisions of Article 21. Thus, it

seems to me that while considering

the problem of penology we should

not overlook the plight of

victimology and the sufferings of the

people who die, suffer or are

maimed at the hands of criminals.”

43) The Supreme Court has, in the case of V. Sriharan

(supra), after noticing the aforesaid observations in

Maru Ram’s case (supra), held as under:

“73. The above chiseled words of the

learned Judge throw much light on the

sentencing aspect of different

criminals depending upon the nature

of crimes committed by them. Having

noted the above observations of the

learned Judge which came to be made

about three and a half decades ago,

we find that what was anticipated by

the learned Judge has now come true

and today we find that criminals are

let loose endangering the lives of

several thousand innocent people in

our country. Such hardened criminals

are in the good books of several

powerful men of ill-gotten wealth and

power mongers for whom they act as

paid assassins and Goondas.

Lawlessness is the order of the day.

Having got the experience of dealing

with cases involving major crimes, we

can also authoritatively say that in

most of the cases, even the kith and

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kin, close relatives, friends, neighbours

and passers-by who happen to witness

the occurrence are threatened and

though they initially give statements to

the police, invariably turn hostile,

apparently because of the threat

meted out to them by the hardened

and professional criminals and

gangsters. As was anticipated by the

learned Judge, it is the hard reality

that the State machinery is not able to

protect or guarantee the life and

liberty of common man. In this

scenario, if any further lenience is

shown in the matter of imposition of

sentence, at least in respect of capital

punishment or life imprisonment, it

can only be said that that will only lead

to further chaos and there will be no

Rule of Law, but only anarchy will rule

the country enabling the criminals and

their gangs to dictate terms.

Therefore, any sympathy shown will

only amount to a misplaced one which

the courts cannot afford to take.

Applying these well thought out

principles, it can be said that the

conclusions drawn by this Court in

Swamy Shraddananda (supra) is well

founded and can be applied without

anything more, at least until as

lamented by Justice Fazal Ali the

necessary facilities, the requisite

education and the appropriate climate

created to foster a sense of repentance

and penitence in a criminal is inducted

so that he may undergo such a mental

or psychological revolution that he

realizes the consequence of playing

with human lives. It is also appropriate

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where His Lordship observed that in

the world of today and particularly in

our country, this ideal is yet to be

achieved and that it will take a long

time to reach that goal.

74. Therefore, in the present juncture,

when we take judicial notice of the

crime rate in our country, we find that

criminals of all types of crimes are on

the increase. Be it white collar crimes,

vindictive crimes, crimes against

children and women, hapless widow,

old aged parents, sexual offences,

retaliation murder, planned and

calculated murder, through paid

assassins, gangsters operating in the

developed cities indulging in killing for

a price, kidnapping and killing for

ransom, killing by terrorists and

militants, organized crime syndicates,

etc., are the order of the day. While on

the one side peace loving citizens who

are in the majority are solely

concerned with their peaceful

existence by following the Rule of Law

and aspire to thrive in the society

anticipating every protection and

support from the governance of the

State and its administration, it is

common knowledge, as days pass on it

is a big question mark whether one will

be able to lead a normal peaceful life

without being hindered at the hands of

such unlawful elements, who enjoy in

many cases the support of very many

highly placed persons. In this context,

it will be relevant to note the

PRECEPTS OF LAW which are: to live

honourably, to injure no other man

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and to render everyone his due. There

are murders and other serious offences

orchestrated for political rivalry,

business rivalry, family rivalry, etc.,

which in the recent times have

increased manifold and in this process,

the casualty are the common men

whose day to day functioning is greatly

prejudiced and people in the helm of

affairs have no concern for them. Even

those who propagate for lessening the

gravity of imposition of severe

punishment are unmindful of such

consequences and are only keen to

indulge in propagation of rescuing the

convicts from being meted out with

appropriate punishments. We are at a

loss to understand as to for what

reason or purpose such propagation is

carried on and what benefit the society

at large is going to derive.

44) In the above context, it would also be apt to refer to

the following observations of the Supreme Court in V.

Sriharan’s case (supra:

“88. As far as the argument based on

ray of hope is concerned, it must be

stated that however much forceful, the

contention may be, as was argued by

Mr. Dwivedi, the learned Senior Counsel

appearing for the State, it must be

stated that such ray of hope was much

more for the victims who were done to

death and whose dependents were to

suffer the aftermath with no solace left.

Therefore, when the dreams of such

victims in whatever manner and extent

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it was planned, with reference to

oneself, his or her dependents and

everyone surrounding him was

demolished in an unmindful and in

some cases in a diabolic manner in total

violation of the Rule of Law which is

prevailing in an organized society, they

cannot be heard to say only their rays

of hope should prevail and kept intact.

For instance, in the case relating to the

murder of the former Prime Minister, in

whom the people of this country

reposed great faith and confidence

when he was entrusted with such great

responsible office in the fond hope that

he will do his best to develop this

country in all trusts, all the hope of the

entire people of this country was

shattered by a planned murder which

has been mentioned in detail in the

judgment of this Court which we have

extracted in paragraph No.147.

Therefore, we find no scope to apply

the concept of ray of hope to come for

the rescue of such hardened, heartless

offenders, which if considered in their

favour will only result in misplaced

sympathy and again will be not in the

interest of the society. Therefore, we

reject the said argument outright.”

45) From the foregoing analysis of the legal position on

the subject, it is clear that in the matter of heinous

crimes like terrorist crimes, which has become not less

than a menace for our country, the reformative theory of

punishment has to take a back seat, at least till such

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time the social environment in our country improves

and we have the adequate facilities of reformation of the

prisoners in place.

46) We are conscious of the fact that the observations

quoted hereinbefore in V. Sriharan’s case have been

made by the Supreme Court in the context of powers of

a Court to put a certain category of offences beyond the

purview of remission but the logic and reasoning behind

these observations can be made applicable while testing

the validity of a similar Rule framed by the State. In

fact, a three Judge Bench of the Supreme Court in the

case of Dadu @Tulsi Dass vs. State of Maharashtra,

(2000) 8 SCC 437, while considering the constitutional

validity of Section 32 of the NDPS Act, which provides

that no sentence awarded under the said Act shall be

suspended, remitted or commuted, struck down the

said provision to the extent it takes away the right of the

Court to suspend the sentence of a convict under the

Act but at the same time the Court upheld the vires of

the said provision in so far it takes away the power of

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the Executive to suspend, remit or commute the

sentence.

47) Para 15 of the aforesaid judgment is relevant to the

context and the same is reproduced as under:

“15………….The distinction of the convicts

under the Act and under other statutes,

insofar as it relates to the exercise of

executive powers under Sections 432 and 433

of the Code is concerned, cannot be termed

to be either arbitrary or discriminatory being

violative of Article 14 of the Constitution.

Such deprivation of the executive can also

not be stretched to hold that the right to life

of a person has been taken away except,

according to the procedure established by

law. It is not contended on behalf of the

petitioners that the procedure prescribed

under the Act for holding the trial is not

reasonable, fair and just. The offending

section, insofar as it relates to the executive

in the matter of suspension, remission and

commutation of sentence, after conviction,

does not, in any way, encroach upon the

personal liberty of the convict tried fairly and

sentenced under the Act. The procedure

prescribed for holding the trial under the Act

cannot be termed to be arbitrary, whimsical

or fanciful. There is, therefore, no vice of

unconstitutionality in the section insofar as it

takes away the powers of the executive

conferred upon it under Sections 432 and 433

of the Code, to suspend, remit or commute

the sentence of a convict under the Act.”

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48) From the analysis of the afore-quoted observations

of the Supreme Court, it is clear that that the State is

empowered to classify certain types of crimes and put

them beyond the purview of executive powers of

remission and the same cannot be termed either

arbitrary or discriminatory. The three Judge Bench of

the Supreme Court in the aforesaid judgment has

clearly held that such deprivation of the executive

cannot be stretched to hold that right to life of a person

has been taken away except in accordance with the

procedure established by law. This ratio of larger Bench

of the Supreme Court has not been taken note of by it in

its later judgments delivered in the cases of Rajo

@Rajwa @Rajendra Mandal (supra) and Joseph vs.

State of Kerala(supra), which have been delivered by

smaller Benches of two Judges.

49) Even otherwise, in the case of Joseph Vs. State of

Kerala (supra), the provisions contained in Government

Order dated 04.06.2022 issued by the State of Kerala

were not the subject matter of challenge before the

Supreme Court and the Court, it appears, has tested the

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validity of the said order without any party challenging

the said order. This is clear from para (27) of the

judgment itself. In addition to this, in Joseph’s case

(supra), the order issued by the State of Kerala was an

executive order having no statutory flavour whereas, in

the present case, the impugned Rules are statutory in

nature as the same ha ve been framed by the

Government in exercise of its powers under repealed

Prisons Act/Prisoners Act and Central Prisons Act.

50) So far as the Rajo @Rajwa @Rajendra Mandal ’s

case (supra) is concerned, the same is also a judgment

by a two Judge Bench and in that case validity of the

policy relating to remission was not under challenge nor

was it the matter of discussion before the Supreme

Court.

51) In A. G. Perarivalan’s case (supra), that has been

relied upon by the petitioners the conviction of the

appellant therein to the extent of offences under the

TADA Act had been set aside. It was in these

circumstances that the Supreme Court, exercising its

special powers under Article 142 of the Constitution,

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directed that the appellant therein is deemed to have

served the sentence and, accordingly, he was set at

liberty. In the instant case, both the petitioners have

been convicted of the offences under TADA Act, as such,

the facts of the instant case are clearly distinguishable.

Thus, the ratio laid down in A. G. Perarivalan’s case

(supra) cannot be made applicable to the instant case.

52) In Asfaq vs. state of Rajasthan (supra), the

question that fell for determination before the Supreme

Court was as to whether the person convicted of

offences under TADA Act and who has been awarded life

imprisonment can be considered for grant of parole. The

High Court of Rajasthan had declined the relief to the

convict on the ground that he had committed a heinous

crime, as such, was not entitled to parole. The Supreme

Court in the circumstances of the said case held that

merely because a person has been convicted of a serious

crime does not mean that he is not eligible for grant of

parole. It was held that whenever a person has suffered

incarceration for long time, he can be granted temporary

parole irrespective of the nature of offence for which he

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has been convicted. In the said case, neither any rule

nor any policy of the nature, which is impugned herein,

was subject matter of consideration before the Supreme

Court and it was not a case relating to grant of

remission. Therefore, the ratio laid down by the

Supreme Court in the said case would not be applicable

to the present case.

53) From the foregoing discussion, we are clearly of the

view that the ratio laid down by the Supreme Court in

the judgments relied upon and referred to by learned

Senior Counsel appearing for the petitioners is not

applicable to the present case as the said cases are

distinguishable on facts. Even otherwise, in view of the

ratio laid down by larger bench of the Supreme Court in

Dadu @Tulsi Dass (supra) and Constitution Bench of

the Supreme Court in V. Sriharan’s case (supra), it is

manifestly clear that it is well within the jurisdiction of

the executive to frame a statutory policy to exclude

certain types of crimes from the purview of remission,

provided it is based upon intelligible differentia having a

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reasonable nexus with the object sought to be achieved.

In the instant case, as has been already discussed, we

find that the respondent State, by putting terrorist

crimes outside the purview of remission, having regard

to the impact of such types of crimes on the society in

this part of the country, has sought to achieve the

objective of instilling a degree of fear and deterrence

amongst the potential terrorists. By doing so, the

respondent State has not violated any provision of the

Constitution, much less the provisions contained in

Articles 14 and 21 of the Constitution. Therefore, we

uphold the validity of the impugned Rules.

54) As an alternative argument, learned Senior

Counsel appearing for the petitioners, has contended

that even if the vires of the impugned Rules is upheld,

still then it cannot be stated that the petitioners in the

instant case have committed a terrorist crime. It has

been contended that killing of a single person would not

amount to a terrorist crime. The learned Senior Counsel

has submitted that petitioner Ashiq Hussain Factoo has

been convicted for the offence of committing the murder

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of Shri H. N. Wanchoo whereas petitioner Nazir Ahmad

Sheikh has been convicted of having committed murder

of a single person, namely, Dharamvir Sharma.

According to the learned Senior Counsel, murder of a

single person can, by no stretch of imagination, be

termed as a ‘terrorist crime’. In this regard, learned

Senior Counsel has relied upon the judgment of the

Supreme Court in the case of State vs. Nalini and

others, (1999) 5 SCC 253. It has been submitted that

the subject matter of the said case was the murder of

former Prime Minister of India, Shri Rajiv Gandhi, which

had sent shockwaves throughout the country, still then

the Supreme Court, after examining the whole facts and

circumstances of the case, came to the conclusion that

it was neither a terrorist act nor a disruptive activity

within the meaning of Sections 3 and 4 of TADA Act.

55) We are afraid the argument of learned Senior

Counsel cannot be accepted for the reason that

petitioner Ashiq Hussain Factoo has been convicted by

the Supreme Court for offences under Section 3 of the

TADA Act. Similarly, petitioner Nazir Ahmad Sheikh,

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has also been convicted of Section 3 of the TADA Act.

This Court in the present proceedings cannot go into the

validity of the conviction of the petitioners Section 3 of

the TADA Act. Section 3 of the TADA Act prescribes

punishment for committing a terrorist act or any

preparatory to any terrorist act, which means that both

the petitioners, once having been convicted of offence

under Section 3 of the TADA Act, are deemed to have

committed a terrorist act. In Nalini’s case (supra), the

Supreme Court acquitted the accused therein of the

offences under Section 3 and 4 of the TADA Act after

appreciating the evidence on record. In the instant case,

since we are not sitting in appeal over the conviction of

the petitioners under the provisions of TADA Act, as

such, we cannot test the legality of the conviction of the

petitioners for charges under Section 3 of the TADA Act

in these proceedings. Therefore, we have to proceed on

the basis that the petitioners have committed terrorist

act which would definitely fall within the meaning of

‘terrorist crime’ as contained in the impugned Rules.

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Thus, the petitioners are not eligible for grant of

remission in the face of impugned Rules.

56) There is, however, yet another aspect of the matter

which is required to be taken note of. The Constitution

of India under Article 72 confers power upon the

President to grant pardons and to suspend, remit or

commute sentences in certain cases. Similarly, Article

161 of the Constitution vests power with the Governor

to grant pardon and to suspend, remit or commute

sentences in certain cases.

57) In Maru Ram’s case (supra), it has been held that

Articles 72 and 161 of the Constitution will always

remain untouched. It has been held that though

statutory power of remission and the constitutional

power under Articles 72 and 161 looks similar, yet they

are not the same. In the said case, it has been held that

Sections 432 and 433 of Cr.P.C are not a manifestation

of Articles 72 and 161 of the Constitution but a separate

though similar power and Section 433-A, by nullifying

wholly or partially, these prior provisions do not violate

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or detract from the full operation of the constitutional

power to pardon, commute and the like. In V.

Sriharan’s case (supra), the Supreme Court has held

that the highest executive power prescribed under the

Constitution under Articles 72 and 161 shall always

remain untouched and can be exercised without any

restriction.

58) From the foregoing analysis of law on the subject,

it is clear that even though there is statutory restriction

upon the respondents to consider the case of the

petitioners for grant of remission in the face of

impugned rules, yet it is always open to the

constitutional authorities to exercise their higher powers

under Articles 72 and 161 of the Constitution which

shall remain unfettered by the restrictions imposed in

terms of the impugned rules.

(H) Conclusion:

59) For what has been discussed hereinbefore, it is

held as under:

(I) The Letters Patent Appeal filed by Ashiq

Hussain Factoo against the impugned

LPA No.230/2012

c/w

WP(Crl) No.02/2024

WP(Crl) No.03/2024 Page 49 of 49

judgment dated16.11.2012is without any

merit and the same is dismissed

accordingly.

(II) The constitutional validity of impugned

Rule 54.1 of the J&K Jail Manual (now

repealed) and Rule 20.10 of the J&K Prison

Manual, 2022, is upheld and the writ

petitions are dismissed.

(III) It shall be open to the competent

constitutional authorities to consider the

cases of the petitioners for grant of

remission in exercise of their powers under

Articles 72 and 161 of the Constitution of

India.

(M. A. CHOWDHARY) (SANJAY DHAR)

JUDGE JUDGE

Srinagar,

27.09.2024

“Bhat Altaf-Secy”

Whether the order is reportable: Yes/No

Mohammad Altaf Bhat

I attest to the accuracy and

authenticity of this document

27.09.2024 13:29