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| Conviction under Terrorist Act are not eligible for grant of remission: DB | | | Early Times Report
JAMMU, Sept 27: A Division Bench of Jammu & Kashmir and Ladakh High Court Comprising Justice Sanjay Dhar and Justice MA Chowdhary held that conviction under Terrorists Acts are not eligible for grant of remission.
This landmark judgment has been passed by the Division Bench in Letters Patent Appeal filed by Ashiq Hussain Factoo and another filed by Nazir Ahmad Sheikh judgment dated 16.11.2012 passed by the learned Single Judge, whereby the writ petition filed by Ashiq Hussain Factoo 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.
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.
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 morepersons 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 14th 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 Court vide judgment dated 30th 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 6th February, 1993.
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 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.
DB after hearing the agruments of counsel observed that this Court 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, 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. DB observed that 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. Thus, the petitioners are not eligible for grant of remission in the face of impugned Rules.
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.
DB observed that 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. —JNF |
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