Jammu & Kashmir High Court - Srinagar Bench
State Of J&K & Ors vs State Of Gujarat Reported In (2005) 2 on 8 September, 2011
IN THE HIGH COURT OF JAMMU & KASHMIR AT SRINAGAR LPA No. 120 of 2010 State of J&K & ors Petitioners Dr. Ashiq Hussain Factoo Respondents !Mr. A. M. Magray, Advocate ^Mr. M. A. Qayoom, Advocate Honble Mr. Justice F. M. Ibrahim Kalifulla, Acting Chief Justice Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date: 08/09/2011 :J U D G M E N T:
1. Respondent (Writ Petitioner) faced trial for the commission of various offences which include offence punishable under Section 3 of TADA (P) Act but earned acquittal from the Designated Court vide judgment dated 14th of July, 2001. On appeal before the Honble Apex Court was convicted vide judgment dated 30.1.2003 rendered in Criminal 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 life imprisonment. After undergoing 2/3rd of the sentence i.e. 14 years and 23 days, as in the year 2007, claimed consideration for premature release on review by the Review Board in accordance with the provisions of JAMMU & KASHMIR MANUAL FOR THE SUPERINTENDENCE AND MANAGEMENT OF JAILS (hereinafter referred to as the Manual). With the intervention of the Court his case was placed before the Review Board and the Review Board recommended his premature release. While same was pending consideration before the Government, IG Police (CID)(HQ) seem to have addressed a letter dated 11.07.2008 to appellant No.1 intimating therein that the prisoners convicted in terrorist crimes are not eligible for review.
2. The respondent (Writ Petitioner) filed a writ petition OWP No.157/2009, which came to be disposed of with the direction to the Government to accord consideration to the premature release of the petitioner. In compliance thereof, Government accorded consideration, 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 medium of writ petition (OWP) No.997/2009 with further prayer for issuance of command in the name of respondents to release the respondent (Writ Petitioner) from jail in the light of recommendations made by the Statutory Review Board.
3. The learned Writ Court while interpreting Rule 54.1 of the Manual has concluded that first part of Rule is controlled by the second part and held that the offenders who are 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 and 489-D RPC are excluded from such review. Therefore, the offenders who are sentenced for commission of other offences including terrorist crimes are not excluded from the scope of review. The Writ Court finally allowed the writ petition.
4. Dissatisfied with the judgment of the Writ Court dated 05.06.2010, the instant appeal has been filed.
5. The point in issue is interpretation of Rule 54.1 of the Manual. For facility of reference, Rule 54.1 is reproduced here-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 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 shall be excluded from such review.
6. The Rule firstly provides that the offenders convicted for the offences of rape, forgery, dacoity, terrorist crimes, corruption and black marketing are not eligible for being reviewed by the Review Board but then in the second part of the rule i.e. Accordingly 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 shall be excluded from such review, when said Sections pertains to various types of offences of rape, forgery and dacoity, it is in this context the said second part has given rise to ambiguity.
7. Learned counsel appearing for the appellant contends that the second part provide for exclusion of the offences from review which are punishable under Sections 376(except first part), 396, 400, 402, 467, 471, 472, 474 (latter part), 489-A, 489-B and 489-D of Ranbir Penal Code, same are exception to other offences which fall under the head rape, forgery and dacoity whereas it does not control the offences of terrorist crimes, corruption and black marketing, further added that the provision has to be interpreted in a manner so as to advance the object. While highlighting the scope for interpretation, relied on the judgments reported in (2005) 2 SCC 409 and AIR 2010 SC 1969.
8. On the other hand while opposing the contentions, learned counsel for the respondent highlighted that the Writ Court has correctly interpreted the provisions because the words Accordingly, offenders sentenced under sections 376 (except first part), 396, 400, 402, 467, 471, 472, 474 (latter part), 489-A, 489-B and 489-D of Ranbir Penal Code shall be excluded from such review clearly indicates that it is only these offences which are excluded from the purview of review. Supporting his submission, relied on the judgments reported in AIR 1959 SC 459, AIR 1959 SC 1331, AIR 1992 SC 96 and (2010) 4 SCC 216.
9. The question which emerges is as to what is the scope of interpreting the Statute and how it has to be interpreted. It has to be borne in mind that the interpretation shall not be such which will in any manner frustrate the intention of the legislation and it shall be aimed at removing the ambiguity. It has not to be interpreted in a manner so as to add words to the Statute which in fact is the domain of the legislature. To re-write or recast the legislation is impermissible. In this connection it shall be quite relevant to quote as to what law has been laid down by the Honble Apex Court in the judgments as referred by the learned counsel for the parties.
10. From the Constitutional judgment rendered by the Honble Apex Court captioned Prakash Kumar alias Prakash Bhutto & ors Vs. State of Gujarat reported in (2005) 2 SCC 409 paras 14 and 30 are relevant to be quoted:-
14. The more stringent the law, the less is the discretion of the court. Stringent laws are made for the purpose of achieving its objectives. This being the intendment of the legislature the duty of the court is to see that the intention of the legislature is not frustrated. If there is any doubt or ambiguity in the statutes, the rule of purposive construction should be taken recourse to, to achieve the objectives.
30. By now it is well settled principle of law that no part of a statute and no word of a statute can be construed in isolation.
Statutes have to be construed so that every word has a place and everything is in its place. It is also trite that the statute or rules made there-under should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved.
11. In the judgment Pallawi Resources Ltd. Vs. Protos Engineering Company Pvt. Ltd reported in AIR 2010 SC 1969 the Honble Apex Court while relying on the above referred judgment has held that the provision in a Statute must be read as a whole. There is no scope for pick and choose. In this connection following portion from para 13 is reproduced here-under:-
13. A cardinal principle of statutory interpretation is that a provision in a statute must be read as a whole and not in isolation ignoring the other provisions of that statute. While dealing with a statutory instrument, one cannot be allowed to pick and choose. It will be grossly unjust if the Court allows a person to single out and avail the benefit of a provision which is favourable to him
12. In the judgment rendered in the case Union of India & anr. Vs. Deoki Nandan Agarwal (AIR 1992 SC 96), it has been held that the Courts shall have to adopt a construction which will carry out the obvious intention of the legislature but could not legislate itself. Following portion from para 14 shall be relevant to be quoted:
.......Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.
13. In the judgment rendered in the case of Sri Ram Ram Narain Medhi & ors. Vs. State of Bombay (AIR 1959 SC 459), it has been held:
......If the language of the enactment is clear and unambiguous it would not be legitimate for the Courts to add any words thereto and evolve there from some sense which may be said to carry out the supposed intentions of the legislature. The intention of the Legislature is to be gathered only from the words used by it and no such liberties can be taken by the Courts for effectuating a supposed intention of the Legislature......
14. In the judgment captioned British India General Insurance Co. Ltd. Vs. Captain Itbar Singh and others (AIR 1959 SC 1331) it has been held that the words cannot be added in the Statute because rules of interpretation do not permit to do unless the section as it stands is meaningless or of doubtful meaning.
15. In the light of law as has been laid down by the Honble Apex Court, the Statute has to be interpreted in a manner which may not give rise to the situation of re-writing the Statute or adding the words to the Statute and the interpretation shall be imperative when ambiguity is noticed, otherwise no question of interpretation so as to give a different colour to the same.
16. In the backdrop of afore-stated law, the first question which emerges is as to whether Rule 54.1 of the Manual requires interpretation. If yes, how same is to be interpreted. Rule 54.1 as quoted above gives rise to ambiguity as the words employed i.e. Accordingly offenders sentenced under Sections 376 (except first part), 396, 400, 402, 467, 471, 472, 474 (latter part), 489-A, 489-B and 489-D of Ranbir Penal Code shall be excluded from such review gives rise to a situation where-under first part of the Rule in its operation gets diluted.
17. For interpreting statute correctly and in order to avoid ambiguity so as to supplement the real object, purposive construction is imperative. Rule has to be construed in its real spirit. If the interpretation that only such offences i.e. 376 (except first part), 396, 400, 402, 467, 471, 472, 474 (latter part), 489-A, 489-B and 489-D of Ranbir Penal Code are excluded from review is accepted, same will defeat the very object of the Rule. Rule in fact provides for ineligibility of the prisoners convicted of offences under six heads i.e. (1) rape, (2) forgery, (3) dacoity, (4) terrorist crimes, (5) corruption and (6) black marketing.
18. The offence of rape is defined under Section 375 and punishment is prescribed under Sections 376 to 376-D. Out of these offences only offence under Section 376 (except first part) is excluded from review.
19. Dacoity is defined under Section 395 RPC and various types offences of Dactoity are punishable under various sections, such as 395, 396, 397, 398, 399, 400, 401 and 402 RPC. So out of these sections only Sections 396, 400 and 402 RPC have been excluded from review because punishment under these Sections for serious and heinous offences is prescribed and it is in that backdrop prisoners convicted for such offences are ineligible for being reviewed by the Review Board.
20. Chapter XVIII deals with different types of forgeries and begins from Section 463 and the punishments are prescribed under various Sections i.e. Sections 465 to 477-A and out of these Sections only Sections 467, 471, 472, 474 (latter part) 489-A, 489-B and 489-D RPC have been excluded from review because of the gravity and heinousness of offences.
21. What emerges from the above is that under the head rape, forgery and dacoity prisoner convicted only for the offences under Sections 376 (except first part), 396, 400, 402, 467, 471, 472, 474 (latter part) 489-A, 489-B and 489-D RPC are excluded from the review which would mean that prisoners convicted for other offences punishable under various sections concerning different types of rape, forgery and dacoity have been included, so are eligible for review. In clear cut terms the second part of the Rule controls the offences under the head rape, forgery and dacoity whereas offences under the head terrorist crimes, corruption and black marketing in whatever form committed, in its entirety have been excluded from review. So the prisoners convicted for the offences under the head terrorist crimes, corruption and black marketing are not eligible for being reviewed by the Review Board.
22. The respondent (Writ Petitioner) admittedly has been convicted for commission of offence under Section 3 TADA (P) Act read with Section 302, 120-B RPC by the Honble Apex Court, so in certain terms has been convicted for offence i.e. terrorist crime. It being so, the respondent was not eligible under Rule 54.1 of the Manual for being reviewed by the Review Board but has been considered and recommended for premature release subject to the provisions of the Manual. The Government after considering recommendations of the Board has come to the conclusion that the respondent (Writ Petitioner) in terms of Rule 54.1 is not eligible for review having been convicted for commission of terrorist crimes.
23. Learned counsel appearing for the respondent (Writ Petitioner) with all vehemence projected that the Review Board while reviewing the case has considered all aspects as permissible under Rule 54.15 of the Manual which provide for considering such circumstances as were not before the Court when the sentence was awarded. In this context learned counsel would contend that the respondent (Writ Petitioner) in fact is innocent, he has not committed any crime and it is in that backdrop all circumstances were considered by the Board and only then recommendation for release was made and the Government had no option but to accept the recommendation.
24. It is true that the recommendation of the Board may have prevailing force provided same are in consonance with the provisions of the Manual but we are afraid to accept the argument of the learned counsel that the appellant has not committed any offence when the Honble Apex Court has convicted the appellant for the commission of offence punishable under Section 3 TADA (P) Act read with Section 302 and 120-B RPC.
25. The contention of learned counsel that the Government has no power to reject such recommendation, pales into insignificance because the Government was satisfied that the respondent (writ petitioner) was not eligible for review by the Review Board.
26. Learned counsel finally highlighted various compelling circumstances to which respondent (Writ Petitioner) is subjected to and highlighted that his presence back home is unavoidable because his wife is constantly under preventive custody and their children are deprived of the parental affection so have become victims and added that the appellant has done his Ph. D degree in Islamic Studies and is pursuing another doctorate degree. He has obtained a certificate issued by the jail authorities certifying the fact that his behaviour has been up to the mark and he has been imparting education through distance mode i.e. he was engaged as Instructor for running of total literacy programme to the inmates which is run under the guidance of State Resource Centre University of Kashmir. He has been awarded Ph. D degree in July, 2006 in Islamic Studies and presently is working for his second Ph. D programme. Respondent (Writ Petitioner) has delivered lectures to the students who have been registered with IGNOU (Indira Ghandi National Open University) especially in Social Science. More than 125 students completed their Bachelors Preparatory Programme (BPP), graduation and Post Graduation courses under his guidance. With all such background, such prisoner does not deserve to remain in jail, as on date he has already completed nearly 16 years in the jail, when in terms of Rule 21.2 of the Manual, for the purposes of execution, sentence of imprisonment for life shall mean a sentence for 20 years.
27. The position as highlighted warrants favourable consideration but impediment in the way of respondent (Writ Petitioner) is the scope of Rule 54.1 of the Manual which renders him ineligible.
28. While summing up what emerges is that the impugned judgment is unsustainable, so is set aside. Appeal, as such, is allowed.
29. The disentitlement of the respondent (writ petitioner) for remission of his sentence in terms of Rule 54.1 of the Manual does not deprive him from working out other remedies.
30. From the judgment rendered by the Honble Apex Court in the case of State of Haryana v. Jagdish reported in (2010) 4 SCC 216. Para 36 is relevant to be quoted:
36. Articles 72 and 161 of the Constitution provide for a residuary sovereign power, thus, there can be nothing to debar the authority concerned to exercise such power, even after rejection of one clemency petition, if the changed circumstances so warrant.
31. Irrespective of the provision i.e. Section 401 and 402 of the State Code of Criminal Procedure, which correspond to Section 432 and 433 of the Central Code, the power of the executive is absolute and unfettered to remit sentence.
32. To protect society from the convict and also to rehabilitate the offender is the goal to be achieved by the welfare State. There has to be some reformative and rehabilitative measures akin to the relevancy of the circumstances. Constitutional provisions like Article 72 of the Constitution of India and Section 34 of the State Constitution which is para materia with Article 161 of the Constitution of India, takes care of the same. In the above back ground it is for the respondent(writ petitioner) to work out other remedies as may be available to him.
33. Appeal succeeds and the writ petition shall stand accordingly disposed of.
(Mohammad Yaqoob Mir) (F. M. Ibrahim Kalifulla)
Judge Acting Chief Justice
Srinagar
08.09.2011