Ashiq Hussain And Ors vs State And Ors

1 In this petition, petitioners submit that they have joined militant activities under compelling circumstances due to poverty, unemployment and wrong guidance in the year 2002 and 2003 respectively. Petitioner No.1 is stated to have got married in the year 2005 and petitioner No.2 in the year 1998 and both started living with their families.

2 According to the petitioners, vide Government order No. Home-55/H of 2004 dated 31.01.2004, approval came to be accorded to adoption of a new Rehabilitation Policy in order to encourage the terrorists to join mainstream and lead a normal life. It is submitted that the aforesaid Government order provided that the authority would accept the surrender, if it has reasons to believe that the terrorist concerned has undertaken a change of heart and wants to renounce the violence.

3 According to the petitioners, every surrenderee, after reporting before the authority concerned, was to get twofold rehabilitation incentives; (i) incentives for surrendered weapons; and (ii) rehabilitation incentives of Rs. 1.50 Lakh to be kept in an FDR in the name of surrenderee for a period of 03 years to be drawn by him only on completion of 03 years period and subject to good behavior and (iii) Rs. 2000/- monthly stipend for 03 years after surrender.

4 It is submitted that the petitioners surrendered before the Army. The petitioners are stated to have got transformed and reformed after their surrender into a law abiding and peace loving citizens. The petitioners submit that they are being harassed and threatened of arrest and prosecution in various FIRs by respondent No. 5. It is submitted that the respondents have tried to rope the petitioners in various FIRs, however , the said FIRs are stated to be of a general nature registered against unknown militants without there being name of any assailant. The investigation in the aforesaid FIRs is stated to have been completed and the cases have been closed for want of identity of the assailants in some cases. The challans are stated to have been produced at the time of surrender of the petitioners.

5 It is submitted that the petitioners are struggling in their life for earning livelihood for themselves and their families as no assistance is being provided to them by respondents 1 to 4. That apart, the petitioners are being unnecessarily harassed by the respondents. It is submitted that the petitioners have neither been paid monthly stipend of Rs. 2000/- nor Rs. 1.50 Lac deposited in the FDR in the name of the petitioners has been released in their favour. It is further submitted that, in order to deprive the petitioners from the aforesaid incentives, respondents are utilizing the services of the respondent No. 5 to involve the petitioner in the FIRs supra. The petitioners thus, seek writ of Mandamus for commanding the respondents to strictly comply with the Government order No. 55/H of 2004 dated 31.01.2004 and provide all the benefits to the petitioners which have accrued to them upon their surrender. They also pray for grant of Writ of Prohibition for restraining the respondents, particularly respondent No. 5 from harassing them and falsely implicating them in various FIRs.

6 The respondents have filed objections wherein they have stated that the petitioners have concealed the material facts regarding status of the FIRs in question. The investigation in the said FIRs is stated to have been completed in which petitioners and other co-accused persons have been found involved in commission of crime. The petitioners are stated to have been involved in the commission of various offences along with the other co-accused persons during their militancy period. The respondents, in their objections, however, have not replied any contentions raised by the petitioners in the writ petition about the non adherence of the terms of the surrender policy or the allegations of harassment at the hands of respondents, particularly respondent No.5.

7 Having heard learned counsel for the parties and perused the record, it came to fore that the petitioners surrendered and laid their arms before Indian Army. It is further revealed that the petitioners are involved in various FIRs and that the grant of incentives in their favour under the surrender Policy of 2004 stands deferred till the Court cases are finalized and the petitioners are pronounced innocent. Clause 2 of order dated 31.01.2004 supra provides as under: -

The following categories of terrorists from amongst residents of Jammu and Kashmir who surrender after issue of this order would rehabilitated under this scheme:

a) Known Militants who surrender with weapons.

b) Hardcore Militants even without weapon.

The authority accepting the surrender shall have reason to believe that the terrorist concerned has undergone a change of heart and wants to renounce violence.

Exceptions

i) The surrenderee involved in heinous crimes like murder, rape, abduction etc will be entitled to benefits only when legal action has been completed, court cases decided and the person has been pronounced innocent.

ii) Surrender without incentives will also be considered in cases of youth who went across for training but want to return and join the mainstream and against whom there are no heinous offences in consultation with MHA.

iii) The surrenderee should not be a re-cycled terrorist or one who has already surrendered under earlier surrender policy.

8 What emerges from the above exceptions appended in clause 2 supra is that a surrenderee involved in the commission of offences of murder, rape or abduction becomes entitled to all the benefits and incentives only when legal action is completed, Court cases are decided and the surrenderee is found innocent.

9 The admitted position is that the rehabilitation incentives would become available to the petitioners only on the conclusion and completion of Court cases and pronouncement of their being innocent. The purport and spirit of the rehabilitation Policy dated 31.01.2004 has to be adhered by both the petitioners as also the respondents and both the petitioners as well as the respondents are bound by the same.

10 From the perusal of record, it appears that the respondents have not committed any breach in following the rehabilitation Policy dated 31.01.2004 supra, viz-a-viz the petitioners. The petitioners under the cover of rehabilitation Policy cannot escape from trial of the cases, they are involved in.

11 In view of the above, the present writ petition is misconceived and the same is, accordingly, dismissed.