Ghulam Qadir Bhat vs State and Others

Mansoor Ahmad Mir, Judge

Petitioner has invoked the jurisdiction of this court by the medium of this writ petition to command respondents to lodge the petitioner/ detenue

in Central Jail Srinagar in terms of MANUAL FOR THE SUPERINTENDENCE AND MANAGEMENT OF JAILS (hereinafter for short

Manual) And to command the respondents to consider his case for remission of sentence in terms of Govt. Circulars and provisions of Manual.

Respondents have filed reply and resisted the petition.

During the pendency of writ petition, petitioner has moved CMP No. 1208/2008 and it is prayed that respondents be directed to process the

case of the petitioner for grant of remission and to lodge the detenue in Central Jail, Srinagar. Respondents have filed objections and resisted the

petition. It is averred in the CMP that in terms of the provisions of Manual. The Prisoners Act, 1977 and other circulars issued by the Govt. from

time to time, petitioner has qualified for remission in terms of the provisions of Manual and respondents have in breach of provisions of Manual

lodged the petitioner in Central Jail Kathua. Accordingly it is prayed that respondents be directed to process the case of the petitioner for

remission and further they be directed to lodge the petitioner-detenue in Central Jail, Srinagar. Both these reliefs are claimed by the petitioner in

main writ petition.

With the consent of the learned counsel for the parties, I deem it proper to dispose of the writ petition along with the CMP in hand finally at this

stage.

Heard. Admit.

Petitioner came to be arrested in FIR No. PC.9 (S) CBI/92-Annexure-A under Sections 302 read with 120B RPC and 3 TADA (p) Act and

challan came to be presented against three persons including petitioner in the court of Presiding Officer, Designated Court under TADA (p) Act,

Jammu came to be acquitted vide judgment and order dated 14th of July, 2001. State questioned the said judgment before the Supreme Court by

the medium of Criminal Appeal No. 889 of 2001, came to be allowed and petitioner came to be convicted and sentenced to life imprisonment vide

judgment-order dated 30th of January, 2003-Annexure-B. Petitioner is presently lodged in Central Jail, Kathua and is undergoing the sentence.

The question is whether the petitioner has a right to be considered for remission and whether he is entitled to it?

Considering the ease of the prisoner for review is his right but grant of review is not his right. My this view is fortified by a latest Division Bench

Judgment of the Madras High Court dated 6th of April, 2010 delivered in case Writ Appeal No. 1207 of 2008 titled S. Nalini Srikaran v. State of

Tamil Nadu and others. It is apt to reproduce relevant part of the judgment herein:-

The appellant, a life convict in a crime that was cunning in conception, meticulous in planning and ruthless in execution in taking away the life of the

former Prime Minister of right, though she got a right to seek for consideration of her plea..

The Apex Court has laid down how: and when cases can be considered and what are the factors to be kept in mind in cases titled State of

Haryana and Others Vs. Mohinder Singh, ; State of Haryana v. Mahender Singh and others reported as AIR 2007 SCW 6988; AIR 2008 SCW

5110 titled Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka and Ramraj @ Nanhoo @ Bihnu Vs. State of Chhattisgarh, .

Rule 54.1 of the Manual provides which eases are to be excluded from the scope of review and which are not. Keeping in view the mandate of

Rule 54.1 of the Manual and the law laid down by the Apex Court read with the Division Bench Judgment of the Madras High Court, I deem it

proper to direct the respondents to consider the case of petitioner and pass orders for grant of remission or otherwise in terms of the provisions of

Manual, The Prisoners Act, 1977 and Prison Act while keeping in view the circumstances of the case, within three months from the date copy of

the order is served upon them.

in terms of the provisions of Chapter XXI of the (sic) to appoint places to which persons under sentence for life shall be sent and Govt. or

some officer duly authorized in this behalf by the Govt. shall order the removal of such persons to the places so appointed.

In terms of Rule 21.4 of the Manual, prisoners sentenced to undergo life imprisonment are to be admitted in Central Prisons. The definition of

word ""Prison"" is not given in the Manual however, Prison as defined in The Prisons Act, 1977 (1920 A.D), it means Jail or place used permanently

or temporarily under the general or special orders of (the Government) for the detention of prisoners. It is apt to reproduce Section 2.b of the

Prisoners Act herein:-

(b) ""Prison"" includes any place which has been declared by (the Government), by general or special order, to be a subsidiary.

Thus in terms of Rule 21.4 the Govt. or the competent Authority-Authorized authority is within its powers to admit or to transfer any life

convict from one Central Prison to another Central Prison in terms of Rule 21.1 of the Manual.

Respondents have specifically stated that petitioner-detenue was lodged in Central Jail Jammu in order to undergo life sentence, thereafter he

was transferred to Central Jail, Kathua in terms of Order No. 510 of 2004 dated 22nd of September, 2004 issued by the Director General of

Police (Prisons) J&K for the reasons given in the reply. Respondents have also filed objections to the CMP in which it is stated that petitioner had

created indiscipline in Central Jail Jammu and he was awarded initially solitary confinement for 7 days and thereafter he was shifted to Central Jail

Kathua in terms of Order No. 510 of 2004 dated 22.9.2004 supra. Further it is stated that behavior of the detenue was not cooperative.

This order of shifting the petitioner-detenue to Kathua Jail dated 22.9.2004 has not been questioned by the petitioner-detenue till today. Rule

21.-17 (21.17) of Manual mandates that the Jail Authorities have to ensure that detenues-convicts are lodged at such places in order to maintain

family ties, but it is discretionary and not mandatory. In terms of the mandate of Chapter XXI read with other provisions of Manual it is squarely

the discretion of the Govt. where to lodge the detenue-convict while keeping in view all the factors and circumstances. The authorities who are

manning the Jails have to ensure discipline and in order to maintain discipline they can pass orders for shifting of detenues.

In the given circumstances, the relief prayed for cannot be granted. Accordingly, writ petition is disposed of as indicated above.