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Judgment
Respondent (Writ Petitioner) faced trial for the commission of various offenceswhich include offence punishable u/s 3 of TADA (P) Act but
earned acquittalfrom the Designated Court vide judgment dated 14th of July, 2001. On appeal beforethe Hon'ble Apex Court was convicted vide
judgment dated 30.1.2003 rendered inCriminal Appeal No.889 of 2001 for commission of offence punishable u/s 3 of TADA (P) Act read with
Sections 302 and 120-B RPC and sentenced to lifeimprisonment. After undergoing 2/3rd of the sentence i.e. 14 years and 23 days, as inthe year
2007, claimed consideration for premature release on review by the ReviewBoard in accordance with the provisions of JAMMU & KASHMIR
MANUAL FOR THESUPERINTENDENCE AND MANAGEMENT OF JAILS (hereinafter referred to as 'theManual'). With the intervention
of the Court his case was placed before the ReviewBoard and the Review Board recommended his premature release. While same waspending
consideration before the Government, IG Police (CID)(HQ) seem to haveaddressed a letter dated 11.07.2008 to appellant No.1 intimating therein
that theprisoners convicted in terrorist crimes are not eligible for review.
The respondent (Writ Petitioner) filed a writ petition OWP No.157/2009, whichcame to be disposed of with the direction to the Government to
accord consideration tothe premature release of the petitioner. In compliance thereof, Government accordedconsideration, 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 mediumof writ
petition (OWP) No.997/2009 with further prayer for issuance of command in thename of respondents to release the respondent (Writ Petitioner)
from jail in the light ofrecommendations made by the Statutory Review Board.
The learned Writ Court while interpreting Rule 54.1 of the Manual has concludedthat first part of Rule is controlled by the second part and held
that the offenders whoare 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 and489-D RPC are excluded from such review. Therefore, the offenders who aresentenced for
commission of other offences including terrorist crimes are not excludedfrom the scope of review. The Writ Court finally allowed the writ petition.
Dissatisfied with the judgment of the Writ Court dated 05.06.2010, the instantappeal has been filed.
The point in issue is interpretation of Rule 54.1 of the Manual. For facility ofreference, 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 u/s 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.
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 u/s
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.
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 Prakash Kumar @ Prakash Bhutto Vs. State of Gujarat, .
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 Sri Ram Ram Narain Medhi Vs.
The State of Bombay, .
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 Hon'ble Apex Court in
the judgments as referred by the learned counsel for the parties.
From the Constitutional judgment rendered by the Hon'ble Apex Court captioned Prakash Kumar @ Prakash Bhutto Vs. State of Gujarat,
paras 14 and 30 are relevant to be quoted:-
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.
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.
In the judgment Pallawi Resources Ltd. Vs. Protos Engineering Company Pvt. Ltd reported in AIR 2010 SC 1969 the Hon'ble 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:-
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.
In the judgment rendered in the case Union of India and another Vs. Deoki Nandan Aggarwal, , 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.
In the judgment rendered in the case of Sri Ram Ram Narain Medhi Vs. The State of Bombay, , 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....
In the judgment captioned British India General Insurance Co. Ltd. Vs. Captain Itbar Singh and Others, 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.
In the light of law as has been laid down by the Hon'ble 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.
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.
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.
The offence of rape is defined u/s 375 and punishment is prescribed under Sections 376 to 376-D. Out of these offences only offence u/s 376
(except first part) is excluded from review.
'Dacoity' is defined u/s 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.
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.
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.
The respondent (Writ Petitioner) admittedly has been convicted for commission of offence u/s 3 TADA (P) Act read with Section 302, 120-B
RPC by the Hon'ble 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.
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.
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 Hon'ble Apex Court has
convicted the appellant for the commission of offence punishable u/s 3 TADA (P) Act read with Section 302 and 120-B RPC.
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.
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.
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.
While summing up what emerges is that the impugned judgment is unsustainable, so is set aside. Appeal, as such, is allowed.
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.
From the judgment rendered by the Hon'ble Apex Court in the case of State of Haryana v. Jagdish reported in (2010) 4 SCC 216. Para 36 is
relevant to be quoted:
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.
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.
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.
Appeal succeeds and the writ petition shall stand accordingly disposed of.