Srinagar: The High Court of J&K and Ladakh on Friday dismissed an appeal by Dr Ashiq Hussain Factoo, a separatist leader, against a single bench judgment of 2012 that had dismissed his prayer of release from custody on the ground that he had completed more than 20 years in jail.
The court, however, left his matter of remission for consideration open to the competent constitutional authorities.
Factoo is serving life imprisonment for allegedly killing a Kashmiri Pandit human rights lawyer, H N Wanchoo in December 1992.
A division bench comprising Justices M A Chowdhary and Sanjay Dhar held “the Letters Patent Appeal filed by Ashiq Hussain Factoo against the impugned judgment dated 16.11.2012 is without any merit and the same is dismissed accordingly”.
The bench subsequently stated “it shall be open to the competent constitutional authorities to consider the cases of the petitioners for grant of remission in exercise of their powers under Articles 72 (to President) and 161 (to Governor) of the Constitution of India”.
Appellant Factoo had challenged judgment dated 16.11.2012 passed by the Single Judge, whereby his writ petition seeking a mandamus against the respondents to release him from custody on the ground that he has completed more than 20 years in jail, had been dismissed.
Vide Writ petition bearing WP (Crl) No.02/2024, Factoo had also 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.
The state, according to the judgment, alleged that Factoo, along with other co-accused, was involved in murder of H N Wanchoo “so as to create an imminent sense of terror in the minority community in Kashmir”.
Thereafter he was charged for offences under Section 302, 120-B RPC and Section 3 of the TADA Court which acquitted him of the charges in 2001.
The judgment was assailed by the investigating agency, CBI, before the Supreme Court of India.
The apex court in January 2003 set aside the judgment of the TADA Court. Consequently, he along with others was sentenced to undergo life imprisonment.
Initially Factoo had filed a writ petition in 2009 challenging order dated 14.09.2009 passed by the respondents, whereby his claim for premature release after having completed sentence of more than 14 years, was rejected.
His petition was allowed by a Single Judge of this court in terms of judgment in 2010 and the respondents were directed to reconsider the claim of the appellant.
The judgment came to be assailed by the respondents by way of LPA No.120/2010.
A Division Bench of this court vide judgment dated 08.09.2011, allowed the appeal of the respondent State and set aside the judgment dated 05.06.2010 of the Single Judge.
While allowing the appeal, the Division Bench of this court held that impediment in the way of the appellant herein is Rule 54.1 of the Jail Manual which renders him ineligible for grant of remission.
The appellant Factoo instead of challenging Rule 54.1 of the Jail Manual, filed another writ petition bearing OWP No.806/2012 before this court, wherein he claimed that because he has been in custody for more than 20 years, as such, he is entitled to be released from custody.
It was contended by the appellant that imprisonment for life in terms of explanation to Section 3 of the J&K Prisons Act means sentence of 20 years, as such, he has completed the sentence of life imprisonment and is entitled to be released from custody.
The Single Judge bench on November 16, 2012 ordered that the sentence of life imprisonment means imprisonment for the entire natural life of the person. As such, the appellant is not entitled to be released from custody simply because he has completed 20 years of imprisonment, it said.
The aforesaid judgment has been put to challenge by the appellant by way of present appeal on the ground that in terms of explanation to Section 3 of the Jammu and Kashmir Prisoners Act, 1977, for the purpose of execution, sentence of imprisonment for life would mean imprisonment for 20 years but the Writ Court has not adverted to this aspect of the matter.
It was contended that even in terms of Para 46.18 of Chapter XLVI of Jail Manual, which relates to execution of sentence, the sentence of imprisonment for life has to be taken as imprisonment for 20 years.
