Commuting, remitting sentence, a Govt prerogative: HC

KT NEWS SERVICE. Dated: 11/19/2012 11:34:55 PM

SRINAGAR, Nov 19: The High Court has said commuting or remitting the sentence is the prerogative of the government and if the sentence of imprisonment for life has been passed the Government may, without the consent of the offender commute the punishment for imprisonment of either description for a term not exceeding fourteen years.
While dismissing the petition of Dr Mohammad Qasim Faktoo, the High Court has said: “…That the “Life imprisonment” means an imprisonment for the whole of a convict’s natural life and does not automatically expire on his serving a sentence of fourteen years or twenty years unless, of course, the sentence is remitted or commuted by the Government in accordance with law. There is no provision in the Ranbir Penal Code or the State Code of Criminal Procedure providing to the contrary or prescribing any definite period for life imprisonment. ….That it falls within the exclusive domain of the Government to remit or commute the sentence in accordance with the relevant provisions of law and rules in force….”
The court has said that it has always clarified that the punishment so awarded would be subject to any order passed in exercise of the clemency powers of the President of India or Governor of State, as the case may be. “Pardons, reprieves and remissions are granted in exercise of prerogative power…”
The court has also held the argument that after completion of 20 years of life imprisonment the convict is automatically entitled to be released not tenable, observing that if the jail authorities take into consideration the conduct of convict and make a recommendation for remission or release of convict after 20 years or 14 years, the sanction of the Government is pre-requisite. “It is the domain of the Government to consider the case along with the recommendation made and pass an order in the facts and circumstances of each case. Writ of mandamus cannot lie to command the Government for passing such order or to release the convict after expiry of 14 years or 20 years without any specific order,” reads the Court judgment passed by Justice Mansoor Ahmad Mir.
The court has finally said: “In view of what has been discussed hereinabove and in light of the law laid down by the judgments supra, coupled with the fact that the respondents vide order dated 23.08.2012 have dismissed the representation of petitioner, this writ petition merits dismissal. Dismissed as such along with all connected CMPs. However, the petitioner is at liberty to work out a remedy, if any, available under law.”
It may be recalled that Dr Faktoo was first detained in 1993 under the Public Safety Act. However, after 6 years of imprisonment, a TADA court acquitted him of all the charges. Police later rearrested him again at the Indira Gandhi International Airport in 2002 after attending a Conference on Kashmir in London.
In 2003, he was sentenced to life imprisonment on charges of his alleged involvement in murder of human rights activist, H N Wanchoo in 1992. Dr Faktoo denied the charges. Earlier, Dr Faktoo had filed a petition praying that he was entitled for a review of his sentence. The High Court later asked the government on May 23, 2008 to constitute a review board to consider his release.
Following a meeting, the review board recommended his premature release. However, the government rejected the review board recommendation.



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