The Supreme Court on Tuesday dismissed a plea of Ashiq Hussain Faktoo, Kashmiri separatist leader and a former member of terror outfit Hizbul Mujahideen, seeking a review of its verdict awarding life imprisonment to him for killing human rights activist H N Wanchoo.
Faktoo, who is in jail since 1993, is the husband of Asiya Andrabi, also a separatist leader and chairperson of Islamist organisation Dukhtaran-e-Millat.
A three-judge bench headed by Justice Ranjan Gogoi, which treated the writ petition of Faktoo as a review plea, said the "comprehension" of the accused that the earlier judgement was "erroneous" would not enable the court to "reopen" the entire case.
The bench, also comprising Justices P C Pant and A M Khanwilkar, said the open court hearing of the review petitions is available as a matter of right "only in death sentence cases".
"The present writ petition under Article 32 of the Constitution of India by no stretch of reasoning would fit into any of the permissible categories of post conviction exercises permissible in law as laid down by this court.
"The doctrine of ex debito justitiae (as of right) being circumscribed by the judgment of this court in Rupa Ashok Hurra ...it is for the petitioner to exhaust the said remedy, if is he so inclined and so advised. Merely because in the comprehension of the writ petitioner the judgment of this court is erroneous would not enable the court to reopen the issue in departure to the established and settled norms and parameters of the extent of permissible exercise of jurisdiction as well as the procedural law governing such exercise.
"We, therefore, hold that the present writ petition is not maintainable and is accordingly dismissed subject to the observations as above," the bench said.
Senior advocate Ram Jethmalani, appearing for Faktoo, had assailed 2003 ruling of the apex court, convicting the separatist leader, on the ground that his confession recorded under the TADA was not admissible as evidence on grounds including that it had not been corroborated.
In its verdict the court referred to a Constitution Bench judgment in the Rupa Ashok Hurra case in which the legal doctrine of 'ex debito justitiae' had been dealt with.
It said that if a judgement is such that it has the effect of "eroding the public confidence in the justice delivery system", the apex court can revisit the entire case to set the things right.
"We are of the view that on the strength of the Constitution Bench judgment in Rupa Ashok Hurra case the present writ petition would not be maintainable. It would also not be maintainable as a review petition inasmuch as review petition filed by the writ petitioner has been dismissed by this court on 2nd September, 2003.
"Open court hearing of review petitions in terms of the judgment of this court in Mohd. Arif alias Ashfaq (supra) is available as of right only in death sentence cases," it said.
"...the doctrine of ex debito justitiae would prevail over procedural law but would be applicable only in a situation where the order of this court had been passed without notice or where the order has the effect of eroding the public confidence in the justice delivery system," it said.
