Reserved On 19.05.2022 vs Union Of India And Ors
2022 Latest Caselaw 751 j&K/2

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR


                                                  WP(C ) No. 11/2022
                                                  CM No.13/2022.


                                               Reserved on 19.05.2022.
                                               Pronounced on 27.05.2022.
Mohammad Latief Magrey
                                                            ..... petitioner (s)

                               Through :- Ms. Deepika Singh Rajawat,
                                          Advocate.

                         V/s

Union of India and ors                                     .....Respondent(s)

                               Through :- Mr. T. M. Shamsi, ASGI.
                                          Ms. Asifa Padroo, AAG.

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE


                                JUDGMENT

1. The petitioner is father of one Mohd Amir Magrey who was amongst

four persons who were killed in an encounter between the Police and

Militants that took place on 15.11.2021 at Hyderpora area of District

Budgam. As per the version of the respondents, Police Station Saddar

received a written report along with seizure memo of arms/ammunitions from

2 RR Army Camp, Zainkote Srinagar through HC Chain Singh to the effect

that at 5.15 P.M Army 2 RR received reliable information that some terrorists

are hiding in a building within the jurisdiction of Police Station Saddar and

have planned to attack security forces. Upon said information, Army

cordoned the area and started search operation to nab the terrorists. During

search operation, the terrorists hiding in the building opened indiscriminate

firing upon the search party, which was retaliated and in the ensuing

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encounter two terrorists and their two associates were killed. Some arms and

ammunition was also recovered from the encounter site. On the basis of the

aforesaid information, Police Station Saddar registered FIR No. 193/2021

under Sections 307/120-B IPC, 7/27 Arms Act, 16, 18, 20 ULA(P) Act and

the investigation entrusted to SDPO Saddar Srinagar. During the course of

investigation the Investigating Officer visited the site of encounter and

recovered four bullet ridden unidentified dead bodies and the dead bodies

were shifted to Police Hospital Srinagar for medico legal formalities. After

conducting postmortem etc. the dead bodies were identified as a foreign

terrorist Bilal Bhai @ Hyder @ Saqlain R/O Pakistan, Aamir Latief Magrey

S/O Mohammad Lateef Magrey R/O Seeripora Tehsil Gool Ramban, Altaf

Ahmad Bhat S/O Abdul Rehman Bhat R/O Old Barzulla Srinagar and Dr.

Mudasir Gull S/O Ghulam Mohammad Rather R/O Parraypora Srinagar. All

the four dead bodies were shifted to Handwara Zachaldara for burial.

2. It is the case of the respondents that the investigation conducted later

on by Special Investigation Team (SIT) headed by DIG CKR Srinagar has

collected sufficient evidence with regard to the active involvement of the son

of the petitioner, Amir Latief Magrey in terrorist activities.

3. It is also not in dispute that the last rites of the son of the petitioner

along with three others were performed through Auqaf Committee Wadder

Payeen as per religious obligations. It also transpires from material on record

that the bodies of the two of the four persons killed in the encounter were

later on exhumed and handed over to their relatives for performing their last

rites at the place of their choice. It appears that the parents of deceased Altaf

Ahmad Bhat and Dr. Mudasir Gul approached the Deputy Commissioner

Srinagar for handing over bodies of the deceased for performing their last

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rites. The District Magistrate Srinagar vide his communication Nos.

DMS/JUD/Misc/2840-2844/2021 and DMS/JUD/Misc/2845-2849/2021

dated 18.11.2021 recommended to the District Magistrate Kupwara to

consider the request of the family members of the deceased Mohd Altaf Bhat

and Dr. Mudasir Gul for handing over the dead bodies. The District

Magistrate Kupwara vide his Order No. DCK/Ps/2021/232/9328-38 dated

18.11.2021 directed the Superintendent of Police Handwara to arrange

exhumation of the bodies after proper identification and hand over the same

to their legal heirs for performing their last rites as prayed by them. In

compliance to the direction of the District Magistrate, Kupwara, the bodies of

Mohd Altaf Bhat and Dr. Mudasir Gul were exhumed and after proper

identification handed over to their legal heirs for performing last rites. The

bodies of other two persons killed in the encounter i.e. Bilal Bhai, a foreign

terrorist and son of the petitioner, who were buried through Auqaf

Committee Wadder Payeen along with Altaf Ahmad Bhat and Dr. Mudasir

Gull, were not exhumed and handed over to their legal heirs. With regard to

deceased Bilal Bhai, a resident of Pakistan, nobody owned his body nor was

there any demand for handing over of the dead body from any quarter.

However, with regard to Amir Lateef Magrey, the petitioner claims that he

approached all authorities for handing over the body of his deceased son but

nobody listened to him and body of his deceased son was, without his

presence, buried at Wadder Payeen graveyard.

4. It is submitted by the petitioner that it was only on 16.11.2021 he was

informed by Police Station Gool that his son Amir Latief Magrey had been

killed in an encounter in Kashmir and that he should go to Kashmir to

identify the body. On 16.11.2021 the petitioner along with his family

WP(C ) No. 11/2022

members reached Police Station Saddar where he was told that Amir was a

militant and was killed along with two other associates at Hyderpora and that

the dead body of Amir has been buried. The petitioner claims that he was

totally unconvinced with the respondents‟ claim that Amir was a militant and

was killed in an encounter and, therefore, approached the authorities for

intervention. Following relentless protests, the Jammu and Kashmir

Lieutenant Governor ordered probe into the matter on 18.11.2021. It is on

the same day, the petitioner claims, the dead bodies of two other persons,

namely, Altaf Ahmad Bhat and Dr. Mudasir Gull were exhumed and handed

over to their families.

5. It is claimed by the petitioner that his entire family has all along

remained associated with Indian Army and other security agencies and were

instrumental in elimination of militants in his area. The petitioner relies upon

certificate of commendation issued in his favour by the General Officer

Commanding In Chief, Head Quarter CIF (U) C/O 56 APO dated 23.01.2006

and State award for bravery for the year 2012 conferred by the State

Government upon the petitioner for having shown exemplary courage of

killing a militant on spot who had attacked and shot dead one Abdul

Qayoom. The petitioner has also placed on record other citations and

commendation certificates to make good his point that the petitioner being a

nationalist and loyal to army and security forces, was even deprived to have

and bury the dead body of his son as per traditions, religious obligations and

religious faith, which the deceased professed during his life time. There was

even deprivation of giving burial to his son in the native graveyard. It is the

grievance of the petitioner that the respondents have very conveniently put

WP(C ) No. 11/2022

the tag of terrorist on his son and have denied even decent burial to the dead

body.

6. The petitioner claims to have approached Deputy Commissioner

Srinagar, who was heading the magisterial enquiry as also the Lieutenant

Governor of the State for expediting the probe and handing over the dead

body of his son Amir so that he could perform his last rites as per his belief

and traditions. Having faced reluctance from every quarter, the petitioner

decided to knock the doors of this Court and therefore this writ petition.

7. In this petition, the petitioner, claiming his right to give decent burial

to the dead body of his son, has prayed for a direction to the respondents to

exhume and handover the body of late Amir Latief Magrey killed in an

encounter with the police on 15.11.2021 at Hyderpora area of District

Budgam.

8. The writ petition is resisted by the respondents. It is submitted by the

respondents that the demand of return of the dead body in the instant case is

not a demand for a dead body of an ordinary citizen killed in an action of

security forces but it is a dead body of a terrorist, who has been killed during

encounter. If, for any reason, the return of dead body of terrorist like the son

of the petitioner, is considered, not only it will send wrong message in the

society but it would also lead to greater law and order and security concerns.

It is thus submitted that the SIT, which conducted the investigation in the

instant case, has firmly established the role of late Amir Latief Magrey in the

terrorist related activities and conspiracies. Thus in terms of previous practice

and procedure and also to avoid adverse effect upon law and order situation,

the respondents shifted the dead body of the son of the petitioner and three

others and buried at Wadder Payeen graveyard with all religious obligations

WP(C ) No. 11/2022

performed by Auqaf Committee in the presence of Executive Magistrate

Zechaldara. It is thus urged by the respondents that though they do not deny

that right to life with human dignity extends even beyond death, yet such

right does not come without restrictions. It is thus contended that right of the

petitioner to have the dead body of his son to accord decent burial at his

native graveyard must yield to larger public interest and the public interest

demands that the dead body of the deceased son of the petitioner, which has

been laid to rest at Wadder payeen Graveyard, is not exhumed and handed

over to the petitioner at this stage, for doing so may incite violence and create

law and order problem. The respondents have shared certain documents with

this Court in a sealed cover, perusal whereof indicates that all the four dead

bodies of the persons killed in the encounter were buried on 15.11.2021 at

Wadder Payeen graveyard with all religious obligations performed through

Auqaf Committee of the area in presence of the Executive Magistrate

Zechaldara. It further comes out from the documents submitted in a sealed

cover that the bodies of two, namely, Mohd Altaf Bhat and Dr. Mudasir Gul

were exhumed after two days on the directions of District Magistrate

Kupwara and handed over to their next of kin for performing burial and last

rites in their own way.

9. From the reply of the respondents as also from the documents

submitted in sealed cover it is not coming forth as to why the request of the

petitioner for return of body of his son Amir Latief Magrey was not conceded

and his body exhumed along with Mohd Altaf Bhat and Dr. Mudasir Gul.

10. Having heard learned counsel for the parties and perused the record, it

is necessary to advert briefly to the legal position with regard to right of the

WP(C ) No. 11/2022

deceased person to have his body cremated or buried according to the

religious belief that he professed during his life time.

11. The issue has been dealt with by the Madras High Court in S. Sethu

Raja v. The Chief Secretary, Government of Tamil Nadu and ors, WP

(MD) No. 3888/2007 decided on 28.08.2007. Relying upon the judgments of

Hon‟ble the Supreme Court and having regard to the right to life and liberty

enshrined in Article 21 of the Constitution of India, the Bench of Madras

High Court in paragraph nos. 18 and 19 of the judgment held thus:-

18.The fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution has been given an expanded meaning by Judicial pronouncements. The right to life has been held to include the right to live with human dignity. By our tradition and culture, the same human dignity (if not more), with which a living human being is expected to be treated, should also be extended to a person who is dead. The right to accord a decent burial or cremation to the dead body of a person, should be taken to be part of the right to such human dignity. As a matter of fact, the Supreme Court held in Ram Sharan Autyanuprasi Vs. Union of India (AIR 1989 Supreme Court 549) that the right to life enshrined in Article 21 of the Constitution would include all that gives meaning to a man‟s life namely, his tradition, culture, heritage and protection of that heritage in its full measure. The relevant portion of the judgment of the Supreme Court in para 13 of the said judgment reads as follows:

"13........It is true that life in its expanded horizons today includes all that give meaning to a man's life including his tradition, culture and heritage and protection of that heritage in its full measure would certainly come within the encompass of an expanded concept of Art.21 of the Constitution."

19.That the right to human dignity is not restricted to a living human being but available even after death, appears to have been recognised by the Apex Court, first in a public interest litigation filed by an Advocate in 1995. An Advocate by name Pandit Parmanand Katara filed a writ petition under Article 32 of the Constitution in public interest challenging the method of execution of death sentence by hanging under the Punjab Jail Manual as inhuman and violative of Article 21 of the Constitution. He also assailed para 873 of the Jail Manual which required the body of a condemned convict to remain suspended for a period of half an hour, (after hanging) as offending the right to dignity. Though the Supreme Court rejected the challenge to the method of execution of death sentence by hanging, the contention of the petitioner in the said case regarding para 873 of the Jail Manual was upheld. While doing so, the Supreme Court held in the said case namely, Pt.Parmanand Katara Vs. Union of India (1995 (3) SCC

248), as follows:

"We agree with the petitioner that right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death."

WP(C ) No. 11/2022

12. Close on heels is another judgment of High Court of Madras in the

case of Anandhi Simon v. The State of Tamil Nadu and ors, (2021) 3

MLJ 479 wherein the Madras High Court, while dealing with right of a

person who had died on account of COVID-19 infection to have decent

burial, observed in paragraph nos. 16 and 17 as under:-

"16. The protection of life and personal liberty which is guaranteed under Article 21 of the Constitution of India has been interpreted by the Hon'ble Supreme Court in many cases. There are lot of rights which are included in Article 21 such as right to privacy, right against solitary confinement, right to legal aid, right to speedy trial etc. The Hon'ble Supreme Court in many cases has also observed and interpreted that right to have a decent burial is also included in Article 21 of the Constitution of India. The right to human dignity is not restricted to living human being but is available even after the death also. This view was recognized by the Apex Court for the first time in a Public Interest Litigation filed by an Advocate in the case of Pt.Parmanand Katara vs. Union of India reported in 1995 (3) SCC 248. Later in many cases, the Court held that the right to human dignity is also a right under Article 21 of the Constitution of India.

17. In Ashray Adhikar Abhiyan vs. Union of India reported in 2002 (2) SCC 227, the Hon'ble Supreme Court held that it is the obligation of the State to give a decent burial to a deceased person as per their Religious beliefs. The Madras High Court in the case of S.Sethuraja vs. Chief Secretary (W.P.MD.No.3885 of 2007) delivered on 28.10.2007 has also held that in our tradition and culture, the same human dignity (if not more) with which a living human being is expected to be treated is also extended to a person who is dead."

13. Reliance was placed by Madras High Court on the judgment of

Hon‟ble the Supreme Court in Ashray Adhikar Abhiyan vs. Union of

India, 2002 (2) SCC 227.

14. From the legal position as adumbrated in the aforesaid two judgments,

which are based upon the Supreme Court judgments on the point, following

principles can be culled out:-

(i) That right to life as guaranteed by Article 21 of the

Constitution of India includes right to live with human

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dignity and decency and would extend to treat his dead

body with respect.

(ii) That right to decent burial to the dead body as per the

religious obligations and religious belief that the deceased

professed during his life time, is concomitant of right to

live with dignity, which right, as is held by Supreme

Court in the case of Ramsharan Autyanuprasi & Anr

vs Union Of India & Ors, AIR 1989 SC 459, extends to

person after his death in the limited sense of treating the

dead body with dignity and respect.

(iii) That the right guaranteed by Article 21 of the Constitution

is subject to deprivation in accordance with procedure

established by law. And, as held by Apex Court in

Maneka Gandhi v. Union of India ( 1978) 1 SCC 248,

such procedure must be „right, just and fair‟ and not

„arbitrary, fanciful and oppressive‟.

15. The right of the next of kin of the deceased to have their dear one

cremated or buried as per the religious obligations and religious belief that

the dead person professed during his life time, is part and parcel of right to

life guaranteed under Article 21 of the Constitution of India. The parents and

close relations of the deceased are well within their right to demand the dead

body of their dear one to be cremated or buried as per their traditions,

religious obligations and religious belief. This right would also include the

choice of the relatives to have the dead body cremated or buried at his native

place. It is not uncommon that the graves of the dead are maintained by their

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relatives and are visited by their relations and close friends to pay respect and

homage on certain occasions.

16. Without dilating much on the issue, it can be said to be well settled that

right to life and liberty guaranteed to a citizen by Article 21 of the

Constitution of India includes right of the citizen to live with human dignity

and this right to live with human dignity even extends after death though in a

limited extent. Viewed thus, the right of the petitioner to claim the dead body

of his son for performing last rites in his own way and in accordance with

local traditions, religious obligations and religious faith, which the deceased

professed during his life time, cannot be disputed. But the question that needs

to be addressed in the context of present controversy is whether the State can

deny this right in the name of preventing law and order situation going out of

hand.

17. It is vehemently contended by the respondents that the decision not to

hand over the body of the deceased to the petitioner for performing his last

rites, was taken in the larger public interest and to prevent the situation of law

and order going out of hand. It is submitted that respondents have witnessed

such situations in the past and, therefore, have decided not to handover the

dead bodies of the terrorists killed in encounters to their next of kin for

cremation or burial to prevent the law and order situation getting worsened.

The respondents, however, have not come clear as to why the dead bodies of

two of the four killed in the encounter, namely, Altaf Ahmad Bhat and Dr.

Mudasir Gul were exhumed and handed over to their relatives for their last

rites in the graveyards of their choice and why the similar right claimed by

the petitioner was denied. The respondents have tried to draw distinction by

submitting that as per the investigation conducted by the SIT, the deceased

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son of the petitioner was a confirmed terrorist whereas the other two killed,

namely, Altaf Ahmad Bhat and Dr. Mudasir Gul were only associates of the

terrorists. I do not find any logic or sense in distinction so made by the

respondents. It transpires that due to public pressure and demand by the

relatives of the two deceased namely, Altaf Ahmad Bhat and Dr. Mudasir

Gul, the respondents relented and permitted their dead bodies to be exhumed

and handed over to their relatives. Since the petitioner was a resident of Gool,

a remote village in Jammu Province and did not much say in the Valley and,

therefore, his request was arbitrarily turned down. The action of the

respondents is not traceable to any procedure established by law which is

just, fair and equitable. At least none was brought to the notice of this Court.

The decision of the respondents not to allow the petitioner to take away dead

body of his son to his native village for last rites was per-se arbitrary and falls

foul of Article 14 of the Constitution of India.

18. Much has been said by the respondents with regard to the status of the

body lying buried since 15.11.2021. While it cannot be disputed that the body

of Amir Latief Magrey buried on 15.11.2021 in Wadder Payeen Graveyard

may have putrefied by now but that alone cannot be a reason not to handover

the remains of the dead body to the petitioner who is clamoring at the top of

his voice to get even the remains of the dead body of his son so that he could

bury him in his native graveyard in the presence of relatives and after

following all religious obligations. The apprehension of law and order getting

vitiated at this point of time also appears to be illusory. When the

respondents could maintain the law and order situation when the dead bodies

of two, namely, Altaf Ahmad Bhat and Dr. Mudasir Gul were exhumed and

handed over to their relatives for last rites on 18.11.2021, it is not difficult for

WP(C ) No. 11/2022

the respondents to make necessary arrangements for exhumation of the dead

body of Amir Latief Magrey, the son of the petitioner and transport the same

in proper escort to Village Thatharka Seripora Tehsil Gool District Ramban.

The respondents can make appropriate arrangements to ensure that law and

order situation does not get vitiated in any manner. The petitioner, as is

fervently contended by his counsel, is even ready to undertake that he will

abide by all the terms and conditions that may be imposed by the respondents

with regard to exhumation, transportation and according of burial to the dead

body.

19. For the foregoing reasons, I am inclined to allow this petition of the

father of the deceased Amir Latief Magrey and direct the respondents to

make arrangements for exhumation of the body/remains of the deceased

Amir Latief Magrey from the Wadder Payeen graveyard in presence of the

petitioner. The respondents shall also make appropriate arrangement for

transportation of the dead body to the village of the petitioner for according

burial in his native graveyard in accordance with the traditions, religious

obligations and religious faith which the deceased professed during his life

time provided it is in deliverable state. The respondents are free to impose

any reasonable terms and conditions in respect of exhumation, transportation

and burial of the dead body of Amir Latief Magrey, the son of the petitioner.

Since the dead body of the deceased must be in advance stage of putrefaction,

as such, it would be desirable that the respondents act with promptitude and

do not waste any further time. However, if the body is highly putrefied and is

not in deliverable state or is likely to pose risk to public health and hygiene,

the petitioner and his close relatives shall be allowed to perform last rites as

per their tradition and religious belief in the Wadder Payeen graveyard itself.

WP(C ) No. 11/2022

In that situation, the State shall pay to the petitioner a compensation of Rs. 5

lakhs for deprivation of his right to have the dead body of his son and give

him decent burial as per family traditions, religious obligations and faith

which the deceased professed when he was alive.

(SANJEEV KUMAR) JUDGE SRINAGAR:

27.05.2022 Anil Raina, Addl. Registrar/Secy

Whether order is speaking: Yes Whether order is reportable: Yes