Hyderpora Encounter | Exhume Body Of Amir Magrey, Pay ₹5 Lakh To Father If Body Not In State Of Delivery: Jammu & Kashmir High Court

The Jammu and Kashmir High Court recently directed the Central government authorities to exhume the body of Amir Magrey, killed in the Hyderpora encounter last year, and pay 5 lakhs to his father if the body is highly putrefied and not in a state of delivery.

Justice Sanjeev Kumar directed the respondents to 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. 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."

Court was hearing a petition filed by Mohammad Latief Magrey the father of Mohd Amir Magrey seeking directions to the Central Government to exhume his son's body to transport it to his village for burial in his native graveyard in accordance with the religious obligations.

Mohd Amir Magrey who was amongst four persons who were killed in an encounter between the Police and Militants that took place on 15 November, 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 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 an FIR under Sections 307/120-B IPC, 7/27 Arms Act, 16, 18, 20 ULA(P) Act and the investigation entrusted to SDPO Saddar Srinagar.

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.

State has contended that they have found sufficient evidence with regard to the active involvement of the son of the petitioner, Amir Latief Magrey in terrorist activities.

The State had argued in court that the decision of not handing over the body of the deceased has been taken in larger public interest and to prevent the situation of law and order going out of hand. It was 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.

Although the State did not clarify 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 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.

Court said that it did 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."

Court said that the action of the respondents is not traceable to any procedure established by law which is just, fair and equitable.

Court also said that 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.  

Court said the right to life as guaranteed by Article 21 extends to treat the dead body of a deceased person with respect.

"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."

In view of the above observations the plea was disposed of.

Also Read: Right To Get Cremated As Per Religious Obligations Guaranteed Under Article 21: J&K&L High Court

Case Title : Mohammad Latief Magrey v Union of India and ors

Citation: 2022 LiveLaw (JKL) 36