'Cannot Examine Disputed Facts' : J&K HC Refuses To Entertain Plea Against Alleged House Arrest [Read Order]

The Jammu and Kashmir High Court on Tuesday refused to entertain a habeas corpus petition filed on behalf of three persons, after the police stated that they were not under house arrest.

Justice Ali Mohammed Margey said that the disputed question of house arrest cannot be examined in a writ proceeding under Article 226 of the Constitution.

The Court also said that the news paper reports about the house arrest cannot be treated as 'authentic evidence'.

"In its extra ordinary writ jurisdiction under Article 226 of the Constitution of India, a Writ Court is neither to hold an enquiry into the allegations made in a petition, nor take oral evidence. In writ proceedings, a fact is to be supported and proved by authentic documentary evidence. Press cuttings cannot be relied upon as authentic documentary evidence. Further, a Writ Court cannot hold enquiry into disputed facts. Once facts are disputed, the writ petition is rendered not maintainable. In such circumstances, the only option available to a Writ Court is to dismiss the writ petition, leaving the party concerned free to take recourse to appropriate remedy", ordered the Court.

The Court was considering the pleas filed on behalf of Muzafar Ahmad Shah, Begum Khalida Shah and Dr. Mustaffa Kamal, which sought to direct the respondents to lift all kinds of restraints and curbs and remove security forces from the residential houses of the petitioners, and set them free from house arrest/detention. 

As per the petition, they were under house arrest since August 5, the day when the Centre abrogated the special status of J&K.

In response to the petition, the government produced a letter by the Senior Superintendent of Police, Srinagar, which stated that the petitioners were not put under house arrest and that no curbs were placed on their liberty.

Refuting the police stand, the petitioners filed affidavits in the Court asserting that they were under house arrest. When they attempted to move out of their house on October 24, they were stopped by the police, stated the petitioners. This incident was witnessed by two sitting MPs Mr. Justice (Retd.) Hasnain Masoodi and Mr. Mohammad Akbar Lone, they added.

However, the Court chose not to take into account the affidavits submitted by the petitioners. Rather, the Court adopted a technical stand that disputed facts cannot be examined under writ jurisdiction.

"In the instant case, the respondents have clearly disputed the statement made in the writ petition about the house arrest of the alleged detainees. The petitioner asserts that he  can prove the arrest by evidence. This Court will not debar him from doing so, but that can be done only before the proper forum and in appropriate proceedings", held the Court. 

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