Hyderpora Encounter Case | J&K and Ladakh HC allows the family of deceased Amir Magrey to perform Fatiha Khawani; upholds compensation awarded by the Single Judge Bench

Jammu & Kashmir and Ladakh High Court

Jammu and Kashmir and Ladakh High Court: While deciding the instant appeal directed against the decision of the Single Judge Bench in Mohd. Latief Magrey v. Union of India, 2022 SCC OnLine J&K 433; the Division Bench of Pankaj Mithal, CJ., and Javed Iqbal Wani, J., directed the appellants to allow Mohd. Lateif Magery and his family to perform Fatiha Khawani (religious rituals/prayers after burial) of deceased Mohd. Amir Magrey at the Wadder Payeen graveyard, subject to taking into account the required security measures and COVID-19 guidelines. The Court also upheld the compensation of Rs. 5 Lakhs awarded to the respondents in the afore-stated case.

Facts of the case: The respondent’s son named Mohd Amir Magrey, 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 Budgam, Kashmir. Next day, the respondent received a call from Gool Police Station that his son got killed in an encounter. The respondent upon reaching Saddar, Police Station, Srinagar, was told that his son, was in fact a militant and had got killed along with his two other associates and had been buried by appellants at the Wadder Payeen graveyard. The respondent even met the Lieutenant Governor on 07-12-2021 seeking return of the body of his son, but the meeting yielded no results.

Legal Trajectory: In Mohd. Latief Magrey v. Union of India, 2022 SCC OnLine J&K 433, dated 27-05-2022, the Single Judge Bench of this Court directed the Union Territory to make arrangements for exhumation of the body/remains of the deceased Amir Latief Magrey from the Wadder Payeen graveyard in presence of Mohd. Lateif. The State was also directed to pay to the father 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.

The decision was appealed in UT of J&K v. Mohd. Latief Magrey, LPA No. 99/2022 thereby which the operation of impugned judgement was stayed by way of an interim relief by the Division Bench. Next date of hearing was set for 28-06-2022.

The stay was challenged by Mohd. Latief in the Supreme Court. Lateif submitted before the Court that he wants to perform the last rites of his deceased son, as per their family’s religious practices at the Wadder Payeen Graveyard. He also sought the alternative relief of payment of compensation of Rs. 5 lakhs as granted by the Single Judge in his decision dated 27-05-2022. The Division Bench of Surya Kant and J.B. Pardiwala, JJ., in Mohd. Lateif Margey v. UT of J&K, Special Leave to Appeal (C) no. 10760/2022, observed that the matter is already slated for hearing in the High Court. The Bench directed the High Court to consider the alternative reliefs sought by Mohd. Lateif within 1 week.

Contentions

  • The respondent stated that the dead body of his deceased son was not handed over to him by appellants for burial as per religious rites and practices, thus, resulting in infringement of rights guaranteed under Art. 21 of the Constitution, as it extends to the right to have a decent burial as per religious ceremonies. The respondent submitted that that right to live with human dignity extends even beyond death and the said dignity has to be given to the dead by providing a proper funeral/burial.
  • The respondent submitted before the Court that his request to hand over the dead body of his son to provide a decent burial was rejected by the appellants citing the reason that the deceased was a militant. The respondent however stated that dead bodies of two other persons, killed in the encounter returned back to their families following relentless protests.
  • The respondent also contended that he has been instrumental in fighting and curbing the militancy in his native place Gool Sangaldan, Ramban, along with Indian Army and in this regard, cited an incident, which took place on 06-08-2005, when he and his wife caught hold of a LeT militant, who had barged into their house and opened indiscriminate firing. It was also submitted that the respondent had been conferred with the State Award for Bravery for the afore-stated incident by the then Government of Jammu and Kashmir in the year 2012. The respondent was also well appreciated by the Indian Army and for the services rendered by him in eradicating the militancy in Gool Sangaldan area.

Per-contra, the appellants argued that-

  • The respondent’s demand to return the body of his deceased son is not fair, because it is not the dead body of an ordinary citizen but of a terrorist having got killed in an encounter with security forces. Return of the dead body would lead to law, order and security problems.
  • The deceased was found to be a terrorist indulging in militant activities by the authorised investigating agency. In terms of previous practice and procedure to avoid larger ramifications and adverse impact upon law-and-order situation, the dead body of deceased was shifted and was buried in accordance with all religious obligations at Wadder Payeen Graveyard, performed in presence of Executive Magistrate, Zachaldara. A proper procedure was followed by appellants while dealing with the dead body of deceased in the matter of his burial.
  • It was submitted that after taking adequate security measures, the dead bodies of other two persons killed in the encounter, were returned to their families, as they were not found to be terrorists.
  • It was submitted that, Mohd. Latief and his family can be allowed to perform Fatiha Khawani (prayers after burial) at the grave of the deceased subject to security measures as may be required to be put in place.

Observations: Perusing the ‘peculiar’ facts of the case and contentions of the parties, the Court observed that, Mohd. Lateif has given up the first relief granted by the Single Judge vis-a-vis exhumation of the remains of his son. The Court rejected the insistence by the counsels of Mohd. Latief regarding exhumation of the remains stating that the last rites of deceased have already been performed while burying him at the Wadder Payeen Graveyard.

The Court also rejected the prayer of the respondent’s counsel that the family members be allowed to see the face of the deceased by opening the grave, on the ground of the advanced stage of decay the body will be in; and also taking into account that the respondent has given up the prayer of exhumation of the dead body.

The Court pointed out that the respondents have been subjected to ‘emotional and sentimental melancholy’ as the authorities deprived them of the right to perform last rites and rituals of deceased admittedly without there being any policy/guideline, which cannot be endorsed by law. The Court also stated that there was no way that the appellants could have overlooked the contribution made by the respondents’ family in fighting terrorism; therefore, the decision to award compensation by the Single Judge was correct.

Decision: Allowing the respondents to perform Fatiha Khawani, the Court directed the appellants to fix a date for the same in consultation with the respondents.

Regarding the direction to pay compensation of Rs. 5 Lakhs, the Court clarified that said compensation shall not form a precedence for future in view of the fact that the same was awarded in relation to the peculiar facts and circumstances of the instant case.

[Union Territory of J&K v. Mohd. 2022 SCC OnLine J&K 516, decided on 01-07-2022]


Advocates who appeared in this case :

D. C. Raina, Advocate General with Asifa Padroo, AAG and Sajad Ashraf GA, Advocates, for the Appellants;

Deepika Singh Rajawat, Advocate with Zarin Ali and Yasmeen Wani, Advocates and T. M. Shamsi, ASGI, Advocates, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief

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