Facts of the Case
On 15.11.2021, there was an encounter between the militants and police at the Hyderpora area of Budgam in Kashmir. Four militants were shot dead including the son of the appellant herein. In connection with the said incident, a First Information Report No. 193/2021 was registered at the Saddar Police Station for the offences punishable under Sections 307/120B IPC, 7/27 of the Arms Act and 16, 18, 20 resply of the ULA (P) Act.
During the course of the investigation, the Investigating Officer recovered four bullet ridden unidentified dead bodies at the site of the encounter. The dead bodies were shifted to the Police Hospital at Srinagar for the medicolegal formalities.
After conducting the postmortem etc., the dead bodies were identified as that of a foreign terrorist viz. Bilal Bhai @ Hyder @ Saqlain R/O Pakistan, Aamir Latief Magrey S/O Mohammad Latief 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 the Handwara Zachaldara for burial.
The material on record further reveals that the bodies of the two out of the four persons killed in the encounter were later exhumed and handed over to their relatives for performing their last rites at the place of their choice. The bodies of the other two persons killed in the encounter i.e. Bilal Bhai @ Hyder and the son of the appellant herein buried through the Auqaf Committee, Wadder Payeen were not disinterred and handed over to their respective family members.
The deceased, namely, Bilal Bhai, a resident of Pakistan is concerned, nobody claimed his body nor was there any demand for handing over of the dead body from any quarter.
However, it is the case of the appellant herein that so far as the dead body of his son Amir is concerned, he had approached various authorities with a request to hand over the body but none listened to him and ultimately the body of his son (deceased) was buried at the Wadder Payeen Graveyard.
It is his case that he was informed by the Police Station at Gool on 16.11.2021 that his son Amir had been killed in an encounter in Kashmir and that he should proceed to Kashmir to identify the body. On 16.11.2021, the appellant along with his family members reached the Police Station at Saddar, where he was told that his son Amir Magrey was a militant and was killed along with three other associates at the Hyderpora and the dead body of Amir had been buried.
In such circumstances referred to above, the appellant herein preferred the Writ Petition (C) No. 11 of 2022 in the High Court. A learned Single Judge of the High Court adjudicated the writ application and allowed the same directing the respondents herein to make necessary arrangements for the disinterment of the body/remains of the deceased Amir Magrey from the Wadder Payeen Graveyard in the presence of the appellant herein.
The Union Territory of Jammu & Kashmir and others being dissatisfied and aggrieved with the aforesaid order passed by the learned Single Judge of the High Court challenged the same by filing the Letters Patent Appeal No. 99 of 2022. The Appeal Court did not approve the decision of the learned Single Judge to direct the respondents herein to exhume the body of the deceased and thereby permit the family members to shift and bury at their native graveyard in accordance with the religious practice.
The appellant (father of the deceased) being dissatisfied with the order passed by the High Court, filed an appeal invoking Article 136 of the Constitution in the Supreme Court.
Decision
The Supreme Court dismissed the Appeal. The Supreme Court has suggested that the Central Government should consider enacting a suitable law for excavation of dead bodies.
A bench of Justices Surya Kant and J B Pardiwala said, “The right to dignity and fair treatment under Article 21 of the Constitution is available not only to a living person but also to his dead body after his death.” His family members also have the right to perform the last rites according to religious traditions.
Dismissing the plea of Mohammad Latif Magrey, seeking handing over of the body of his son, who was killed by security forces in the Haiderpura encounter in Jammu and Kashmir, the bench said that India has no law relating to excavation of dead bodies except Section 176(3) of CrP.C.
The court said that very few countries have laws regarding exhumation of dead bodies.
After a dead body is buried, it is considered to be in the custody of the law. Therefore, excavation of dead bodies is not a matter of right. Dissecting or removing a decomposed body is subject to the control and direction of the Court. While the sanctity of the grave must be maintained, based on public policy, the law does not support exhumation.
Case Details
| Diary Number | 21908-2022 | Judgment |
| Case Number | C.A. No.-006544-006544 – 2022 | 12-09-2022 (English) |
| Petitioner Name | MOHAMMAD LATIEF MAGREY | |
| Respondent Name | THE UNION TERRITORY OF JAMMU AND KASHMIR | |
| Petitioner’s Advocate | NUPUR KUMAR | |
| Respondent’s Advocate | TARUNA ARDHENDUMAULI PRASAD | |
| Bench | HON’BLE MR. JUSTICE SURYA KANT, HON’BLE MR. JUSTICE J.B. PARDIWALA | |
| Judgment By | HON’BLE MR. JUSTICE J.B. PARDIWALA |
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