J&K HC allows the father and family of the deceased to perform rituals at the grave

-Report by Rhea Mistry

On 27th January 2021, a judgment was passed in a writ petition case Mohammad Latief Magrey v. Union of India and others. In that case, Mr. Mohammad Latief Magrey’s son was encountered in the Hyderpora Encounter. An appeal was filed by the Union of India and others against the judgment.

The respondent i.e., Mr. Mohammad Latief Magrey had asked for his deceased son’s body in the initial petition. He had asked for the body to complete the burial rituals after the bodies of two other deceased who were encountered along with his son were exhumed and returned to their families. Challenging the decision of the judgment, the appellants’ had filed an appeal to the Jammu & Kashmir High Court.

The learned counsel of the Union of J&K put forward that the body of the deceased should not be returned to the family as he was a suspect terrorist and was killed in an encounter while he was attacking the area in Hyderpora.

The respondent herein presented that his son, Amit Magray, had been killed in a police encounter in Hyderpora, Kashmir on 15th November 2021. The dead body of the deceased son was not given to the family. This led to infringement of Rights to the protection of life and personal liberty as provided in Article 21 of the Constitution of India. The article gives the right to a decent burial of a dead body.

Mr. Mohammad Latief Magrey asserted that he and his family had been awarded for bravery in keeping the militants away from the area. His deceased son was also one of those who would fight against the militants. After having some financial crisis and not being able to study further, the deceased, Amit Magray, to support his family moved to his
sister’s place in Kashmir and started to work for Dr. Mudasir. Amit was working for Dr. Mudasir till 14th November 2021 and talked regularly with the family till then. After that, the family did not hear from him and had no idea of his whereabouts. They directly heard from the police station on 16th November 2021 that their son has been killed in a police encounter.

After reaching the police station, the father and family of the deceased were informed that their son was a militant and was killed with two others by the police force in an encounter in Kashmir.

The police Officials had buried the body of Amit Magray with all the rites performed and refused to exhume the body. They also stated the reasons for the bodies of the other two associates being returned was because it was revealed that one, Dr. Mudasir was killed by another foreign militant, and the other Altaf Bhat was killed during a cross-firing in the encounter. In the appeal by the Union of J&K, they contented that exhumation of the body is not possible as the body starts decomposing after its burial. The appellants did not take into consideration the family background and had fought against militants.

Following the parties’ pleas, the court ordered the Union of J&K to exhume and return the body of the deceased Amit Magray to his family in a speedy process. They were also ordered to pay a compensation of Rs. 5 Lakhs to the family of the deceased.

The learned counsel of the appellant asserted that the writ court failed to view the case from all the relevant angles and requested to dismiss the petition. The respondent had given up the request for the exhumation of the body so the court allowed them to perform Fatiha Khawani at Wadder Payeen Graveyard after midnight to avoid large crowds.

After taking into account and examining the situations and facts, it was held that the family would not be returned the body of the deceased but be permitted to perform their religious burial rites at the grave where the body is buried with a maximum of 10 people. The compensation of Rs.5 Lakhs payable to the respondents stands upright and this decision should not form a precedent for future similar cases.

As of the aforesaid, the appeal has been dismissed.

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