HC directs UT to pay compensation of Rs 5 lakh to father of militant for deprivation of his right to have dead body

28/05/2022

Jammu, May 27: Justice Sanjeev Kumar of Jammu & Kashmir and Ladakh High Court at Srinagar Wing, directed to pay to the petitioner a 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 which the deceased professed when he was alive.
According to the petitioner that he is father of one Mohd Amir Magrey who 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 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 FIR No. 193/2021 under Sections 307/120-B IPC, 7/27 Arms Act, 16, 18, 20 ULA(P) Act and the investigation entrusted to SDPO Saddar Srinagar. During the course of investigation the Investigating Officer visited the site of encounter and recovered four bullet ridden unidentified dead bodies and the dead bodies were shifted to Police Hospital Srinagar for medico legal formalities. 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. All the four dead bodies were shifted to Handwara Zachaldara for burial.
It is the case of the respondents that the investigation conducted later on by Special Investigation Team (SIT) headed by DIG CKR Srinagar has collected sufficient evidence with regard to the active involvement of the son of the petitioner, Amir Latief Magrey in terrorist activities.
Court observed that it is also not in dispute that the last rites of the son of the petitioner along with three others were performed through Auqaf Committee Wadder Payeen as per religious obligations. It also transpires from material on record that the bodies of the two of the four persons killed in the encounter were later on exhumed and handed over to their relatives for performing their last rites at the place of their choice. It appears that the parents of deceased Altaf Ahmad Bhat and Dr. Mudasir Gul approached the Deputy Commissioner Srinagar for handing over bodies of the deceased for performing their last rites. The District Magistrate Srinagar vide his communication Nos. DMS/JUD/Misc/2840-2844/2021 and DMS/JUD/Misc/2845-2849/2021 dated 18.11.2021 recommended to the District Magistrate Kupwara to consider the request of the family members of the deceased Mohd Altaf Bhat and Dr. Mudasir Gul for handing over the dead bodies. The District Magistrate Kupwara vide his Order No. DCK/Ps/2021/232/9328-38 dated 18.11.2021 directed the Superintendent of Police Handwara to arrange exhumation of the bodies after proper identification and hand over the same to their legal heirs for performing their last rites as prayed by them. In compliance to the direction of the District Magistrate, Kupwara, the bodies of Mohd Altaf Bhat and Dr. Mudasir Gul were exhumed and after proper identification handed over to their legal heirs for performing last rites. The bodies of other two persons killed in the encounter i.e. Bilal Bhai, a foreign terrorist and son of the petitioner, who were buried through Auqaf Committee Wadder Payeen along with Altaf Ahmad Bhat and Dr. Mudasir Gull, were not exhumed and handed over to their legal heirs. With regard to deceased Bilal Bhai, a resident of Pakistan, nobody owned his body nor was there any demand for handing over of the dead body from any quarter. However, with regard to Amir Lateef Magrey, the petitioner claims that he approached all authorities for handing over the body of his deceased son but nobody listened to him and body of his deceased son was, without his presence, buried at Wadder Payeen graveyard.
Justice Sanjeev Kumar after hearing both the sides, allowed the petition and directed the respondents to make arrangements for exhumation of the body/remains of the deceased Amir Latief Magrey from the Wadder Payeen graveyard in presence of the petitioner. The respondents shall also 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.

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