Hyderpora encounter: HC directs govt to exhume civilian’s body
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Hyderpora encounter: HC directs govt to exhume civilian’s body

Post by on Saturday, May 28, 2022

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Srinagar, May 27: The High Court of Jammu & Kashmir and Ladakh Friday directed the government to make arrangements for exhumation of the body of the deceased Mohammad Amir Latief Magrey, who was among the four persons who were killed on November 15 last year in Hyderpora encounter, from the Wadder Payeen graveyard in presence of his father.
Allowing a plea of Mohammad Latief Magrey, father of the deceased, the court of Justice Sanjeev Kumar directed the state 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.
 The court directed the government authorities to make appropriate arrangements 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 lifetime provided it is in deliverable state.
Justice Kumar said that 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 an advanced stage of putrefaction, as such, it would be desirable that the respondents act with promptitude and do not waste any further time," the court said.
However, the bench said, if the body is highly putrefied and is not in deliverable state or is likely to pose risk to public health and hygiene, the father of the deceased and his close relatives shall be allowed to perform last rites as per their tradition and religious belief in the Wadder Payeen graveyard itself. 
Pronouncing the judgment, the court observed that the right of the next of kin of the deceased to have their dear one cremated or buried as per the religious obligations and religious belief that the dead person professed during his lifetime, is part and parcel of right to life guaranteed under Article 21 of the Constitution of India.
It recorded that the parents and close relations of the deceased are well within their right to demand the dead body of their dear one to be cremated or buried as per their traditions, religious obligations and religious belief.
"This right would also include the choice of the relatives to have the dead body cremated or buried at his native place," the court said.
The court passed the directions after noting that the government has not come clear as to why the dead bodies of two of the four killed in the encounter, namely, Altaf Ahmad Bhat - the building landlord and Dr. Mudasir Gul with whom Amir was working as an office peon were exhumed and handed over to their relatives for their last rites in the graveyards of their choice and why the similar right claimed by the petitioner was denied.
It pointed out that the respondents have tried to draw distinction by submitting that as per the investigation conducted by the SIT, the deceased son of the petitioner was a confirmed militant whereas the other two killed, Bhat and Gul were only associates of the militant.
"I do not find any logic or sense in the distinction so made by the respondents," Justice Kumar said.
It transpires, the court underscored, that due to public pressure and demand by the relatives of the two deceased, Altaf Ahmad Bhat and Dr. Mudasir Gul, the respondents relented and permitted their dead bodies to be exhumed and handed over to their relatives. 
"Since the petitioner was a resident of Gool, a remote village in Jammu Province and did not have much say in the Valley and, therefore, his request was arbitrarily turned down," it pointed out.
The court said that the action of the respondents is not traceable to any procedure established by law which is just, fair and equitable.
"At least none was brought to the notice of this court," Justice Kumar noted and said, "the decision of the respondents not to allow the petitioner to take away dead body of his son to his native village for last rites was per-se arbitrary and falls foul of Article 14 of the Constitution of India."
The bench further pointed out that the apprehension of law and order getting vitiated at this point of time also appears to be illusory.
Justice Kumar underscored that when the respondents could maintain the law and order situation when the dead bodies of Bhat and Gul were exhumed and handed over to their relatives for last rites on November, 18, 2021, it is not difficult for the respondents to make necessary arrangements for exhumation of the dead body of Amir Magrey, the son of the petitioner and transport the same in proper escort to Village Thatharka Seripora Tehsil Gool District Ramban. 
The court said that the respondents can make appropriate arrangements to ensure that law and order situation does not get vitiated in any manner.
"The petitioner, as is fervently contended by his counsel, is even ready to undertake that he will abide by all the terms and conditions that may be imposed by the respondents with regard to exhumation, transportation and according of burial to the dead body," the court said while disposing of a plea of agonized father.
Earlier, a plea was filed by the petitioner through counsel Deepika Singh Rajawat claiming his right to give decent burial to the dead body of his son, had sought a direction to the respondents to exhume and handover the body of late Amir Magrey.