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Hyderpora Encounter: HC reserves judgement in man’s plea seeking exhumation of son’s body

Post by on Thursday, June 30, 2022

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Srinagar, June 29: The High Court of J&K and Ladakh Wednesday reserved the judgment in the case filed by the father of slain man who was among the four persons killed in Hyderpora encounter in November last year.
The hearing in the case was completed on Wednesday after the government had challenged  the single-bench  verdict allowing exhumation of the body of Amir Latief Magrey and had asked the government to make appropriate arrangements for transportation of the body to his native village of Thatharka Seripora in Tehsil Gool area of Ramban district with “promptitude and without wasting any further time.
Amir’s father, Mohammad Latief Magrey, had approached the court seeking directions to government for exhumation of his son’s body.
The Supreme Court Monday had asked the Jammu and Kashmir High Court to consider either on Tuesday or within a week the plea of Mohammad Latief who was seeking a direction to exhume the body of his son and to permit the family to conduct last religious rites at the same graveyard.
A division bench of High Court, Chief Justice Pankaj Mithal and Justice Javed Iqbal Wani completed hearings on the appeal filed by J&K government through Advocate General, DC Raina.
On May 27, allowing a plea of Mohammad Latief Magrey, father of the deceased, the single-judge bench and had 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.
Amir’s father, Muhammad Latief Magrey through Advocate Deepika Rajawat had approached the court seeking return of his son’s body for “decent burial”.
The single judge bench had ordered the exhumation of Amir's body from the Wadder Payeen graveyard in north Kashmir’s Kupwara district, observing that the "State cannot deny constitutional right in the name of preventing law and order situation getting out of hand”.
If the body was highly petrified, the court had said that in that situation the State shall pay to Amir’s father 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.” 
However, the division bench stayed the exhumation of the body of Amir Magrey after the government challenged the verdict.
The Advocate General representing the government submitted that the single judge had “erred while recording that the body of Amir was denied just because no public pressure was built for exhumation of his body and that he was being discriminated against just because he belonged to a far flung area.”
He argued that the body of the deceased was not handed back solely because of the apprehension of law and order problems that may arise.
“As per the investigation in the matter, the locus of the son of the respondent-petitioner, Mohammad Latief Magrey, is completely different from the ones whose bodies were earlier exhumed and handed over to their respective families,” he said.
The AG submitted that the relief granted by the Single Judge could not have been granted in terms of the Medical Science Analysis of the dead body which “envisages that the dead body gets putrefied only after a period of one month.”
“The Judgment is self-contradictory inasmuch as the Single Judge, on the one hand, has referred to the putrefaction of the dead body in advanced stage and directed the government to act with promptitude without wasting any further time, but, at the same time, has taken a contrary view,” the AG argued.
On the other hand, Advocate Rajawat submitted that the family demands mortal remains which she said is the constitutional right as rightly held by the Single judge of the court.
She submitted that the right to decent burial of the dead body as per the religious belief is a right guaranteed by the Constitution as held by the Supreme Court in the case titled ‘Ramsharan Autyanuprasi & Anr. V. Union of India & Ors.'
“I do not want Rs five lakh but I want mortal remains. It is my fundamental right as enshrined in the constitution,” she said.
She argued Amir’s body was not exhumed as was the case with two others, Altaf Ahmad Bhat and Dr Mudasir Gul, who were also killed in Hyderpora encounter, “because his family is poor from a remote area.”
After completing the arguments in the matter, the division bench today reserved the judgment in the plea. 

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