Division Bench Of J&K And Ladakh HC Stays Single Bench's Order For Exhumation Of Body Of Terrorist

A Division Bench of the Jammu & Kashmir and Ladakh High Court has stayed the May 27 Judgment of a Single Bench for the exhumation of the body of a terrorist killed in the November 2021 encounter with the Army in the Hyderpora area.

The Bench of Justice Wasim Sadiq Nargal and Justice Ali Mohammad Magrey said that it feels that the matter requires a final decision from the Court after hearing all parties concerned. 

Advocate General D. C. Raina for the Appellant administration submitted that the Single Judge should not have granted the relief since a dead body gets putrefied within a period of one month. He also submitted that the relief granted is beyond the pleadings on record.

Advocate Deepika Singh Rajawat appeared for the original Petitioner on caveat and opposed the appeal.

The Bench stayed the operation of the impugned judgment till June, 28, when the matter will be listed for consideration. 

On May 27, Justice Sanjeev Kumar had allowed the Petition filed by the father of one Aamir Latief Magrey who was killed along with three others, including one Pakistani national, in the encounter with the Army. The Judge had directed the government to make arrangements for exhumation of the body and its transportation to the village of the Petitioner for burial in accordance with the religious obligations and faith which the deceased professed during his lifetime.

The Court had also directed that if the body is highly putrefied and is not in a deliverable state or is likely to pose risk to public health and hygiene, the Petitioner and his close relatives be allowed to perform last rites as per their tradition and religious belief in the graveyard where the body is already buried.

In addition, the Single Bench had directed that "the State shall 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 Respondents had submitted before the Single Judge that as per the investigation conducted by the SIT, the deceased son of the Petitioner was confirmed to be a terrorist. They submitted that the bodies of two others Indians who were killed were permitted to be exhumed and handed over to relatives because they were "only associates of the terrorists".

"I do not find any logic or sense in distinction so made by the respondents. It transpires that due to public pressure and demand by the relatives of the two deceased namely, 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 much say in the Valley and, therefore, his request was arbitrarily turned down", the Single Bench had held. 

Click here to read/download Order of Division Bench

Click here to read/download Judgment of Single Bench