# MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY OF JAMMU AND KASHMIR & ORS

- **Citation:** [2022] 11 S.C.R. 236
- **Court:** Supreme Court of India
- **Decided:** 2022-09-12
- **Case number:** Civil Appeal No. 6544 of 2022
- **Bench:** Surya Kant, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohammad-latief-magrey-v-the-union-territory-of-jammu-and-kashmir-ors-35640
- **Pages:** 37

## Headnote

Constitution of India - Arts. 14, 21, 25, 26 and 136 - Code
of Criminal Procedure, 1973 - s.176(3) - Exhumation of the dead
body - There was an encounter between militants and Police - Four
militants were shot including the son of appellant - FIR was
registered - During the investigation four bullet ridden unidentified
dead bodies were recovered from the site of the encounter - Bodies
of two out of four persons were later exhumed and handed over to
their relatives for performing their last rites - The bodies of the
other two persons (Son of appellant and one other) were buried
through Auqaf Committee and were not disinterred and handed over
to their families - The appellant approached the High Court - Single
judge of the High Court directed the respondents to make necessary
arrangement for the disinterment of the body/remains of the
deceased - The respondent filed LPA and challenged the order
passed by the Single judge - The High Court permitted the appellant
and his family member to perform religious rituals/prayers of the
deceased but declined to grant permission to disinter the body of
the deceased for the purpose of religious rites - The appellant
approached the Supreme Court and submitted that that appellant
has a fundamental right U/Art. 21 to perform last rites of his dead
son in accordance with the rituals - Held: The body was buried
with dignity - After a body has been buried, it is considered to be in
the custody of the law, therefore, disinterment is not a matter of
right - The law does not favour disinterment as sanctity of grave
should be maintained - Court will permit disinterment only if it is
within the interests of justice - The right to have a dignified life U/
Art. 21 is not only available to living person but also to dead -
Almost 9 months have passed post burial which suggest that body
may not be in a deliverable state.
[2022] 11 S.C.R. 236
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Constitution of India - Article 136 - Scope and power of
Supreme Court - Only when exceptional and special circumstances
exist; that substantial and grave injustice has been done and the
case and question presents features of sufficient gravity than only
Court would exercise powers under Article 136 - To be exercised
sparingly and in exceptional cases only.
Dismissing the appeal, the Court
HELD:1. Even the Single judge by order dated 27.05.2022,
had mentioned that the dead body of the deceased must be in
advanced stage of putrefaction. Almost 9 months have passed
post burial which is suggestive that the body may not be in a
deliverable state. It will be too much at this stage to disinter the
body. The dead should not be disturbed and some sanctity should
be attached to the grave. [Para 53][270-A-B]
2. It goes without saying that the right to live a dignified
life as enshrined under Article 21 of the Constitution is not only
available to a living person but also to the "dead". Even a dead
person has the right of treatment to his body with respect and
dignity which he would have deserved had he been alive, subject
to his tradition, culture and religion which he professed. These
rights are not only for the deceased but, his family members also
have a right to perform the last rites in accordance with the
religious traditions. [Para 54][270-B-C]
3. After a body has been buried, it is considered to be in
the custody of the law; therefore, disinterment is not a matter of
right. The disturbance or removal of an interred body is subject
to the control and direction of the court. The law does not favour
disinterment, based on the public policy that the sanctity of the
grave should be maintained. Once buried, a body should not be
disturbed. A court will not ordinarily order or permit a body to be
disinterred unless there is a strong showing of necessity that
disinterment is within the interests of justice. Each case is
individually decided, based on its own particular facts and
circumstances. [Para 56][270-H; 271-A-B]
4. The respondents have stated on oat

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SUPREME COURT REPORTS
[2022] 11 S.C.R.
MOHAMMAD LATIEF MAGREY
v.
THE UNION TERRITORY OF JAMMU AND KASHMIR & ORS.
(Civil Appeal No. 6544 of 2022)
SEPTEMBER 12, 2022
[SURYA KANT AND J. B. PARDIWALA, JJ.]
Constitution of India - Arts. 14, 21, 25, 26 and 136 - Code
of Criminal Procedure, 1973 - s.176(3) - Exhumation of the dead
body - There was an encounter between militants and Police - Four
militants were shot including the son of appellant - FIR was
registered - During the investigation four bullet ridden unidentified
dead bodies were recovered from the site of the encounter - Bodies
of two out of four persons were later exhumed and handed over to
their relatives for performing their last rites - The bodies of the
other two persons (Son of appellant and one other) were buried
through Auqaf Committee and were not disinterred and handed over
to their families - The appellant approached the High Court - Single
judge of the High Court directed the respondents to make necessary
arrangement for the disinterment of the body/remains of the
deceased - The respondent filed LPA and challenged the order
passed by the Single judge - The High Court permitted the appellant
and his family member to perform religious rituals/prayers of the
deceased but declined to grant permission to disinter the body of
the deceased for the purpose of religious rites - The appellant
approached the Supreme Court and submitted that that appellant
has a fundamental right U/Art. 21 to perform last rites of his dead
son in accordance with the rituals - Held: The body was buried
with dignity - After a body has been buried, it is considered to be in
the custody of the law, therefore, disinterment is not a matter of
right - The law does not favour disinterment as sanctity of grave
should be maintained - Court will permit disinterment only if it is
within the interests of justice - The right to have a dignified life U/
Art. 21 is not only available to living person but also to dead -
Almost 9 months have passed post burial which suggest that body
may not be in a deliverable state.
[2022] 11 S.C.R. 236
236
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Constitution of India - Article 136 - Scope and power of
Supreme Court - Only when exceptional and special circumstances
exist; that substantial and grave injustice has been done and the
case and question presents features of sufficient gravity than only
Court would exercise powers under Article 136 - To be exercised
sparingly and in exceptional cases only.
Dismissing the appeal, the Court
HELD:1. Even the Single judge by order dated 27.05.2022,
had mentioned that the dead body of the deceased must be in
advanced stage of putrefaction. Almost 9 months have passed
post burial which is suggestive that the body may not be in a
deliverable state. It will be too much at this stage to disinter the
body. The dead should not be disturbed and some sanctity should
be attached to the grave. [Para 53][270-A-B]
2. It goes without saying that the right to live a dignified
life as enshrined under Article 21 of the Constitution is not only
available to a living person but also to the "dead". Even a dead
person has the right of treatment to his body with respect and
dignity which he would have deserved had he been alive, subject
to his tradition, culture and religion which he professed. These
rights are not only for the deceased but, his family members also
have a right to perform the last rites in accordance with the
religious traditions. [Para 54][270-B-C]
3. After a body has been buried, it is considered to be in
the custody of the law; therefore, disinterment is not a matter of
right. The disturbance or removal of an interred body is subject
to the control and direction of the court. The law does not favour
disinterment, based on the public policy that the sanctity of the
grave should be maintained. Once buried, a body should not be
disturbed. A court will not ordinarily order or permit a body to be
disinterred unless there is a strong showing of necessity that
disinterment is within the interests of justice. Each case is
individually decided, based on its own particular facts and
circumstances. [Para 56][270-H; 271-A-B]
4. The respondents have stated on oath that the body of
the deceased was buried with all honour. The body was first washed
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS.
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SUPREME COURT REPORTS
[2022] 11 S.C.R.
and thereafter wrapped in a fresh white cloth. The prayers were
also performed at the time of the burial. There is nothing to
indicate that the deceased was not given a decent burial as
enshrined under Article 21 of the Constitution. The right to dignity
and fair treatment under Article 21 of the Constitution is not only
available to a living man but also to his body after his death. [Para
57][271-C-D]
Pettigrew v. Pettigrew 56 A. 878 (Pa. 1904); Union
Territory of J & K and Others v. Mohammad Latief
Magrey and Another 2022 SCC OnLine J&K 516;
Mohammad Latief Magrey v. Union of India and Others,
2022 SCC OnLine J&K 433; Pt. Parmanand Katara,
Advocate v. Union of India (1995) 3 SCC 248 S. Sethu
Raja v. The Chief Secretary, The Chief Secretary,
Government of Tamil Nadu and Ors., WP(MD) No.3888
of 2007 decided on 28.08.2007, Ramlila Maidan
Incident In Re, (2012) 5 SCC 1 : [2012] 4 SCR 971;
Jakir Sk. v. The State of West Bengal & Ors., (2017)
SCC OnLine Cal 3354; Vineet Ruia v. Principal
Secretary, Ministry of Health and Family Welfare,
Government of West Bengal, AIR 2020 Cal 308; Ram
Sharan Autyanuprasi v. Union of India AIR 1989 SC
549 : [1988] 3 Suppl. SCR 870; Ashray Adhikar
Abhiyan v. Union of India (2002) 2 SCC 27 : 2002 (1)
JT 41; Pradeep Gandhy v. State of Maharashtra, 2020
SCC OnLine Bom 662.; Mohd. Hamid and Another v.
Badi Masjid Trust and Others (2011) 13 SCC 61 :
[2011] 9 SCR 348; Gulam Abbas and Others v. State of
U.P. and Others (1984) 1 SCC 81 : [1984] 1 SCR 64;
Adi Saiva Sivachariyargal Nala Sangam and Others v.
Government of Tamil Nadu and Another (2016) 2 SCC
725 : [2015] 11 SCR 1110; Anandhi Simon v. State of
Tamil Nadu, Represented by Chief Secretary to
Government and Others (2021) 3 Mad LJ 479; Vikash
Chandra @ Guddu Baba v. The Union of India & Ors.
2008 SCC OnLine Pat 905 : (2008) 2 PLJR 127; Ramji
Singh @ Mujeeb Bhai v. State of U.P. & Ors. (2009) 5
All LJ 376; Kunhayammed v. State of Kerala (2000)
6 SCC 359 : [2000] 1 Suppl. SCR 538; Khoday
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Distilleries Ltd. v. Sri Mahadeshwara Sahakara
Sakkare Karkhane Ltd. (2019) 4 SCC 376 : [2019] 3
SCR 411; Pritam Singh v. State AIR 1950 SC 169 :
[1950] SCR 453, Hem Raj, Son of Devilal Mahajan
of Bijainagar, Condemned Prisoner, at Present
Confined in the Central Jail; Ajmer v. State of Ajmer
AIR 1954 SC 462 : [1954] SCR 1133; P.S.R.
Sadhanantham v. Arunachalam and Another (1980) 3
SCC 141 : [1980] 2 SCR 873 - referred to.
Case Law Reference
[2012] 4 SCR 971
referred to Para 20(3)
[1988] 3 Suppl. SCR 870
referred to Para 20(6)
[2011] 9 SCR 348
referred to Para 32
[1984] 1 SCR 64
referred to Para 33
[2015] 11 SCR 1110
referred to Para 34
[2000] 1 Suppl. SCR 538
referred to Para 46
[2019] 3 SCR 411
referred to Para 46
[1950] SCR 453
referred to Para 47
[1954] SCR 1133
referred to Para 48
[1980] 2 SCR 873
referred to Para 49
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6544
of 2022.
From the Judgment and Orders dated 01.07.2022 of the High
Court of Jammu & Kashmir and Ladakh at Srinagar in LPA No. 99 of
2022.
Anand Grover, Sr. Adv., Ms. Deepika Singh Rajwant, Paras Nath
Singh, Rohin Bhatt, Ms. Nupur Kumar, Advs. for the Appellant.
Ardhendumauli Kumar Prasad, Ms. Shreya Srivastava, Ashish
Madaan, Ms. Ananya Sahu, Aman Singh Bhadoria, Ms. Taruna
Ardhendumauli Prasad, Ms. Neela Kedar Gokhale, Shailesh Madiyal,
Ms. Praveena Gautam, Anuj Srinivas Udupa, Nakul Chengappa K. K.,
Chitransh Sharma, G. S. Makker, Advs. for the Respondents.
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS.
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SUPREME COURT REPORTS
[2022] 11 S.C.R.
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
1. Leave granted.
2. "The dead are to rest where they have been lain unless
reason of substance is brought forward for disturbing their repose."
- Justice Cardozo Yome v. Gorman, 152 N.E. 126, 129 (N.Y.
1926).
3. The leading case on disinterment in the United States is
Pettigrew v. Pettigrew, 56 A. 878 (Pa. 1904) which was decided by the
Supreme Court of Pennsylvania in 1904:
"The presumption is against a change. The imprecation on
the tomb at Stratford, "Curst be he that moves my bones,"
whether it be Shakespeare's own or some reverent friend's,
expresses the universal sentiment of humanity, not only against
profanation, but even disturbance. When a case comes into
court, the chancellor will regard this sentiment, and consider
all the circumstances in that connection."
4. This appeal is at the instance of the original writ applicant (father
of the deceased, whose son, namely, Mohd. Amir Magrey was killed in
an encounter between the police and militants) and is directed against
the judgment and order passed by the High Court of Jammu & Kashmir
and Ladakh at Srinagar in Union Territory of J & K and Others v.
Mohammad Latief Magrey and Another, 2022 SCC OnLine J&K
516 (the Letters Patent Appeal No. 99 of 2022 dated 01.07.2022)
by which the Appeal Court modified the judgment and order passed by
the learned Single Judge of the High Court in Mohammad Latief
Magrey v. Union of India and Others, 2022 SCC OnLine J&K 433
(the Writ Petition (C) No. 11 of 2022 decided on 27.05.2022) & thereby
permitted the appellant herein and his family members (maximum up to
10 persons) to perform the Fatiha Khawani (religious rituals/prayers after
burial) of the deceased at the graveyard while declining to grant permission
to disinter the body of the deceased for the purpose of religious rituals.
Factual Matrix
5. It appears from the materials on record that on 15.11.2021,
there was an encounter between the militants and police at the Hyderpora
area of Budgam in Kashmir. Four militants were shot dead including the
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son of the appellant herein. In connection with the said incident, a First
Information Report No. 193/2021 was registered at the Saddar Police
Station for the offences punishable under Sections 307/120-B IPC, 7/27
of the Arms Act and 16, 18, 20 resply of the ULA (P) Act. During the
course of the investigation, the Investigating Officer recovered four bullet
ridden unidentified dead bodies at the site of the encounter. The dead
bodies were shifted to the Police Hospital at Srinagar for the medico-legal
formalities. After conducting the post-mortem etc., the dead bodies were
identified as that of a foreign terrorist viz. Bilal Bhai @ Hyder @ Saqlain
R/O Pakistan, Aamir Latief Magrey S/O Mohammad Latief 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 the Handwara Zachaldara for burial.
6. The material on record further reveals that the bodies of the
two out of the four persons killed in the encounter were later exhumed
and handed over to their relatives for performing their last rites at the
place of their choice. The bodies of the other two persons killed in the
encounter i.e. Bilal Bhai @ Hyder and the son of the appellant herein
buried through the Auqaf Committee, Wadder Payeen were not disinterred
and handed over to their respective family members.
7. It appears that so far as the deceased, namely, Bilal Bhai, a
resident of Pakistan is concerned, nobody claimed his body nor was
there any demand for handing over of the dead body from any quarter.
However, it is the case of the appellant herein that so far as the dead
body of his son Amir is concerned, he had approached various authorities
with a request to hand over the body but none listened to him and ultimately
the body of his son (deceased) was buried at the Wadder Payeen
Graveyard. It is his case that he was informed by the Police Station at
Gool on 16.11.2021 that his son Amir had been killed in an encounter in
Kashmir and that he should proceed to Kashmir to identify the body. On
16.11.2021, the appellant along with his family members reached the
Police Station at Saddar, where he was told that his son Amir Magrey
was a militant and was killed along with three other associates at the
Hyderpora and the dead body of Amir had been buried.
8. In such circumstances referred to above, the appellant herein
preferred the Writ Petition (C) No. 11 of 2022 in the High Court and
prayed for the following relief:
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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"In view of the submissions made herein above and those to
be urged at the time of hearing, this Hon'ble Court is humbly
requested to direct the respondents to handover the body of
Late Mohammad Amir Magray, who was killed in a joint
encounter by them on 15.11.2021 at Hyderpora area of
Budgam in Kashmir to the petitioner who happens to be his
biological father on the facts and grounds mentioned above."
9. A learned Single Judge of the High Court adjudicated the writ
application and allowed the same directing the respondents herein to
make necessary arrangements for the disinterment of the body/remains
of the deceased Amir Magrey from the Wadder Payeen Graveyard in
the presence of the appellant herein.
10. The learned Single Judge while allowing the writ application
filed by the appellant herein, held as under:
"15. 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
life time, is part and parcel of right to life guaranteed under
Article 21 of the Constitution of India. 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. It
is not uncommon that the graves of the dead are maintained
by their relatives and are visited by their relations and close
friends to pay respect and homage on certain occasions.
16. Without dilating much on the issue, it can be said to be
well settled that right to life and liberty guaranteed to a citizen
by Article 21 of the Constitution of India includes right of
the citizen to live with human dignity and this right to live with
human dignity even extends after death though in a limited
extent. Viewed thus, the right of the petitioner to claim the
dead body of his son for performing last rites in his own way
and in accordance with local traditions, religious obligations
and religious faith, which the deceased professed during his
life time, cannot be disputed. But the question that needs to
be addressed in the context of present controversy is whether
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the State can deny this right in the name of preventing law
and order situation going out of hand.
17. It is vehemently contended by the respondents that the
decision not to hand over the body of the deceased to the
petitioner for performing his last rites, was taken in the larger
public interest and to prevent the situation of law and order
going out of hand. It is submitted that respondents have
witnessed such situations in the past and, therefore, have
decided not to handover the dead bodies of the terrorists killed
in encounters to their next of kin for cremation or burial to
prevent the law and order situation getting worsened. The
respondents, however, have not come clear as to why the
dead bodies of two of the four killed in the encounter, namely,
Altaf Ahmad Bhat and Dr. Mudasir Gul 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. 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 terrorist whereas the other two killed, namely,
Altaf Ahmad Bhat and Dr. Mudasir Gul 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 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. 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.
18. Much has been said by the respondents with regard to the
status of the body lying buried since 15.11.2021. While it
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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cannot be disputed that the body of Amir Latief Magrey buried
on 15.11.2021 in Wadder Payeen Graveyard may have
putrefied by now but that alone cannot be a reason not to
handover the remains of the dead body to the petitioner who
is clamoring at the top of his voice to get even the remains of
the dead body of his son so that he could bury him in his
native graveyard in the presence of relatives and after
following all religious obligations. The apprehension of law
and order getting vitiated at this point of time also appears to
be illusory. When the respondents could maintain the law and
order situation when the dead bodies of two, namely, Altaf
Ahmad Bhat and Dr. Mudasir Gul were exhumed and handed
over to their relatives for last rites on 18.11.2021, it is not
difficult for the respondents to make necessary arrangements
for exhumation of the dead body of Amir Latief Magrey, the
son of the petitioner and transport the same in proper escort
to Village Thatharka Seripora Tehsil Gool District Ramban.
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."
11. The learned Single Judge issued the final directions in para
19, which reads thus:
"19. For the foregoing reasons, I am inclined to allow this
petition of the father of the deceased Amir Latief Magrey and
direct 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
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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. In that situation, 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."
12. Thus, the learned Single Judge addressed himself essentially
on the following issues:
a. The State could not have denied the right of the appellant to
claim the dead body of his son for performing the last rites in
accordance with his religious faith on the ground of likelihood
of disturbance of public order. According to the learned Single
Judge, such right as asserted by the father is enshrined under
Article 21 of the Constitution.
b. Why the dead bodies out of the four killed in the encounter
were permitted to be exhumed and handed over to their
relatives for their last rites?
c. The action on the part of the respondents in not allowing the
appellant to take away the dead body of his son to his native
village was violative of Article 14 & 21 resply of the
Constitution.
13. The Union Territory of Jammu & Kashmir and others being
dissatisfied and aggrieved with the aforesaid order passed by the learned
Single Judge of the High Court challenged the same by filing the Letters
Patent Appeal No. 99 of 2022. The Appeal Court disposed of the appeal
holding as under:
"15. Learned Advocate General while making his submission
in line with the contentions raised and grounds urged would
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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contend that the impugned judgment is not legally sound and
that writ petitioner was not entitled to any of the reliefs prayed
in the petition including the reliefs sought now. According to
the learned Advocate General, the writ court misdirected itself
while considering the controversy and did not consider the
matter in its right and correct perspective, warranting as such,
setting aside of the impugned judgment and dismissal of the
petition. The learned Advocate General, however, would fairly
contend that having regard to facts and circumstances of the
case, respondent no. 1 and his family members can be allowed
to perform Fatiha Khawani (prayers after burial) at the grave
of the deceased subject to security measures as may be required
to be put in place by appellants, as according to him, the last
rites of deceased had been performed as per Islamic Religious
practices by giving a washing/cleaning of dead body,
shrouding/systematic wrapping of the body with two white
pieces of cloth, covering the whole body followed by Janaza
prayers and consequent burial of the deceased in the grave,
reciting verses from the Holy Book Quran.
16. Learned counsel for writ petitioner/respondent no. 1,
however, would controvert the contentions raised and grounds
urged by learned Advocate General inasmuch as the aforesaid
offer made by learned Advocate General, and would insist
for exhumation of the body of the deceased for performance
of last rites by the writ petitioner/respondent no. 1 herein.
17. In view of giving up of the relief of exhumation of the
body of the deceased for performance of last rituals by writ
petitioner/respondent no. 1 before the Apex Court inasmuch
as in view of uncontroverted/unopposed stand taken by
appellants before the Writ Court, that last rites of deceased
stand already performed while burying deceased at Wadder
Payeen Graveyard, the contention of the counsel for
respondent no. 1 in fact pales into insignificance and is not
acceptable.
18. The prayer of counsel for respondent no. 1 made during
the course of arguments that respondent no. 1 and his family
members be permitted to see the face of deceased by opening
the grave of the deceased, cannot be accepted and permitted,
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firstly, in view of pleading of writ petitioner that the dead
body would start decomposing immediately after burial, and
secondly in view of the statement made by the writ petitioner
before the Apex Court while giving up the prayer of
exhumation of the dead body of the deceased.
19. The aforesaid offer made by learned Advocate General
seemingly is fair and reasonable in the facts and circumstances
of the present case.
20. Insofar as alternative relief, pressed by respondent no. 1
before the Apex Court qua payment of compensation as
granted by the Writ Court is concerned, it needs to be
appreciated that appellants admittedly did not provide
opportunity to respondent no. 1 and his family to associate in
the burial and performance of last religious rites of the
deceased. Appellants prima facie have acted unfairly
inasmuch as unreasonably in this regard notwithstanding the
allegation of appellants that person of deceased was a
terrorist even if it may be assumed, as such, that the deceased
relinquished his right to be buried after performance of last
rites performed by his family members in accordance with the
faith professed by him, yet the said right of burial and
performance of last religious rituals of deceased available to
respondent no. 1 and his family members could not have been
denied. Admittedly, respondent no. 1 and his family manifestly
has been subjected to emotional and sentimental melancholy.
Respondent no. 1 and his family have been deprived by
appellants of the right to perform last rites and rituals of
deceased by the appellants admittedly without there being any
policy/guideline, as such cannot be endorsed in law, in that,
ours is a Welfare State acknowledged by the whole globe.
The appellants herein also could not have overlooked the
background of the family of respondent no. 1 and his family's
role in fighting terrorism. The Writ Court having regard to the
aforesaid position has rightly awarded the compensation to
the respondent no. 1 for such deprivation and the award of
said compensation seemingly is appropriate."
14. The Appeal Court issued the following directions in para 21, as
under:
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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"21. For all what has been observed, considered and analysed
above, and having regard to the peculiar facts and circumstances
of the present case, the instant appeal is disposed of as follows:
(i)
Appellants to allow respondent no. 1 and his family
members (maximum 10 persons) to perform Fatiha
Khawani (religious rituals/prayers after burial) of
deceased at Wadder Payeen Graveyard, on the date
and time to be decided in consultation with
respondent no. 1, subject to taking into account
security measures which may be required to be put
in place inasmuch as the COVID-19 guidelines.
(ii)
Appellants to pay compensation of Rs. 5.00 Lakhs,
awarded by the Writ Court, to respondent no. 1 is
maintained. It is made clear that the payment of said
compensation by appellants to respondent no. 1 shall
not form a precedence for future in view of the fact
that the said compensation stands awarded to the
writ petitioner/respondent no. 1 in view of the peculiar
facts and circumstances of the instant case."
15. Thus, from the aforesaid, it is evident that the Appeal Court
did not approve the decision of the learned Single Judge to direct the
respondents herein to exhume the body of the deceased and thereby
permit the family members to shift and bury at their native graveyard in
accordance with the religious practice.
16. The appellant (father of the deceased) being dissatisfied with
the order passed by the High Court is here before us with the present
appeal invoking Article 136 of the Constitution.
Submissions on behalf of the Appellant
17. Mr. Anand Grover, the learned senior counsel appearing on
behalf of the appellant, at the outset, submitted that he would like to
confine his prayer to the extent of directing the respondents to disinter
the body so as to enable the appellant as a father and other family members
to perform the prayers/rituals to their satisfaction. Mr. Grover submitted
that the body is now buried past almost more than eight months. In such
circumstances, the family members of the deceased would not like to
disturb the remains of the dead body and once the prayers are offered,
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the body may be once again buried. However, Mr. Grover clarified that
the appellant would like to wash the body with water and wrap it up with
a new white cloth.
18. Mr. Grover further submitted that the Appeal Court ought not
to have disturbed the order passed by the learned Single Judge directing
the respondents to exhume the body. He would submit that the appellant
as a father still believes that his son was not a terrorist or a militant and
was killed in a fake encounter. Mr. Grover would submit that assuming
for a moment without admitting that the deceased was a militant, the
police should have handed over the dead body to the family members
and could not have buried the body discreetly at the Wadder Payeen
Graveyard.
19. The entire line of argument of Mr. Grover is that the appellant
has a fundamental right under Article 21 of the Constitution to perform
the last rites of his dead son in accordance with the rituals prevailing in
Islam. The appellant as a father could not have been deprived of such
fundamental right. He would submit that as the appellant was not
permitted or rather given an opportunity to perform the last rites of his
dead son, there is no other option but to pray for exhumation of the dead
body.
20. In support of his aforesaid submissions, Mr. Grover seeks to
rely upon the following decisions:
(1)
Pt. Parmanand Katara, Advocate v. Union of India,
(1995) 3 SCC 248,
(2)
S. Sethu Raja v. The Chief Secretary, The Chief
Secretary, Government of Tamil Nadu and Ors.,
WP(MD) No.3888 of 2007 decided on 28.08.2007,
(3)
Ramlila Maidan Incident, In Re, (2012) 5 SCC 1,
(4)
Jakir Sk. v. The State of West Bengal & Ors., 2017 SCC
OnLine Cal 3354,
(5)
Vineet Ruia v. Principal Secretary, Ministry of Health
and Family Welfare, Government of West Bengal, AIR
2020 Cal 308,
(6)
Ram Sharan Autyanuprasi v. Union of India, AIR 1989
SC 549,
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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SUPREME COURT REPORTS
[2022] 11 S.C.R.
(7)
Ashray Adhikar Abhiyan v. Union of India, (2002) 2 SCC
27,
(8)
Pradeep Gandhy v. State of Maharashtra, 2020 SCC
OnLine Bom 662.
21. In such circumstances referred to above, Mr. Grover prays
that there being merit in his appeal, the same may be allowed and
appropriate relief may be granted.
Submissions on behalf of the Respondents
22. On the other hand, this appeal has been, vehemently, opposed
by Mr. Ardhendumauli Kumar Prasad, the learned counsel appearing for
the respondents submitting that no error, not to speak of any error of law
could be said to have been committed by the High Court in passing the
impugned order. The learned counsel would submit that the impugned
order passed by the High Court is a balanced order keeping all the relevant
aspects of the matter in mind, more particularly, the issues relating to
public order etc. and no interference is warranted at the end of this
Court in exercise of jurisdiction under Article 136 of the Constitution.
23. The learned counsel would submit that the appellant as a father
of the deceased cannot assert that he has a fundamental right under
Article 21 of the Constitution to seek exhumation of the body for the
purpose of performing the necessary rituals.
24. The learned counsel invited the attention of this Court to the
averments made in the affidavit in reply filed for the purpose of opposing
the present appeal. We quote the relevant averments, as under:
"4. It is respectfully submitted that in the previous round of
before this Hon'ble Court in SLP(C) No. 10760 of 2022, the
Petitioner submitted that he does not press for the relief
regarding exhumation and handing over of the body remains
of his deceased son. Relevant extract of the order dated
27.06.2022 passed by this Hon'ble Court in SLP(C) No.
10760/2022 are reproduced herein below:
"Learned counsel for the petitioner at the outset states that
he does not press for the first relief granted by the learned
Single Judge of the High Court regarding exhumation and
handing over of the body remains of his deceased son."
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5. Pursuant to the above, the Hon'ble High Court after
considering the said submission of the petitioner herein passed
the present Impugned Order. Relevant extract of the Impugned
Order dated 01.07.2022 passed by the Hon'ble High Court is
reproduced herein below:
"7. Indisputably, Respondent No. 1 herein has given up
first relief, granted by the Writ Court, before the Apex Court
as regards exhumation and handing over of the
body-remain of his deceased son. As such, the appearing
counsel for parties were heard on the rest of the reliefs
identified in the order of the Apex Court."
6. Further, the Hon'ble High Court whilst passing the present
impugned order was pleased to allow the petitioners herein
and his family members (maximum 10 persons) to perform
Fatiha Khawani (religious rituals/prayers after burial) of the
deceased at Wadder Payeen Graveyard, on the date and time
to be decided in consultations with respondent no. 1, subject
to taking into account security measures which may be
required to be put in place in as much as the COVID-19
guidelines.
7. It is submitted that the respondent is agreeable to the
abovementioned relief granted by the Hon'ble High Court
with regards to performing Fatiha Khawani (religious rituals/
prayers after burial) subject to reasonable conditions being
imposed by the concerned District Magistrate in the interest
of public health, security and maintenance of law and order.
8. It is humbly submitted that further relief sought by the
Petitioner before this Hon'ble Court regarding exhumation of
the body of the deceased and offering prayer thereat is opposed
by the answering respondent authorities on the ground of state
security, law and order, public health & hygiene apart from
the fact that the same will open a floodgate of similar requests
and will raise serious security concerns and threat to public
order and health. In this regard detailed averments have
already been submitted by the answering respondent before
single bench and Divisional Bench of JK High Court.
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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[2022] 11 S.C.R.
9. It is respectfully submitted that the deceased was a hard
core terrorist associated with a terrorist group and was killed
in an encounter with the security forces on 15.11.2021 along
with Pakistan based terrorist with whom he was hatching
different terror conspiracies.
10. That pursuant to the fierce gun battle/encounter that led
to killing of the deceased terrorist, authorities have performed
the last rites of the deceased as per his religious beliefs and
practices and buried the dead body as per the religious
customs. It is respectfully submitted that the Hon'ble High
Court has nowhere observed that there has been any violation
of practice of religious customs during the last rites of the
deceased.
11. It is respectfully submitted that it has been more than 8
months from the date of burial of the dead body and as of
now the same would have decomposed hence, no purpose
would suffice by exhuming the same as the same may lead to
adverse public health issues. This factual position is also
elaborately admitted by the petitioner in its pleadings as well
before the Hon'ble High Court of J&K, Srinagar.
12. That, it is further respectfully submitted that pursuant to
the encounter of terrorist namely Burhan Wani, a disturbing
trend of glorification of the deceased terrorists was witnessed
in the valley wherein anti- national emotions were stoked in
the youth and they are instigated against the Indian Republic
to join various terror groups. It is respectfully submitted that
in exhuming the remains of the deceased, such emotions may
be flared and such activities shall be revived which may lead
to a further threat to national security and glorification of
terrorism.
13. It is respectfully submitted that the valley is affected by
terror activities and there are regular gun- battle/encounters
between the security forces and terrorists. Any direction of
exhumation of the body will lead to similar requests from the
family of other killed terrorists, which may adversely affect
security of nation and public order in the entire Union Territory
of JK, as mentioned above and averments already submitted
before the Honourable High Court.
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14. Therefore, in light of the submissions made herein- above,
it is respectfully submitted that the prayer of exhumation of
the mortals of the deceased may not be granted and the
direction of allowing the petitioners herein and family
(maximum 10 persons) to perform Fatiha Khawani (religious
rituals/prayers after burial) of the deceased at Graveyard,
on the date and time to be decided in consultations with
respondent no. 1, subject to taking into account security
measures which may be required to be put in place in as much
as the COVID-19 guidelines may be allowed and the present
Special Leave Petition may be dismissed." [Emphasis supplied]
25. In such circumstances referred to above, the learned counsel
appearing for the respondents prayed that there being no merit in this
appeal, the same may be dismissed.
Analysis
26. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the following questions
of law fall for the consideration of this Court:
a.
Whether the appellant (father of the deceased) can pray
for exhumation of the dead body of his son from the graveyard
asserting that it is his fundamental right as enshrined under
Article 21 of the Constitution to perform the last rites of his
slained son?
b.
Will it be in the fitness of the things, more particularly, having
regard to the fact that the body is now buried past more
than eight months to order, exhumation so as to enable the
appellant and his family members to perform the rituals as
followed in Islam?
c.
Assuming for a moment that it is the fundamental right of
the father under Article 21 of the Constitution to perform
the last rites and rituals of his son with dignity before being
buried in a graveyard, should this Court in exercise of its
jurisdiction under Article 136 (1) of the Constitution disturb
the impugned order passed by the High Court at the risk &
peril of public order, health etc. and grant the relief of
exhumation after almost nine months?
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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d.
Whether the High Court in appeal committed any substantial
error in passing the impugned order?
Exhumation of Body
27. Exhumation involves opening up a grave (or occasionally a
vault) and removing the human remains already buried there. Also known
as 'disinterment', exhumation is controversial - even if the intent is usually
to rebury the displaced remains elsewhere.