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The matter was heard by a Bench of Chief Justice of India, Dipak Misra and Justices AM Khanwilkar and DY Chandrachud.
Senior Advocate Indira Jaising along with advocate Sunil Fernandes appeared for the petitioner.
The petitioner, who is a cousin of Talib Hussain, has sought a Habeas Corpus writ for production of Hussain before the Supreme Court.
The petitioner has alleged that third-degree custodial torture was inflicted by police on Hussain for his efforts in securing justice for Kathua rape victim.
When the matter was taken up for hearing today, the Bench asked Jaising how a Habeas Corpus petition would lie since Hussain is in lawful custody and has been produced before Magistrate.
“Has he been produced before Magistrate”, asked Justice Khanwilkar.
“Yes”, replied Jaising.
“Then how will a Habeas Corpus petition lie”, the Bench queried.
Jaising said that the question is not whether the custody is legal or illegal but whether there has been custodial torture.
“Whether the custody is legal or illegal is not what I am asking Your Lordships to look into. My argument is that custodial torture is unlawful even if the custody is lawful..
State has the right to hold a person in custody but has an equal duty to protect that person and not inflict any torture on that person”, she said.
The Court issued notice to State of Jammu & Kashmir and sought its response which has to be filed within a week.
The matter will now be heard on August 21.
Read the petition below.
Read the order below.