[Hyderpora Encounter] Jammu and Kashmir High Court allows father, family members of deceased Amir Magrey to perform rites at grave

The High Court of Jammu & Kashmir and Ladakh on Friday allowed the father and other family members of late Amir Magrey, one of the four persons killed in the Hyderpora encounter in a joint operation by police and security forces last year, to perform religious rituals/prayers at Wadder Payeen graveyard in Kashmir's Budgam [Union Territory of J&K & Ors. v Mohammad Latief Magrey & Anr.].A division bench of Chief Justice Pankaj Mitha and Justice Javed Iqbal Wani upheld the decision of a single-judge ordering the Union Territory of Jammu and Kashmir to pay compensation of ₹5 lakh to the family for depriving them of the right to give Magrey a decent burial."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," the judgment stated..The Court was hearing an appeal filed by the Union Territory challenging a decision of a single-judge who had directed that the body of Magrey be exhumed and be handed over to his family to perform decent burial besides religious rituals and prayers at their native place in Jammu's Ramban..On June 2023, the division bench had stayed the operation of the single judge's order and Magrey's father, Mohammad Latief Magrey, approached the Supreme Court against the same.The prayer then gave up the prayer to exhume the body and the Supreme Court disposed of the matter and directed Jammu and Kashmir High Court to consider petitioner's plea within one week..Advocate General DC Raina, appearing on behalf of the appellant government, contended that the single-judge had misdirected itself while considering the controversy and did not consider the matter in its right perspective.He did, however, submit that Magrey's family members can be allowed to perform Fatiha Khawani (prayers after burial) at his grave subject to security measures as may be required..The Court prima facie opined that the government had acted unfairly by denying Magrey the right to a decent burial regardless of whether or not he was a terrorist as alleged."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", the Court observed in its judgment.However, the Court declined to allow the family to open the casket and see the face of the deceased one last time the body would have decomposed by now.The Court stated that the offer made by the Advocate General to offer prayers at Wadder Payeen graveyard is fair and reasonable in the facts and circumstances of the case..Magrey's father was represented by advocate Deepika Singh Rajawat..In November 2021, four people including Amir Magrey were killed in Jammu and Kashmir's Hyderpora in a joint operation by police and security forces.While the police claimed that two of them (one being Magrey) were militants and two others "over ground workers", the families of the deceased disputed the same and claimed that they were innocent. After protest by the families and a public outcry, Jammu and Kashmir Lieutenant Governor Manoj Sinha ordered a magisterial inquiry into the incident on November 18.The authorities had exhumed bodies of two of the deceased Dr. Mudassir Gul and Altaf Bhat and handed over the same to their families but refused to handover Amir Magrey's body to his father..[Read Judgment]