2022 Supreme(SC) 906

SUPREME COURT OF INDIA
SURYA KANT, J.B. PARDIWALA, JJ.
Mohammad Latief Magrey – Appellant
Versus
The Union Territory of Jammu And Kashmir & ORS. – Respondents
Civil Appeal No. 6544 OF 2022 (@ SLP (C) NO.12743 OF 2022)
Decided on : 12-09-2022

IMPORTANT POINTS
(1) Disinterment of body of slain militant for the purpose of religious rituals – After a body has been buried, it is considered to be in custody of law – Disinterment is not a matter of right – Disturbance or removal of an interred body is subject to control and direction of court – Sanctity of grave should be maintained – Once buried, a body should not be disturbed.
(2) Court of law has to decide the matter in accordance with law, more particularly, keeping in mind doctrine of Rule of Law.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 176(3) – Constitution of India – Articles 21, 25 and 26 – Disinterment of body of slain militant for the purpose of religious rituals – Exhumation is permitted for the purpose of crime detection and other such pressing situations – Whenever there is a suspicion of foul play like homicide, criminal abortion, disputed cause of death, poisoning etc. exhumation may be carried out for the purpose of post-mortem examination – In instant case, after deceased was killed in encounter, authorities performed last rites of deceased with all dignity with aid of Auqaf Committee as per religious beliefs and practices – Religious rights of every person and every religion are, however, subject to public order, maintenance whereof is paramount in larger interest of society – Both these fundamental rights have been expressly made subject to public order, morality and health – Exercise of these fundamental rights is not absolute but must yield or give way to maintenance of public order, morality and health. (Paras 29, 30 and 35)

(B) Constitution of India – Articles 21, 25 and 26 – Criminal Procedure Code, 1973 – Section 176(3) – Disinterment of body of slain militant for the purpose of religious rituals – Right to live a dignified life as enshrined under Article 21 of Constitution is not only available to a living person but also to dead – Even a dead person has 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 – Writ court had allowed disinterment subject to condition that body should be found to be in a deliverable state – If body is found to be highly putrefied then it may pose a risk to public health and hygiene – In such a situation family of deceased would only be allowed to perform last rites in graveyard itself – Almost 9 months have passed post burial which is suggestive that body may not be in a deliverable state – It will be too much at this stage to disinter the body – Dead should not be disturbed and some sanctity should be attached to grave – High Court has awarded monetary compensation of Rs. 5,00,000/- – Relief granted by High Court in impugned Judgment can be termed as just, proper and equitable – Respondents directed to comply with directions issued by High Court. (Paras 51, 53, 54, 55, 56, 60 and 61)

(C) Constitution of India – Articles 21, 25 and 26 – Criminal Procedure Code, 1973 – Section 176(3) – Disinterment of body of slain militant for the purpose of religious rituals – After a body has been buried, it is considered to be in custody of law – Disinterment is not a matter of right – Disturbance or removal of an interred body is subject to control and direction of court – Law does not favour disinterment, based on the public policy that sanctity of grave should be maintained – Once buried, a body should not be disturbed – Court will not ordinarily order or permit a body to be disinterred unless there is a strong showing of necessity that disinterment is within interests of justice – Each case is individually decided, based on its own particular facts and circumstances – Court of law respect emotions and sentiments expressed by appellant as father of the deceased – However, court of law should not decide rights of parties considering their sentiments – Court of law has to decide the matter in accordance with law, more particularly, keeping in mind doctrine of Rule of Law – Union of India may consider enacting an appropriate legislation on exhumation so as to tackle situations like one on hand. (Paras 56, 57 and 59)

(D) Constitution of India – Article 136 – Appellate Jurisdiction – Invocation of – Parameters – Unless it is shown that exceptional and special circumstances exist and that substantial and grave injustice has been done and case and question presents features of sufficient gravity to warrant a review of decision appealed against, Supreme Court would not exercise its overriding powers under Article 136 (1) of Constitution – Wide discretionary power with which Supreme Court is invested under Article 136 is to be exercised sparingly and in exceptional cases only. (Para 50)

Facts of the case:

Present appeal is at the instance of the original writ applicant (father of the deceased, whose son was killed in an encounter between police and militants) and is directed against the judgment and order passed by High Court of Jammu & Kashmir and Ladakh at Srinagar by which Appeal Court modified the judgment and order passed by Single Judge of High Court and thereby permitted appellant herein and his family members (maximum up to 10 persons) to perform Fatiha Khawani (religious rituals/prayers after burial) of deceased at the graveyard while declining to grant permission to disinter body of deceased for the purpose of religious rituals.

Findings of Court:

Although, for some reason or the other, the body of the deceased was not handed over to the family members yet the same was buried with respect & dignity, with the help of the Auqaf Committee at Graveyard. Body was buried with dignity. There is nothing on record to indicate that the dead body was dealt with in any manner insulting or hurting the religious feelings of the family members.

Result : Appeal dismissed.