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LPA no.99/2022

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

….

LPA no.99/2022

Reserved on: 29.06.2022

Pronounced on: 01.07.2022

Union Territory of J&K and others

……...Appellant(s)

Through: Mr D. C. Raina, Advocate General with

Ms Asifa Padroo, AAG and Mr Sajad Ashraf GA

Versus

Mohammad Latief Magrey and another

……...Respondent(s)

Through: Ms Deepika Singh Rajawat, Advocate with

Ms Zarin Ali and Ms Yasmeen Wani, Advocates for

respondent no.1

Mr T. M. Shamsi, ASGI for respondent no.2

CORAM:

HON’BLE THE CHIEF JUSTICE

HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE

JUDGEMENT

1. The instant Letters Patent Appeal is directed against the judgement

dated 27^th May 2022, passed in a writ petition, bearing WP(C)

no.11/2022, titled as Mohammad Latief Magrey v. Union of India and

others.

2. The background facts, under the cover of which the instant appeal has

arisen, are that writ petitioner – respondent no.1 herein, instituted the

petition supra praying therein the following relief:

<In view of the submissions made herein above and those to be

urged at the time of hearing, this Hon’ble Court is humbly

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LPA no.99/2022

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.=

The reliefs, as aforesaid, have been sought by writ petitioner/

respondent no.1 herein on the premise that his son, namely, Mohammad

Amir Magray, got killed in an encounter carried by writ-respondents/

appellants herein on 15^th November 2021 at Hyderpora, Budgam,

Kashmir, and that the dead body of his deceased son was not handed

over to him by appellants for burial as per religious rites and practices,

thus, resulting into infringement of rights guaranteed under Article 21

of the Constitution of India, in that, the Article 21 extends as well to the

right to have decent burial as per religious ceremonies.

The writ petitioner/respondent no.1 herein had contended in the

petition supra that he has been instrumental in fighting and curbing the

militancy in his native place, i.e., Gool Singaldan, Ramban, along with

Indian Army and in this regard he had cited an incident, in which on 6^th

August 2005, he and his wife caught hold a LeT militant, who had

barged into their house and opened indiscriminate firing, thereby killing

his cousin brother, namely, Abdul Qayoom and in the said militant

attack, despite writ he having suffered injuries, hit the said militant with

a stone, and his deceased son and wife snatched a rifle from the said

militant after the militant had lost his conscious owing to the hit

suffered by the said stone. Writ petitioner/ respondent no.1 is stated to

have been conferred with the State Award for Bravery for the said

incident by the then Government of Jammu and Kashmir in the year

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LPA no.99/2022

2012. Respondent no.1 even was stated to have been well appreciated

by the Indian Army and for the services rendered by him in eradicating

the militancy in his native area, Gool Sangaldan, Ramban.

It had also been stated in the petition by respondent no.1 that his

whole family, including deceased son, had been associated in fight

against militancy in the area. It had been further stated in petition that

owing to financial constraints, the deceased son of respondent no.1

could not continue to pursue his studies and, as such, in order to support

the family, shifted to sister’s house in Kashmir and got a job of helper

in the office of one, Dr. Mudasir. During this period, the respondent

no.1 was stated to have remained in constant touch with deceased son,

who used to work with the said Dr. Mudasir till 14^th November 2021.

It had been next stated in the petition by respondent no.1 that on

16^th Novemb