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

Citation: [2022] 11 S.C.R. 236 · Decided: 12-09-2022 · Supreme Court of India · Bench: SURYA KANT · Disposal: Dismissed

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Judgment (excerpt)

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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
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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 w

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