SC dismisses father's plea seeking to exhume son's body killed in Hyderpora encounter

The bench said J&K has submitted that the deceased was buried with all honour

The Supreme Court on Monday asked the Union government to consider bringing a law with regard to the exhumation of dead bodies as there is no such legislation in the country to deal with a request made by the family members of the deceased.

A bench of Justices Surya Kant and J B Pardiwala said the lawful authority for exhumation is contained in Section 176(3) of the Criminal Procedure Code and this activity is permitted for the purpose

of crime detection and other such pressing situations, including suspicion of foul play like homicide, criminal abortion, disputed cause of death, poisoning etc, for the purpose of postmortem examination.

The court rejected a plea by a man, Mohammad Latif Magrey to hand over the body of his son who was killed in the Hyderpora encounter with police in Srinagar in November 2021, saying he was a decent burial by the state authorities after performing last rites in accordance with religious beliefs.

Dealing with his plea, the bench said, "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."

The bench further said 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," the bench added.

In its judgement, the court also pointed out India has no legislation relating to exhumation except Section 176(3) of the CrPC. Very few countries are having legislation in regard to exhumation. One such legislation available is in Ireland. The Union government may consider enacting appropriate legislation on exhumation so as to tackle the situations like the one on hand, the bench said.

In the instant case, the court noted that the Jammu and Kashmir administration has submitted that the deceased was buried with all honour, and there is nothing to indicate that the body was not given a decent burial.

The bench said although it respected the sentiments of the father, the court has to decide matters, including rights on the principle of the Rule of Law.

The court, however, asked the J&K administration to comply with the High Court's direction to pay Rs five lakh compensation to Magrey.