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SYNOPSIS

The Petitioner, Shri Mumtaz Ahmed Khan, cousin of Mr.

Talib Hussain, S/o Shri Hazi Abdul, R/o Mansar Samba,

& Kashmir has preferred the present Writ Petition before this

Hon'ble Court seeking issuance of writ of habeas corpus or any other writ, order or direction as prayed for herein, for seeking protection against the blatant violation of the Fundamental Rights under Article 21 of the Constitution of (‘CoI’) of the detenue-Mr. Talib Hussain.

That Mr. Talib Hussain, who played a crusading role as a social activist in highlighting the unfortunate rape and of the minor girl from , has been implicated with false charges and has been in custody in FIR No. 0211/2018 U/s. 376

RPC and 4/25 Arms Act dated 28.07.2018 at Police Station

Samba, J&K. It is most respectfully submitted that the said Mr.

Talib Hussain has been subjected to third degree torture of the worst kind, which the Petitioner believes has caused life- threatening injuries.

The present petition is being preferred by the Petitioner herein, against the illegal custody of Mr. Talib Hussain in terms of the judgments passed by this Hon’ble Court in a Constitution

Bench of this Hon’ble Court in D.K Basu vs. State of West Bar & Bench (www.barandbench.com)

Bengal [(1997) 1 SCC 416], Prithpal Singh & Ors. Vs, State of

Punjab & Anr. [(2012) 1 SCC 10], in which this Hon’ble Court has held that custodial violence, torture in police custody/ lock-up infringes Article 21 as well as the basic human rights and strikes and blow at rule of law.

That in view of the gravity of the situation, it is most humbly submitted that if this Hon'ble Court does not expeditiously intervene in this matter and grant the relief sought for, it is most likely that the said Mr. Talib Hussain would suffer a custodial death or receive such long term and permanent injuries which would materially infract his Right to Life guaranteed under Article

21 of the CoI.

Hence the present Writ Petition.

LIST OF DATES

DATE PARTICULARS

January- Mr. Talib Hussain is a well known Social Activist, April, 2018 born in the State of J&K and belongs to the same

community as the deceased unfortunate rape victim

(i.e. the Bakarwal Community). Mr. Talib Hussain is

the Chairperson of All Tribal Communities Council

(‘ATCC’) and is one of the prominent Members of

his Community. He has spent several years Bar & Bench (www.barandbench.com)

devoting his time and energy to the social-

educational upliftment of his Community. At the

time, when the news of the gruesome rape of a

minor 8 year old girl from his community broke

through, Mr. Talib Hussain is one of the very few

people who comes forward to secure justice to the

family of the deceased minor girl. As influential

persons were involved the case, Mr. Talib Hussain

was targeted by not only certain influential persons

but also by those with a communal bent of mind

who wanted to give a communal colour to the

Kathua rape case.

07.05.201 This Hon’ble Court in Writ Petition (Crl) 85/2018, 8 before it, is pleased to transfer the Trial of the

Kathua rape case from District & Sessions Judge

Kathua to District & Sessions Judge in

the State of Punjab.

19.06.201 The Elected State Government/Coalition Govt falls 8 and Governors Rule is imposed in the State of

Jammu and Kashmir.

26.06.201 FIR No. 0185/2018, U/s. 382/ 323/498A/354A/504 8 /506/307/109 RPC dated 26.06.2018, PS Samba,

J&K (‘First FIR’) is lodged by Mst. Nusrat Begum, Bar & Bench (www.barandbench.com)

the estranged wife of Mr. Talib Hussain-, alleging

demand of dowry and money from her and also

alleging that she had been physically abused by Mr.

Talib Hussain.

30.07.201 The Hon’ble High Court of Jammu & Kashmir at 8 Srinagar is pleased to grant ad interim protection to

Mr. Talib Hussain in CRMC No. 285 of 2018 titled

Talib Hussain & Anr. Vs. State of J&K & Anr.

31.07.201 FIR No. 0211/2018 U/s. 376 RPC and 4/25 Arms 8 Act dated 31.07.2018 at Police Station Samba, J&K

(‘Second FIR’) is registered against Mr. Talib

Hussain by the wife of his brother-in-law alleging

that he attempted to rape the prosecutrix.

On the same day, Mr. Talib Hussain is taken

into custody by the Samba Police Station.

02.08.201 Advocate of Mr. Talib Hussain i.e. Adv. Mubeen 8 Farooqui (Enrl. P/4809/2010) visits him at Samba

Police Station and sees that Mr. Talib Hussain has

been subjected to third degree torture while in

custody, the same is also confirmed by Mr. Talib

Hussain who confides in his advocate and informs

him about him being tortured in custody.

Bar & Bench (www.barandbench.com)

05.08.201 The relatives of Mr. Talib Hussain namely Mr. 8 Sabar Ali, (maternal uncle), Mst. Gulzar Begum

(maternal aunt) and their son Mr. Shabir Ahmed

meet Mr. Talib Hussain at Samba Police Station,

J&K and witness physical torture on the body of Mr.

Talib Hussain, at the instance of the Police. They

fear for his life.

.08.2018 Hence the present Writ Petition

Bar & Bench (www.barandbench.com)

IN THE (CRIMINAL ORIGINAL JURISDICTION) WRIT PETITION (CRL.) NO. OF 2018 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF:

MUMTAZ AHMED KHAN S/o Nazir Ahmed R/o Brariangan Shangus Anantnag Jammu & Kashmir …Petitioner VERSUS

STATE OF JAMMU & KASHMIR Through Principal Secretary, Home Department, Govt. of Jammu and Kashmir Civil Secretariat Jammu Jammu & Kashmir …Respondent

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

TO, HON’BLE THE CHIEF JUSTICE OF INDIA AND HIS OTHER COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THE PETITIONER ABOVENAMED

MOST RESPECTFULLY SHOWETH:-

1. The Petitioner through this writ petition under Article 32 of

the Constitution of India (‘CoI’) seeks issuance of writ of

habeas corpus or any other writ, order or direction as

prayed for herein. Bar & Bench (www.barandbench.com)

2. The Petitioner, Shri Mumtaz Ahmed Khan, is the cousin of

Mr. Talib Hussain, S/o Shri Hazi Abdul, R/o Mansar

Samba, Jammu & Kashmir who has been in custody in FIR

No. 0211/2018 U/s. 376 RPC and 4/25 Arms Act dated

31.07.2018 at Police Station Samba, J&K. It is most

respectfully submitted that the said Mr. Talib Hussain has

been subjected to third degree torture of the worst kind,

which has caused life-threatening injuries and therefore,

this instant habeas corpus Petition is being preferred

before this Hon'ble Court invoking the kind protection of

this Hon'ble Court against the blatant violation of the

Fundamental Rights under Article 21 of the CoI of the

detenue-Mr. Talib Hussain.

3. The sole Respondent is the State of Jammu & Kashmir

represented through the Home Department, Civil

Secretariat, Srinagar, Jammu & Kashmir.

4. The facts leading to the fling of the present Writ Petition

are as follows:-

4.1 This Hon'ble Court was pleased to grant indulgence to Writ

Petition (Crl) No. 85/2018 – “Mohd Akhtar v State of J&K”

ie. Writ Petition filed by the father of the raped and

murdered 8 year old minor girl from District Kathua in the

State of Jammu & Kashmir. Bar & Bench (www.barandbench.com)

4.2 The shocking and gruesome facts pertaining to this matter

were brought to the attention of this Hon'ble Court due to

the tireless efforts of Mr. Talib Hussain and advocate Ms.

Deepika Singh Rajawat. Mr. Talib Hussain is a graduate

and is pursuing his LLB course. He is also a well known

Social Activist. He was born in the State of J&K and

belongs to the same community as the deceased

unfortunate rape victim (i.e. the Bakarwal Community). Mr.

Talib Hussain is the Chairperson of All Tribal Communities

Council (‘ATCC’) and is one of the prominent Members of

his Community. He has spent several years devoting his

time and energy to the social-educational upliftment of his

Community.

4.3 When the news of the instant gruesome rape of a minor 8

year old girl from his community broke through, very few

people were ready to come forward and secure justice to

the family of the deceased minor girl who are poor sheep

grazers i.e. Bakarwals. It was Mr. Talib Hussain who took

the lead in securing justice to the family of the deceased

and ensuring that there is proper investigation in the said

case. The problem of influential people being involved in

this case was further exacerbated by the unfortunate highly

polarised communal divide that took place in Jammu

province. Therefore, Mr. Talib Hussain was being targeted Bar & Bench (www.barandbench.com)

by not only certain influential persons but also by those

with a communal bent of mind who wanted to give a

communal colour to the Kathua rape case.

4.4 It is verily believed that these unknown powerful vested

interests were waiting for a right opportunity to “punish” Mr.

Talib Hussain for his impertinence in highlighting this

unfortunate rape case as a consequence of which several

arrests were made and the case was transferred from the

local Police to the State Crime Branch.

4.5 The Elected State Government fell on 19th June 2018 and

Governors Rule was imposed in the State of Jammu and

Kashmir.

4.6 Suddenly the estranged wife of Mr. Talib Hussain, Mst.

Nusrat Begum alleged that Mr. Talib Hussain demanded

dowry and money from her and physically abused her to

the extent of even attempting to kill her. Based on the

information/complaint of Mst. Nusrat Begum, the State

Police registers an FIR bearing No. 0185/2018, U/s. 382 /

323/498A/354A/504/506/307/109 RPC dated 26.06.2018,

PS Samba, J&K (‘First FIR’). True copy of the FIR bearing

No. 0185/2018, U/s. 382 / 323/ 498A/ 354A/ 504/ 506/ 307/

109 RPC dated 26.06.2018, PS Samba, J&K is annexed

hereto as ANNEXURE P - 1 [Page Nos. _____to_____]. Bar & Bench (www.barandbench.com)

4.7 Mr. Talib Hussain was constrained to approach the Hon'ble

High Court of Jammu & Kashmir against the registration of

the aforementioned FIR. The Hon'ble High Court vide order

dated 30th July 2018 was pleased to grant interim

protection to Mr. Talib Hussain. True copy of the order

dated 30.07.2018 passed by the Hon’ble High Court of

Jammu & Kashmir at Srinagar in CRMC No. 285 of 2018

titled ‘Talib Hussain & Anr. Vs. State of J&K & Anr’ is

annexed hereto and marked as ANNEXURE P - 2 [Page

Nos. _____to_____].

4.8 On 31st July 2018, a second FIR in a span of one month

was registered against Mr. Talib Hussain. The allegations

in FIR No. 0211/2018 U/s. 376 RPC and 4/25 Arms Act

dated 31.07.2018 at Police Station Samba, J&K (‘Second

FIR’), were that Mr. Talib Hussain attempted to rape the

prosecutrix. It is instructed to note that the prosecutrix is

related to Mr. Talib Hussain by marriage (i.e. she is the

wife of Mr. Talib Hussain’s brother-in-law). True copy of the

FIR No. 0211/2018 U/s. 376 RPC and 4/25 Arms Act dated

31.07.2018 at Police Station Samba, J&K is annexed

hereto as ANNEXURE P - 3 [Page Nos. _____to_____].

4.9 A bare perusal of the FIR would reveal that the contents

thereof are unbelievable and fanciful. It is very apparent

that once the Hon'ble High Court Jammu & Kashmir Bar & Bench (www.barandbench.com)

passed an interim order and granted protection in favour of

Mr. Talib Hussain in the first FIR, the second FIR has been

concocted in order to ensure that Mr. Talib Hussain is

somehow taken into police custody.

4.10 Mr. Talib Hussain was arrested on 31st July 2018 in the

aforementioned FIR registered at the instance of the wife

of his brother-in-law. It is instructive to note that the

registration of this FIR and his arrest happened on the

same day i.e. one day after the grant of interim protection

by the Hon'ble High Court of Jammu & Kashmir on 30th

July 2018.

4.11 That on 2nd August 2018, the advocate of Mr. Talib

Hussain i.e. Adv. Mubeen Farooqui (Enrl. P/4809/2010)

visited him at Samba Police Station and it was clear to the

said advocate- Mr. Farooqui that Mr. Talib Hussain has

been subjected to third degree torture while in custody. Mr.

Talib Hussain also confided in his advocate about him

being tortured while in custody.

4.12 The on 5th August 2018, the relatives of Mr. Talib Hussain

namely Mr. Sabar Ali, (maternal uncle), Mst. Gulzar Begum

(maternal aunt) and their son Mr. Shabir Ahmed went to

meet Mr. Talib Hussain at Samba Police Station, J&K. It is

at that time that they witnessed physical torture on the

body of Mr. Talib Hussain at the instance of the Police. Bar & Bench (www.barandbench.com)

4.13 The aforementioned two visits by the advocate and

relatives of Mr. Talib Hussain, respectively, clearly reveal

that he has received third degree torture at the hands of

the Police.

5. GROUNDS:-

A. BECAUSE the custody of a person ought to be rendered

illegal the moment he is subjected to third degree torture.

B. BECAUSE the J&K Police has subjected Mr. Talib Hussain

to third degree torture in blatant violation of the law laid

down by this Hon'ble Court with regards to custodial

interrogation and rights of the accused during police

custody.

C. BECAUSE the J&K Police has violated its own rules and

regulations with regards to treatment of undertrials /

accused persons by subjecting Mr. Talib Hussain to third

degree torture.

D. BECAUSE if this Hon'ble Court does not expeditiously

intervene in this matter and grant the relief sought for, it is

most likely that the said Mr. Talib Hussain would suffer a

custodial death or receive such long term and permanent

injuries which would materially infract his Right to Life

guaranteed under Article 21 of the CoI. Bar & Bench (www.barandbench.com)

E. BECAUSE the instant FIR is nothing but an attempt to

punish Mr. Talib Hussain for his crusading role as a social

activist in highlighting the unfortunate rape and murder of

the minor girl from Kathua.

F. BECAUSE this Hon'ble Court in D.K Basu vs. State of

West Bengal [(1997) 1 SCC 416], Prithpal Singh & Ors.

Vs, State of Punjab & Anr. [(2012) 1 SCC 10] and

several other such cases.

G. BECAUSE the J&K Police have violated the law laid down

by this Hon'ble Court in the aforementioned judgments

which govern the field with respect to custodial

interrogation and treatment of undertrial and accused

persons.

6. The instant petition has been filed bonafidely and grave

and irreparable harm and injury would befall on Mr. Talib

Hussain unless this Hon'ble Court exercises its jurisdiction

and passes orders as prayed for in the instant petition.

7. That this Hon'ble Court has the jurisdiction to entertain and

adjudicate the instant petition.

8. That no other petition seeking similar relief has been filed

by the Petitioner herein or by any other person before this

Hon'ble Court.

Bar & Bench (www.barandbench.com)

9. That the Writ Petition has been filed without any delay or

latches and there is no legal bar in entertaining the same.

That the Petitioner has no other efficacious alternative

remedy except to file the present Writ Petition before this

Hon’ble Court by invoking Article 32 of the Constitution.

10. That the Annexures are true and correct copies of their

respective originals.

11. That the facts as disclosed in the instant petition make out

a good prima-facie case for the exercise of jurisdiction of

this Hon'ble Court.

PRAYERS

IN THE AFOREMENTIONED PREMISES, IT IS MOST RESPECTFULLY PRAYED THAT THIS HON'BLE COURT MAY BE PLEASED TO:-

(A) Issue a writ of Habeas Corpus or any other writ / order /

direction of the like nature directing the Respondent herein

to produce Mr. Talib Hussain, S/o Shri Hazi Abdul before

this Hon'ble Court and pass any further consequential

orders as this Hon'ble Court;

(B) Issue an appropriate writ/ order/ direction with regards to

examining the physical and mental health of Mr. Talib

Hussain during his police custody from 31st July 2018 till

date, by a competent medical board, and pass any other Bar & Bench (www.barandbench.com)

further writ/ order/ direction that this Hon'ble Court may

deem fit and proper in the facts and circumstances as

pleaded in the instant petition with regards to custodial

torture, violation of the law in this regard by the J&K Police

and the material infraction of fundamental rights of Mr.

Talib Hussain;

(C) Pass appropriate orders punishing the Police Officers and

any other such person involved in the custodial torture/third

degree torture of Mr. Talib Hussain, pass appropriate orders

awarding suitable and appropriate compensation to Mr.

Talib Hussain, and;

(D) Pass any other order/direction/writ that this Hon'ble Court

may deem fit in order to do complete justice including but

not limited to holding that custodial torture and imparting

third degree methods on the undertrial / accused / detenue /

detainee vitiates the custody and renders it illegal;

(E) Pass such other order(s) or direction(s) as it deems fit in the

facts of the present case and in the interests of justice.

AND FOR THIS ACT OF KINDESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY

SETTLED BY:-

MS. INDIRA JAISING Bar & Bench (www.barandbench.com)

SENIOR ADVOCATE DRAWN & FILED BY

[SUNIL FERNANDES] Advocate for the Petitioner NEW DRAWN ON: .08.2018 FILED ON: .08.2018