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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, Jammu
& 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 India (‘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 murder of the minor girl from Kathua, 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 Pathankot 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 SUPREME COURT OF INDIA (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 DELHI DRAWN ON: .08.2018 FILED ON: .08.2018