The Supreme Court on Wednesday asked the Jammu and Kashmir government to respond to a plea made by a cousin of key Kathua rape case witness and social activist Talib Hussain that he has been framed in the case and cruelly tortured in custody by the police in Jammu and Kashmir, which has been under Governor’s rule since June 19.
A three-judge Bench led by Chief Justice of India Dipak Misra issued a notice but not before questioning why a habeas corpus (show the body) petition has been filed in a case in which the arrest has been legal.
Habeas corpus petitions are filed in cases of illegal or preventive detention.
"Was he not produced before a Magistrate? There must have been a remand order..." Justice A.M. Khanwilkar asked senior advocate Indira Jaising and advocate Sunil Fernandes, representing Mr. Hussain's family member.
Ms. Jaising explained that the basis of the petition is not whether he has been lawfully arrested or not, but whether he has been tortured in custody.
The senior advocate referred to the historic Sunil Batra judgement to contend that the arrest and remand may be initially lawful, but the subsequent use of "third degree" torture by the police in custody makes it illegal and thus a habeas corpus plea would lie.
"I am here to say any form of torture is illegal. The fundamental purpose of this petition is to highlight the factor of custodial torture," Ms. Jaising submitted.
The petition is filed by Mumtaz Ahmed Khan, cousin of Mr. Hussain, contending that the police should produce Mr. Hussain in the Supreme Court and call for his medical records while he was in custody.
Mr. Hussain, who belonged to the Bakarwal community as the minor victim of rape and murder in Kathua, is one of the prominent voices of justice for her.
“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 dated July 28, 2018 at Samba police station in J&K… Mr. Hussain has been subjected to third degree torture of the worst kind, which the petitioner believes has caused life-threatening injuries,” the petition said.
The FIR has charged him with rape and offences under the Arms Act. The petition said that his custody and alleged torture was in blatant violation of his fundamental right to life and violative of the Supreme Court’s landmark D.K. Basu judgement, which had 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”.
The Supreme Court has earlier intervened to provide justice in the Kathua case. On May 7, the apex court transferred the trial in the case from Kathua to Pathankot district in Punjab in anticipation of a fair trial.
On June 19, the elected government in J&K fell and Governor’s rule was imposed in the State of Jammu and Kashmir. The petition points out that on June 26, Mr. Hussain’s estranged wife lodged an FIR against him, alleging demand of dowry and money from her. She had accused him of physical abuse. A month later, a second FIR was registered on the complaint of the wife of his brother-in-law accusing him of rape.
The court has also impleaded the victim.
