The Supreme Court today sought a response from the Jammu and Kashmir government on a plea by Talib Hussain, a key witness in the sensational Kathua gang rape-and-murder case, alleging custodial torture by the state police in an alleged rape case lodged against him by his sister-in-law.
A bench headed Chief Justice Dipak Misra initially asked senior advocate Indira Jaising, appearing for Hussain's cousin Mumtaz Ahmed Khan, to satisfy it as to how a writ of habeas corpus (produce the body) was maintainable in the present case where the accused was in lawful police custody following registration of an FIR against him.
"How will the writ of habeas corpus lie in the present case where the person is in valid custody of police," the bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, asked and adding that the concerned judicial magistrate may be approached with the grievances.
Jaising referred to a Supreme Court judgement and said that irrespective of the nature of detention, whether legal or illegal, such a petition can always be filed in cases of custodial torture.
The bench considered the submission of Jaising that Hussain had been brutally tortured in custody and judicial intervention was needed and asked the state government to file its response within a week.
The bench, however, refused to grant any interim relief with regard to alleged custodial torture of Hussain and said that the factum of alleged harassment has to be ascertained.
"It is submitted by Indira Jaising...for the petitioner that though the writ petition has been couched in a different manner, the fundamental purpose is to highlight the factum of custodial torture. Issue notice, fixing a returnable date within a week," it said in the order.
The petition was opposed by lawyer Chandan Sharma, appearing for Hussain's sister-in-law who has filed the FIR alleging rape, that there were as many as 10 FIRs against the accused and no relief should be granted without hearing the victim.
The court allowed the alleged rape victim to file an application seeking to implead herself as a party in the case and fixed the matter for further hearing on August 21.
At the outset, Jaising said the police travelled 270 kms to arrest Hussain in a case related to an FIR lodged by his wife.
As Hussain was granted anticipatory bail in that case, police arrested him in another fake rape case lodged by his relative, she said.
In the plea, protection of Hussain has been sought in the police custody alleging that he had been brutally beaten up in the alleged fake rape case.
Hussain is a key witness in the Kathua case, in which an eight-year-old girl from a minority nomadic community was abducted and gang-raped in January.
The state police's crime branch, which probed the case, filed the main charge sheet against seven people and a separate charge sheet against a juvenile.
The charge sheet has revealed chilling details about how the girl was allegedly kidnapped, drugged and raped inside a place of worship before being killed.
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