SC notice to J&K govt on ‘custodial torture’ of key witness

P L Uniyal. Dated: 8/9/2018 12:07:37 PM

NEW DELHI, Aug 8: The Supreme Court on Wednesday issued notice to the Jammu and Kashmir government on a petition alleging custodial torture of activist Talib Hussain, a witness in the Kathua minor rape, murder case, after he was arrested in a rape case lodged against him at Samba police station.
Acting on a habeas corpus petition filed by his cousin Mumtaz A Khan, a three-judge bench of the Supreme Court headed by CJI Dipak Misra along with Justice AM Khanwilkar and DY Chandrachud asked the Jammu and Kashmir government to respond to the allegations by August 21, next date of hearing.
Talib’s cousin in his petition alleged that third-degree custodial torture was inflicted by police on him (Talib) for his efforts in securing justice for Kathua rape victim. The petitioner alleged that there was threat to Talib’s life as he played an important role in exposing the accused in the Kathua minor rape, murder case.
Senior advocate Indira Jaising along with advocate Sunil Fernandes represented the petitioner.
Jaising alleged that Hussain was tortured in custody by the police which implicated him in a false rape case.
During the hearing, the Bench asked senior advocate Jaising as how a habeas corpus could lie since Talib was in lawful custody and was also produced before the magistrate.
Jaising replied, “Whether the custody is legal or illegal is not what I am asking your Lordships to look into. My argument is that custodial torture is unlawful even if the custody is lawful. State has the right to hold a person in custody but has an equal duty to protect that person and not inflict any torture on that person.”
After issuing a notice to the state, the court scheduled August 21 as the next date for hearing the matter.
The rape case was lodged against Talib in July by the wife of his brother-in-law. In this connection, he was arrested a week ago by Samba police from Tral.
He was allegedly assaulted in the police custody on Monday. Talib alleged that he was being targetted for championing the cause of the nomad community and received life-threatening injuries during the torture. The police claimed he had attempted suicide while in custody.
Earlier, his estranged wife Nusrat Bibi had accused him of domestic violence and dowry demands and a case was filed against him in June. Claiming he had been framed, the activist filed a petition before the Jammu and Kashmir High Court.
But despite the court's orders against any arrest, Talib was arrested by a team of Samba Police on July 31 from Tral in the domestic violence case, according to daily diary report at Police Station Tral.
The same day, police in Samba, 300 km from Tral, claimed that Talib was arrested from the area in a rape case that was filed earlier that day.
Pointing to the distance between Tral and Samba, Talib’s friend Iqbal Ahmed said, “In Tral, they arrested him in a dowry case. Exactly at the same time, they are showing Talib in Samba, where he is arrested on rape charges. Isn't this an open fraud by police?”
Talib Hussain's relatives claim the rape allegations were false because he was in Srinagar for more than two months and never visited Jammu during that period. As witnesses, they cite two police guards, who had been deployed for his protection.
“The complainant is a close relative of Talib's estranged wife. When they failed to prove that he was to be blamed in a domestic violence and dowry case, they tried implicating him in rape case,” said Wajid Khatana, a nomad activist.
“Talib was first beaten and arrested on January 20 when he led a protest in Kathua. The right wings groups assaulted him during a live TV debate in Udhampur,” he added.
The nomads claim Talib Hussain became the target of police and right wing groups in Jammu ever since he started campaign for justice in Kathua case, in which an eight-year-old girl from the Bakerwal community was kept in captivity, gang-raped, drugged, tortured and murdered. The horrific details of the case had triggered nationwide outrage. The accused, however, got huge support from right wing groups, once it emerged that the crime was committed to scare off the nomads from Hindu-majority areas in Jammu.
The Crime Branch of Jammu and Kashmir Police had taken up the probe into the case on January 22 and filed a charge-sheet against seven accused and a separate charge-sheet against a juvenile accused in a court in Kathua district on April 9.
The minor girl was allegedly abducted, drugged and raped inside a place of worship before being killed, the police had alleged. The top court has already transferred the trial from Kathua, Jammu and Kashmir, to Pathankot in Punjab and ordered a day-to-day “in-camera” trial of the case.
The Supreme Court had on July 9 ordered shifting of seven accused facing trial in the Kathua gang-rape and murder case from sub-jail, Kathua, to Gurdaspur in Punjab.



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