Kathua witness framed in rape case: cousin

The Supreme Court on Wednesday asked the J&K government to respond to a plea by a cousin of key Kathua rape case witness and social activist Talib Hussain, that he has been framed in a rape case and tortured in custody by the State police.

A three-judge Bench, led by Chief Justice of India Dipak Misra, issued notice, but not before questioning why a
habeas corpus
(show the body) petition was filed in a case in which the arrest was 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.

“There has been a complaint that he has attempted to commit rape,” Justice D.Y. Chandrachud remarked.

Ms. Jaising explained that the basis of the petition was not whether he had been lawfully arrested or not, but whether he had been tortured in custody or not.

The senior advocate referred to the historic
Sunil Batra
judgment to contend that the arrest and remand might be initially lawful, but the subsequent use of “third degree” torture by the police in custody made it illegal and thus ahabeas corpusplea would lie.

The petition is filed by Mumtaz Ahmed Khan, cousin of Mr. Hussain, contending that the police should produce him in court and call for his medical records while he was in custody.

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