Rejecting Plea, J&K High Court Asks Politician to 'Prove' Detention in Proper Forum

The order was issued after the police said Muzaffar Ahmad Shah and his family were " neither under house arrest nor had their liberty been curbed".

New Delhi: The Jammu and Kashmir (J&K) high court dismissed a plea by a politician in which he said he was “illegally and unlawfully detained” by asking him to first “prove [his] arrest by evidence” before a proper forum, according to the Indian Express.

Awami National Conference (ANC) leader Muzaffar Ahmad Shah had moved the court on September 11, along with his family, alleging that they had been “illegally and unlawfully detained and kept under house arrest” at their residence in Srinagar since August 5.

In the first order regarding the detention of politicians and prominent personalities since the dilution of Article 370 by the Centre, the J&K high court directed Shah to “prove (his) arrest by evidence” before a “proper forum” and in “appropriate proceeding”.

Shah, who is the son of former J&K chief minister Ghulam Mohammed Shah, and his family said in their plea that their “detention” had violated, “with impunity” fundamental rights guaranteed under the Constitution. According to the Indian Express, other petitioners in the plea include Ghulam Shah’s wife Begum Khalida Shah and Mustaffa Kamal, son of Sheikh Abdullah.

On Tuesday, the single bench of Justice Ali Mohammad Magrey dismissed the plea, terming it “not maintainable and unnecessary.” The court said it was “leaving the petitioner free to take appropriate remedy available to him under the law before appropriate forum.”

The court was informed by the Jammu and Kashmir police on October 23 that the family was neither under house arrest nor had their liberty been curbed. On that day, Justice Magrey said that after inspecting submissions of the government’s advocate and the police, the court “is satisfied that the instant petition is unnecessary and, as such, liable to be dismissed”.

The court gave Shah and the other petitioners a chance to respond, which they did on Tuesday. In his reply, Shah said he was “legally entitled to prove his case and needs to be granted permission to produce evidence”, according to LiveLaw. Among the evidence he sought to submit were newspaper clippings that reported him being under detention.

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Shah also said that after the J&K police told the court that he and his family were not under house arrest, they tried to “move out of their house” on October 24. They were prevented and stopped by a “huge contingent” of police, they said. Shah said that two sitting MPs – Hasnain Masoodi and Mohammed Akbar Lone – witnessed the police preventing his family from leaving their residence.

Responding to the affidavit and the plea to produce evidence and witnesses, Justice Magray observed, “In its extra ordinary writ jurisdiction under Article 226 of the Constitution of India, a Writ Court is neither to hold an enquiry into the allegations made in a petition, nor take oral evidence.”

The judge added that in writ proceedings, “a fact is to be supported and proved by authentic documentary evidence”, which “press cuttings” are not.

He added, “Further, a Writ Court cannot hold enquiry into disputed facts. Once facts are disputed, the writ petition is rendered not maintainable. In such circumstances, the only option available to a Writ Court is to dismiss the writ petition, leaving the party concerned free to take recourse to appropriate remedy.”

He rejected the plea, saying:

“In the instance case, the respondents (police) have clearly disputed the statement made in the writ petition about the house arrest of the alleged detainees. The petitioner asserts that he can prove the arrest by evidence. This court will not debar him from doing so but that can be done only before the proper forum and in appropriate proceedings.”