The Supreme Court on Monday transferred the Kathua minor rape and murder case to Pathankot district in Punjab.
A Special Bench of Chief Justice of India Dipak Misra and Justices D.Y. Chandrachud and Indu Malhotra transferred the case out of Jammu and Kashmir with the consensus of the victim's family, the Jammu and Kashmir government and the accused.
"Fair trial is sacrosanct principle under Article 21 [fundamental right to life] of the Constitution," the court observed in the order.
It said fair trial and fear were contradictory concepts and should not be allowed to coexist. It said fair trial means an "atmosphere where the victims, accused persons and witnesses feel safe and they do not suffer from any phobia from attending court".
Issuing a series of directions, the court ordered that the trial should be held in camera. This is to protect the witnesses and make the accused "feel safe".
The court ordered the Pathankot District Judge to conduct the trial and not delegate it to another court. The trial shall be held under the provisions of the Ranbir Penal Code, which is applicable in Jammu and Kashmir.
Documents to be translated from Urdu to English
The documents would be translated from Urdu to English. The apex court allowed the J&K government to appoint a special public prosecutor and continue providing protection, transport and all other ancillary facilities to the victims, lawyers and accused during the trial.
The court refused to examine a separate plea to hand over the investigation to the CBI, saying it was dealing with only a petition seeking transfer of the case for the purpose of fair trial.
Chief Justice Misra said the investigation had been done and charge sheet filed by the J&K Crime Branch on April 9 and it was always open for supplementary investigation, if required. "When charge sheet is filed, why should we want another agency?" Chief Justice Misra said.
Apex court to monitor trial
The court said it would continue to monitor the trial, so no other court across the country has jurisdiction to entertain complaints or appeals from the Pathankot District Judge's orders.
The court ordered a fast-track trial on a day-to-day basis with no adjournments. Chief and cross examinations of a witness should be done without break and there would be no adjournments.
There are a total of 221 witnesses in the case.
The next date of hearing in the Supreme Court has been fixed on July 9.
The court ordered all the records of the case to be sent from the Kathua District and Sessions Judge's court - where the case was committed for trial - to the Pathankot trial court in a sealed cover under police escort. The hearing saw the court accepting a suggestion by the J&K government, represented by senior advocate Gopal Subramanium, that it would be better to transfer the trial outside Kathua district rather than out of J&K itself.
The court's decision was fortified after the J&K High Court-appointed judicial report from the Kathua District Judge "indicated" that the local lawyers, demanding a CBI probe, had obstructed the administration of justice by not allowing the Crime Branch team to file the charge sheet in court. The court also did not heed to submissions raised by one of the accused's lawyer that the investigation by the Crime Branch itself was "botched-up" and a transfer of the case would not ensure fair trial. "We are not going to comment on the investigation. We are here for the fundamental concept of fair trial for both victims and the accused," Chief Justice Misra responded.
Four adjoining districts suggested
During the hearing, four adjoining districts - Udhampur, Samba, Jammu and Rambal - near Kathua were considered for transferring the trial. However, counsel for victims and accused could not reach an agreement on any of them owing to their distance from Kathua. Finally, they all agreed on Pathankot, which is 30 km away from Kathua but over the border in Punjab. The victim's father had wanted a transfer to Chandigarh, but the accused had protested. Senior advocate Indira Jaising, for the victim's father, argued that “the police have done a good job” and the demand for a CBI probe was an “attempt to unscramble a scrambled egg”. Ms. Jaising had argued that the demand for a CBI probe had more to do with efforts to influence the State police investigation, which led to the arrest of eight men. These accused include policemen who are suspected of destroying evidence. A 15-page charge sheet has been filed in this case.
