For a fair trial: on shifting the Kathua rape and murder case

In shifting the case of the abduction and gang rape of an eight-year-old girl in Kathua district in Jammu and Kashmir to Pathankot in the neighbouring State of Punjab, the Supreme Court has taken the first necessary step towards ensuring a fair trial. It is unfortunate that despite the horrific nature of the crime, which took place over several days in January, when the girl from the nomadic Bakherwal community went missing, some sought to see the incident along sectarian lines. Contradictions on communal and political lines came to the fore. The formation of a Hindu group in support of those arrested by the J&K Police Crime Branch, and the action of some lawyers in Kathua in heckling the police when they came to file the charge sheet, contributed to the impression that the atmosphere in the town is too vitiated for the conduct of a fair trial. In addition, sections of society, including political parties and lawyers, demanded that the Crime Branch investigation was not fair and that it should be handed over to the Central Bureau of Investigation. Fortunately, the Supreme Court has not countenanced this demand. Considering that the investigation was conducted in a fairly quick manner and the charge sheet was ready within two months, there is no legal reason for the probe to be taken out of the hands of the police and handed over to another agency. In the normal course, only deliberate inaction on the part of the State police is a reasonable ground for shifting the probe to another agency.

The transfer of a criminal trial from one State to another is an extraordinary step that the Supreme Court alone is empowered to take. The State out of whose jurisdiction the case is taken may have reason to feel aggrieved as it is seen as a reflection of its handling of law and order. However, in this case, the reason for transferring the Kathua case to Pathankot is no reflection on J&K. It has been done solely in the interest of a fair and speedy trial. The court has reasoned that for a genuinely fair trial, “there has to be a free atmosphere, where the victims, the accused and the witnesses feel safe”. In addition, the court has passed directions necessary to ensure a speedy trial too: day-to-day hearings, no unnecessary adjournments, and no delay between the examination of witnesses and their cross-examination. In a departure from the rule that the prosecutor is appointed by the State to which a case is transferred, the apex court has allowed J&K to appoint a public prosecutor to conduct this case. The trial will also be in camera. The court’s directions should inspire confidence in the justice system and instil courage among the witnesses. It is now up to the investigators and prosecutors to ensure that the guilty are punished.

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Printable version | Nov 21, 2021 3:56:31 AM | https://www.thehindu.com/opinion/editorial/for-a-fair-trial/article23816267.ece

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