NEW DELHI, Apr 13:
Taking strong note of some lawyers obstructing the judicial process in the Kathua gangrape and murder case, the Supreme Court today initiated a case on its own record saying such impediment “affects the dispensation of justice and would amount to obstruction of access to justice”.
The top court said that it is a settled law that a lawyer who appears for a victim or accused cannot be prevented by any bar association or group of lawyers, for it is his duty to appear in support of his client.
A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud was also critical of the Jammu High Court Bar Association, which had passed a resolution not to attend the courts saying “it is the duty of the bar association as a collective body and they cannot obstruct the process of law”.
“If a lawyer who is engaged, is obstructed from appearing in the court or if his client is deprived of being represented in the court when he is entitled to do so in a lawful manner, that affects the dispensation of justice and would amount to obstruction of access to justice and interference with the administration of justice,” the bench said in its order.
The top court initiated the case suo moto after some lawyers brought to its notice that the members of the Kathua District Court Bar Association at Jammu & Kashmir, are obstructing the lawyer who is appearing on behalf of the family of the victim in the court.
Advocates P V Dinesh, Shobha and Gopal Shankarnaraynan informed the court that a lawyer appearing for the victim’s family was being threatened and the obstruction has support of High Court Bar Association.
The top court said, “It is settled in law that a lawyer who appears for a victim or accused cannot be prevented by any bar association or group of lawyers, for it is the duty of a lawyer to appear in support of his client, once he accepts the brief.”
The bench issued notice to the Bar Council of India, the State Bar Council, High Court Bar Association at Jammu and Kathua District Bar Association and sought their replies by April 19.
“We hope and trust that when we are issuing notice, the members of the bar associations shall conduct themselves and would not obstruct the smooth functioning of the justice delivery system which includes the presence of the persons aggrieved or accused in court or for that matter the presence of investigating agency and the witnesses,” the bench said.
Standing counsel for Jammu and Kashmir Shoeb Alam, who was called to the CJI court, informed that the police had yesterday filed the charge sheet before the magistrate at his home.
He strongly opposed the plea of lawyers that the case be handed over to the CBI for further investigation and said that thorough probe was being carried out by the State Crime Branch.
Alam said that it is already a settled law that investigation cannot be transferred to the CBI after the charge sheet has been filed in the court.
“Police team was heckled by the lawyers and prevented from submitting the charge sheet before the Chief Judicial Magistrate court in Kathua,” Alam said.
He said that subsequently the police had to produce the eight accused in the case and submit the charge sheet at the residence of the Magistrate.
Alam informed the court that police have also registered a FIR against some lawyers for attempting to prevent police from filing charge sheet in Kathua rape case.
Earlier in the day, the top court had asked lawyer P V Dinesh to bring materials on record to take judicial note of a strike call given by Kathua and Jammu and Kashmir Bar Associations in relation to the gangrape and killing of the eight-year-old girl in Jammu region.
Dinesh referred to the “unfortunate” decisions of the local bar that had allegedly come in support of the people who had gangraped and killed the minor in Kathua.
“Something must come on record. We have nothing on record,” the bench had said in the morning, when the matter was first mentioned.
The minor girl had disappeared from near her home in the forests next to Rassana village in Kathua, on January 10.
Her body was found in the same area a week later.
The Crime Branch of police which probed the case filed a main charge sheet against seven persons and a separate charge sheet against a juvenile in a court in Kathua district earlier this week.
Meanwhile, the Delhi High Court today frowned upon media houses for disclosing the identity of an eight-year-old girl who was gang raped and killed in Kathua district of Jammu and Kashmir, and asked why action be not taken against them for “injustice to the privacy and dignity of the victim”.
The High Court also prohibited the media from revealing any further identity of the victim by any means, including name and photographs for which 12 media houses, comprising print and electronic, were issued notices for the “unfortunate” and “extremely distressing” manner of reporting.
A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar, which on its own took cognisance of the media reports, said that there was a need for the media to “circumspect on reporting to the extent it is in contravention of the law”.
“Freedom of press has to be balanced with integrity of judicial process and must comport with the requirement of the law,” the court said.
It issued notices to 12 media houses and prohibited them “from effecting any publication including the name, address, photograph, family details, school details, neighbourhood or any other particulars which may have an effect of leading to the disclosure of the identity of the child victim”.
The bench said that it was restricting issuance of notice to only the 12 entities as it did not have information of the other media houses which have effected similar publications and when the details would be known, notices would be issued to them as well.
The court also issued notices to the Centre, the National Commission for Protection of Child Rights (NCPCR), the National Commission for Women (NCW) and the Delhi Commission for Women (DCW) and directed them to “take steps to prohibit any disclosure of the name, address, photograph, family details, school details, neighbourhood or any other particulars which may have an effect of leading to the disclosure of the identity of the child victim, by an person(s) or authorities”.
While issuing the directions, the bench said it was “pained” by the fact that “no authority including the NCPCR, the NCW or the DCW have even reacted to this terrible development”.
The bench, later, orally asked the Delhi State Legal Services Authority (DSLSA) to ascertain the background of the victim and whether there was any victim compensation scheme available in Jammu and Kashmir similar to the one existing in Delhi.
In its nine-page order, the court said, “The manner and contents of reporting actually also does injustice to the privacy and dignity of the child victim” and also violates Section 23 of the Protection of Children from Sexual Offences (POCSO) Act as well as Section 228A of the Indian Penal Code.
Section 23 of POCSO law lays down the procedure for the media to report cases of sexual offences against child victims and section 228A of IPC deals with disclosure of identity of victims of such offences. The penal law provides for jail term of two years with a fine.
The court said that the violation of Section 228A is treated as an offence against public justice.
During the hearing in the morning, the court, while referring to the media reports, had said “A whole media trial is going on.” (PTI)
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