In-camera trial to be conducted under RPC
Excelsior Correspondent
NEW DELHI, May 7: In a major development in the Kathua gang rape and murder case, Supreme Court has vacated the stay on the trial and transferred it outside Jammu and Kashmir to Pathankot in Punjab. Moreover, the Apex Court has directed that the trial should be held in-camera and conducted on day-to-day basis to avoid any delay.
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After hearing battery of lawyers for the petitioner-Mohd Akhtar and the respondents, Supreme Court Bench comprising of Chief Justice Dipak Misra, Dr Justice D Y Chandrachud and Justice Indu Malhotra directed that the matter that has been committed to the court of the District & Sessions Judge, Kathua, shall stand transferred to the file of the District & Sessions Judge, Pathankot situated in the State of Punjab.
“The District & Sessions Judge, Kathua shall send all the materials relating to the charge-sheet and other documents in sealed covers through special messengers with the assistance of the police force to the transferee court, which shall proceed under the Ranbir Penal Code as that applies to the State of Jammu & Kashmir”, the Apex Court further directed.
The statements of the witnesses that have been recorded in Urdu language shall be translated to English so that the transferee court does not face any difficulty in conducting the trial, the Apex Court said, adding “the State of Jammu & Kashmir shall provide requisite number of interpreters as directed by the District & Sessions Judge, Pathankot so that the deposition of the witnesses can be properly recorded and translated copies thereof can be provided to the accused persons”.
The Supreme Court further said, “it shall be the duty of the State of Jammu & Kashmir to transport the witnesses to Pathankot and provide all other necessary facilities, including food, etc. so that the witnesses do not face any difficulty. The accused persons shall also be similarly treated so that they do not feel that solely because they are accused persons, they are presumed to be guilty, for it is the settled principle that they are innocent till they are found guilty”.
The Apex Court has directed the District & Sessions Judge, Pathankot to himself take up the trial and not assign it to any Additional Sessions Judge. Moreover, District & Sessions Judge, Pathankot has been directed to fast-track the trial and take it up on day-to-day basis so that there is no delay in trial.
“The examination-in-chief and the cross-examination of witnesses shall be in a continuous manner and for no reasons whatsoever the same shall be deferred. The State of Jammu & Kashmir is granted liberty to appoint the Public Prosecutor for prosecution of the case”, the Supreme Court said, adding “the trial shall be held in camera so that the witnesses feel protected and the accused persons feel safe”.
It has also been made clear by the Apex Court that no court shall entertain any petition pertaining to this case; and the juvenile, who is facing the trial, shall be dealt with in accordance with law and he should be given all special care and protection as per the command of the law.
While vacating the order staying the trial before the Kathua court, the Supreme Court Bench said, “the protection that we had granted vide order dated April 16, 2018, shall continue and shall not be varied till the trial is over”. The Apex Court has ordered listing of the matter on July 9, 2018.
Earlier, the Supreme Court Bench observed, “as asserted in the writ petition, since there have been some unwarranted situations that have occurred in and outside the Kathua Bar Association, the locality in question, the involvement of many groups and various other aspects, a fair trial is not possible at Kathua”.
“Though various submissions were advanced by the counsel for the petitioner the crux of the matter is how to proceed with the trial so that it is effective regard being had to the fundamental principle of fairness of a trial”, the Supreme Court said.
“Needless to say, a fair trial is a sacrosanct principle under Article 21 of the Constitution of India and a ‘fair trial’ means fair to the accused persons, as well as to the victims of the crime. The fair trial commands that there has to be free atmosphere where the victims, the accused and the witnesses feel safe. They must not suffer from any kind of phobia while attending the court”, the Apex Court said.
Earlier, Senior advocate Gopal Subramanium, appearing for the State, said the investigation was conducted by the Crime Branch of Jammu and Kashmir Police in a “record time” and being the State, they know that they have to be responsible and conduct a fair probe and ensure fair trial in the case.
Referring to a report given by the District and Sessions Judge of Kathua to the Jammu and Kashmir High Court, he said it showed that attempts were made to interfere in the process of filing of charge sheet by the police at the court there.
Subramanium, who was assisted by State’s Advocate General Jahangir Iqbal Ganai and standing counsel Shoeb Alam, said the case has been committed to the court of District and Session Judge after filing of the charge sheet before the magistrate, but they were opposing the transfer of case outside the State.
“We would like a fair trial to take place. Further investigation is going on at a rapid pace,” he said, adding that since the time the Apex Court had taken cognisance of the matter, everybody has taken a position that they do not want any interference in the administration of justice.
“We undertake to give protection to all the counsel in the case. The investigation conducted was sound one and it was done in record time,” he said and suggested that the trial could be transferred to Jammu, Samba, Udhampur or Ramban.
Senior advocate Indira Jaising, appearing for victim’s father, opposed the suggestion to transfer the trial to Jammu, Samba, Udhampur but said they were agreed to transfer of case to Ramban.
When the counsel appearing for accused raised objection on transfer of trial to Ramban, the name of district Reasi also cropped up.
Later, Ganai said the trial could be transferred to adjoining districts like Poonch, Rajouri and Doda.
However, after much deliberations, the parties agreed to the transfer of the trial to Pathankot in Punjab and the court ordered accordingly.
Meanwhile, Chief Minister Mehbooba Mufti said the Supreme Court decision to shift the trial to Pathankot would boost the morale of the State Police, which had left “no stone unturned” to ensure that the eight-year-old’s family gets justice.
“I welcome today’s decision by the Supreme Court in the Kathua case. This will go a long way to boost the morale of our @JmuKmrPolice force who in the face of great adversity have left no stone unturned to ensure that the deceased’s family gets justice,” Mehbooba said in a tweet.
Meanwhile, the father of the eight-year-old girl welcomed the Supreme Court decision to transfer the case to Pathankot and said he has full faith in the judiciary.
“We only want justice…I have full faith in the judiciary and the Government,” he said over the phone from Ramban district where he is camping along with other members of his family.
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