Lack of fair trial will see Kathua case shifted outside: SC
BCI panel gives clean chit to Kathua lawyers' body, says CBI probe be done
New Delhi, Apr 26 : In a stern warning, the Supreme Court today said it would transfer the Kathua gangrape and murder case from the local court in Jammu and Kashmir in the “slightest possibility” of lack of fair trial, saying the “real concern” was to hold proper prosecution.
The observations by a bench headed by Chief Justice Dipak Misra came amid a report filed by a Bar Council of India (BCI’s) committee which supported the demand of the Jammu lawyers’ body for a CBI probe in the matter saying the bar association in Kathua had not obstructed the police or the counsel representing the victim’s family in any manner.
The apex court, after perusing the report, said it would not “digress” from the main issue of ensuring a fair trial, not only for the accused but also for the victim’s family.
On the issue of alleged obstruction by lawyers in administration of justice in the case, the bench made it clear that if the advocates were “at fault, they will be dealt with in accordance with the law”.
The bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said its constitutional obligation was to ensure a fair trial and proper legal assistance to the victim’s family as well as the accused, along with protection to them and their lawyers.
“If we find a slightest possibility of lack of fair trial, we will transfer the case (out of Kathua),” the bench said, adding, “the real concern of this court is to see that a fair trial is done and the trial is fair to the accused as well as the family members of the victim”.
At the outset, the BCI filed in a sealed cover the enquiry report of its committee headed by former High Court judge Justice Tarun Agarwal, on the issue of alleged obstruction by lawyers in the case at Kathua.
The report said the local lawyers’ body “had neither obstructed the Crime Branch of Jammu and Kashmir police from filing the charge-sheet in the court, nor had the lawyers obstructed advocate Deepika Singh Rajawat,” who is representing the victim’s family, from appearing in the matter before the High Court there.
The panel, while claiming that media had “misrepresented” the reports, said the demand of Jammu & Kashmir High Court Bar Association, Jammu, and Kathua District Bar Association for a CBI probe in the matter “appears to be justified”.
However, advocate Shoeb Alam, appearing for the state, opposed the committee’s report and maintained that the police team was heckled allegedly by the lawyers, due to which they could not file the charge-sheet in the trial court.
Alam referred to the separate reports of the High Court and a district judge at Kathua, claiming that these had given scathing finding of “obstruction” of police officers and the justice administration system.
To this, the bench observed, “Let the main issue be not missed. Fair investigation, fair trial, appropriate legal guidance and representation of both the accused and the victim’s family has to be there.”
“Instead of getting into what the BCI report says and the lawyers say, let us not digress from the real issue. The real issue is that how can we achieve justice,” it said.
Senior lawyer Indira Jaising, appearing for the victim’s father, told the bench that their prayers were for transfer of case from Kathua to Chandigarh and monitoring of its trial by the apex court.
“Monitoring of trial means we can fast-track the trial,” the bench said, adding that fast-tracking of case does not mean that proper opportunity should not be granted in accordance with the procedures to the accused and the victim’s family.
“Let us not get into what had happened in the bar. Let us stick to the victim’s case,” the court said and added that protection granted to the lawyer of the victim’s family shall continue.
The bench said the issue whether lawyers had allegedly created obstructions would be dealt with by it separately as it would take up the case of victim first and posted the matter for hearing on July 30.
Earlier in the day, the bench agreed to consider a separate plea filed by two accused seeking that the trial in the case be held in Jammu and the probe handed over to the CBI.
The court considered the plea of the accused, Sanji Ram and Vishal Jangotra, that they be impleaded as parties to the petition filed by the victim’s father.
The eight-year-old’s father had moved the apex court earlier, apprehending threat to the family, a friend and their lawyer Rajawat.
Expressing satisfaction with the probe conducted by the Jammu and Kashmir Police in the case, the victim’s father had sought transfer of trial from Kathua court to Chandigarh. However, the accused are asking for the opposite, seeking a CBI probe in the case and trial in Kathua district itself.
The child from a minority nomadic community had disappeared from near her home in a village near Kathua in Jammu region on January 10. Her body was found in the same area a week later.
The state police’s Crime Branch, which probed the case, filed the main charge-sheet against seven persons and a separate charge-sheet against a juvenile in a court in Kathua district last week. The charge-sheet revealed chilling details about how the girl was allegedly kidnapped, drugged and raped inside a place of worship before being killed.
J&K opposes plea for transfer of trial
New Delhi, Apr 26 (PTI) The Jammu and Kashmir government today opposed in the Supreme Court a plea filed by the father of the victim in the Kathua case for transfer of trial to Chandigarh saying the state was committed to ensure a “fair, expeditious and impartial trial”.
In an affidavit, the state said that the prayer for transfer of trial was “misconceived” and the court would have to consider that prosecution witnesses in the case were residents of Jammu and Kashmir and shifting of trial outside the state would cause “great inconvenience”.
It also denied the allegations that prime accused Sanjhi Ram was supported by government officials merely because he was a retired Revenue officer.
The affidavit was filed on a day when a bench headed by Chief Justice Dipak Misra said that its “real concern” was to see that a fair trial was conducted in the case.
“The real concern of this court is to see that a fair trial is conducted and ‘fair trial’ means fair to the accused as well as to the victims. In the present case, the victims are the family members of the deceased,” the bench, which also comprised justices A M Khanwilkar and D Y Chandrachud, said while hearing the Kathua matter.
“Apart from the fairness in procedure, the concept of speedy trial gets attracted. That apart, it is to be seen that both the sides are given protection and, if necessary, requisite legal assistance is provided. Keeping these aspects in view, we think it appropriate that the relief in the said case will be addressed first,” the bench said.
The affidavit by the state, filed through advocate Shoeb Alam, said, “the state is competent and fully equipped to provide adequate security to the victim’s family, witnesses of the case, judges and/or any other stake holder in the case”.
“Every specific threat/credible request for protection has been duly responded by the state by providing security. The state, being aware of its constitutional duty, is duty bound and committed to ensure that the trial is not affected in any manner,” it said.
“The requisite state machinery will be put into motion to ensure the conduct of a fair, expeditious and impartial trial in the matter so that justice is dispensed to the victim while the human rights of the victim’s family as well as the accused are protected in accordance with the law,” the affidavit said.
It further said that no grounds have been raised in the plea which may warrant transfer of trial outside the state.
The state has said that Jammu and Kashmir has its own penal law, the Ranbir Penal Code, procedural law and law of evidence and transfer of trial outside the state might not be practical and may end up in creating more anomalous situation.
It said that during the hearing before the top court, the petitioner’s counsel had reposed faith in the comprehensive probe carried out in the case by a special investigation team of the Crime Branch of Jammu and Kashmir Police.
“As such, the victim’s family itself is satisfied with the probe conducted by the SIT,” it said, adding that pursuant to the court’s order, the advocate representing the victim’s family and a friend of the family have been provided security by the state.
It also said that security has been beefed up at the Juvenile Home, where an accused is currently lodged.
“The allegations pertaining to the support by government officials to the accused Sanjhi Ram, merely because he was a retired revenue official, upon which the petitioner apprehends that the trial will not be conducted in a fair and transparent manner is false and is denied,” the affidavit said.
It said that a fair and impartial probe was done in the case, and even the policemen, who had allegedly committed the offences, were arrested and named in a charge-sheet.
The state maintained its stand that police officers were heckled and prevented, allegedly by protesting lawyers, from reaching the courtroom for filing a charge-sheet in the case.
The victim’s father had moved the apex court apprehending threat to the family, a friend and their lawyer Deepika Singh Rajawat.
Expressing satisfaction with the probe conducted by the Jammu and Kashmir police in the case, the victim’s father had sought transfer of trial from Kathua court to Chandigarh.
His petition is scheduled to come up for hearing tomorrow.
