The Supreme Court Monday transferred the trial in the sensational Kathua gangrape and murder case of an eight-year-old girl from Jammu and Kashmir to Pathankot in Punjab, but refrained from handing over the probe to CBI saying there was no need as the investigation has been conducted and the charge sheet filed.
The apex court, which ordered day-to-day “in-camera” trial in the case, said there was a need to shift the trial outside the state as “fear and fair trial” were contradictory and “cannot be allowed to co-exist.”
A bench headed by Chief Justice Dipak Misra also vacated the stay granted by it earlier on the trial in the case and said it should be fast-tracked to ensure that there was no delay in adjudication of the matter.
The bench, also comprising Justices D Y Chandrachud and Indu Malhotra, allowed the Jammu and Kashmir government to appoint a special public prosecutor (SPP) to conduct the trial and ordered continuation of security provided to the victim’s family members, a family friend and the lawyer representing them.
It also said that trial would be carried out in accordance with the provisions of Ranbir Penal Code, which is applicable in Jammu and Kashmir, and asked the state to get statements of witnesses and records of the case translated from Urdu to English.
The bench listed the matter for further hearing on July 9.
While the victim’s father had sought transfer of the trial out of Kathua, preferably to Chandigarh, and reposed faith in the probe by the J and K police, the two accused had moved the court with a diametrically opposite prayer seeking trial at Kathua and probe by the CBI.
Emphasising that the trial must be fair to both the victim’s family and the accused, the bench directed the state to facilitate transportation and accommodation to the victim’s family, lawyers and witnesses from Kathua to Pathankot.
The apex court, while asking the district and sessions judge at Pathankot to personally undertake the trial proceedings and not assign it to other session judges, said it would monitor the progress of trial in the case and no other courts should entertain any other plea related to the matter.
“Needless to say, a fair trial is a sacrosanct principle under Article 21 of the Constitution and fair trial’ means fair to the accused persons, as well as to the victims of the crime. In the instant case, direct victims are the family members of the deceased, although ultimate collective is the victim of such crime,” the bench said.
“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. Fear and fair trial are contradictory in terms and they cannot be allowed to co-exist,” the court said.
“Concept of fair trial’, needs no special emphasis and it takes within its sweep the conception of a speedy trial and the speedy trial meets its purpose when the trials are held without grant of adjournment as provided under the provisions contained in section 309 CrPC,” it said.
The decision to transfer the trial from Kathua in Jammu to Pathankot came after deliberations during which the names of several districts in the state — Udhampur, Jammu, Ramban, Sambha, Reasi, Poonch, Rajouri and Doda — were considered.
Initially, there was a consensus on transferring the trial to Ramban but the counsel appearing for two accused objected to it saying that Ramban was far from Kathua and hit by terrorism and there was also a “polarisation of the community”.
At the outset, senior advocate Indira Jaising, appearing for the victim’s father, said a charge sheet has been filed in the case and further investigation was going on.
Jaising, while contending that they were satisfied with the probe conducted by the crime branch of the J and K police, said entire case was given a “political colour” by the accused despite the fact that it was a matter relating to rape and murder of a minor girl.
Senior advocate Gopal Subramanium, appearing for Jammu and Kashmir, said the police has already filed a detailed charge sheet and further probe was being carried out and the question was about having an atmosphere to hold a fair trial in Kathua.
“We would like a fair trial to take place. Further investigation is going on at a rapid pace,” he said, adding that the police opposed the transfer of case outside the state. “We undertake to give protection to all the counsel in the case also. The investigation conducted was sound one and it was done in record time,” he said and suggested that trial the could be transferred to Jammu, Sambha, Udhampur or Sambha.
Senior counsel Meenakshi Arora, appearing for the accused, alleged that the probe was “botched up” and hence a fair trial cannot be expected.
The bench then observed “after the investigation is conducted and charge sheet is filed, why should there be any need to transfer investigation to other agency.” The victim, an eight-year-old girl from a minority nomadic community, had disappeared from near her home in a village close to Kathua in the Jammu region on January 10. Her body was found in the same area a week later.
The state police has filed the main charge sheet against seven persons and a separate charge sheet against a juvenile in a court in Kathua district.