Supreme Court: Taking note of the seriousness of the issue relating to the abduction, rape and murder of an eight-year-old girl in Kathua District of J&K in the month of January, the bench of 3-judge bench of Dipak Misra, CJ and Dr. DY Chandrachud and Indu Malhotra, JJ transferred the trial of the matter from the District & Sessions Judge, Kathua to the District & Sessions Judge, Pathankot situate in the State of Punjab.
Senior Advocate Indira Jaising, appearing for the family of the victim, had argued before the Court that 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 was not possible at Kathua.
Stating that 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 Court issued the following directions while transferring the matter to Pathankot:
- The learned District & Sessions Judge, Pathankot shall himself take up the trial and not assign it to any Additional Sessions Judge;
- The learned District & Sessions Judge, Pathankot shall 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 trial shall be held in camera so that the witnesses feel protected and the accused persons feel safe;
- As this Court is monitoring the matter, no court shall entertain any petition pertaining to this case; The transferee court shall proceed under the Ranbir Penal Code as that applies to the State of Jammu & Kashmir;
- 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 State of Jammu & Kashmir shall provide requisite number of interpreters as directed by the learned 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;
- 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 State of Jammu & Kashmir is granted liberty to appoint the Public Prosecutor for prosecution of the case;
- 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.
Emphasising on the concept of fair trial, the Court said:
“In the instant case, direct victims are the family members of the deceased, although ultimately collective is the victim of such 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. Fear and fair trial are contradictory in terms and they cannot be allowed to co-exist.”
The Court also reiterated that the protection granted by it to victim’s family & lawyers via order dated 16th April, 2018, shall continue and shall not be varied till the trial is over.
[Mohd. Akhtar v. State of Jammu & Kashmir, 2018 SCC OnLine SC 494, order dated 07.05.2018]
