The Supreme Court on Monday said that the trial in the gruesome Kathua gangrape and murder case be shifted out of Jammu and Kashmir to neighbouring Punjab, holding that holding fair trial was "sacrosant" and cannot be allowed to "co-exist" with fear.
Directing day-to-day "in-camera" trial, the apex court asked the district and sessions judge at Pathankot to personally undertake the trial proceedings.
The order came on a petition by the victim's father seeking transfer of the case to Chandigarh on the ground that the family was receiving death threats and that they feared for their lives
Vacating the stay granted by the top court on the trial in Kathua, a bench headed by Chief Justice Dipak Misra refrained from handing over the probe to the CBI and directed that the trial be fast-tracked to ensure there was no delay as the investigation has been conducted and charge sheet filed.
The state police's Crime Branch, which probed the case, has 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 apex court bench, also comprising Justices D Y Chandrachud and Indu Malhotra, allowed the J and K 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.
The top court also said that the trial would be carried out in accordance with the provisions of Ranbir Penal Code, which is applicable in J and K, and asked the state to get statements of witnesses and records of the case translated from Urdu to English.
The victim, who belonged to 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 girl's father welcomed the Court decision and said he has full faith in the judiciary.
We only want justiceI have full faith in the judiciary and the government, the father told PTI in Jammu over phone from Ramban district where he is camping along with other members of his family.
J and K Chief Minister Mehbooba Mufti said the court decision would boost the morale of the state police, which, she said had left "no stone unturned" to ensure that the victim's family gets justice.
The apex court emphasised that the trial must be fair to the victim's family and the accused and said that the state would facilitate transportation and accomodation to the victim's family, lawyers and witnesses to Pathankot, about 30 km from Kathua.
The court while asking the district and sessions judge at Pathankot not to assign the case to other session judges said it would monitor the progress of trial and that 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 of India and a 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 ultimately collective is the victim of such crime," it said.
"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 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 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 in the case objected to it saying that Ramban was far away from Kathua and was hit by terrorism and there was "polarisation of the community" there also.
At the outset, senior advocate Indira Jaising, appearing for victim's father, contended that they were satisfied with the probe conducted by the crime branch of J and K Police but the 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 J and K government, said that police has already filed a detailed charge sheet and further probe was being carried out and the question was about having an atmosphere for fair trial at Kathua.
"We would like a fair trial to take place. Further investigation is going on at a rapid pace," he said, adding that they were opposing the transfer of the case outside the state.
Senior counsel Meenakshi Arora, appearing for the accused, alleged that the probe into the case was "botched up" and when there was no fair investigation, fair trial cannot be expected.
Accused oppose shifting of trial to Pathankot
The accused in the case opposed in the Supreme Court the transfer of trial outside this town of Jammu and Kashmir, saying free and fair trial may be affected.
The accused said if the trial at all needed to be shifted outside Kathua, then it should be done within the Jammu district, a prayer which was opposed by the victim's father.
During the hearing, several places in the state, including Ramban, were discussed where the trial could be shifted, before Pathankot was finally approved.
Senior advocate Meenakshi Arora, appearing for two of the accused, said Ramban was nearly 200 kilometres away from Kathua and hit by terrorism and there was "polarisation of the community" also.
She said it would be appropriate if the case is transferred to Jammu district, which is nearly 80 km from Kathua, while adding that there were 221 prosecution witnesses and most of them poor for whom it would be inconvenient.
Senior advocate Indira Jaising appearing for the victim's father said that Jammu, Udhampur and Kathua were "epicenter" of protests by lawyers who had obstructed the crime branch officials from filing the chargesheet on April 9.
She sought transfer of the trial claiming that the accused might influence witnesses and the Kathua protests, including under the aegis of 'Hindu Ekta Manch', were carried out in support of the accused while the town's bar association had sought CBI probe in the matter.
Jaising said the entire case was given a "political colour" by the accused despite the fact that it was a matter related to rape and murder of an eight-year-old girl.
Advocate General Jahangir Iqbal Ganai of the state alongwith standing counsel Shoeb Alam opposed the trial being shifted outside the state and said Ramban district was situated on the National Highway and it would be easier for everyone to go there.
He said other adjoining districts where trial could be shifted were Poonch, Rajouri, Doda and Riyasi but Ramban was convinient since it was connected by the highway.
Ganai said the state government would provide necessary security to the accused, family members of the victim and if need arose, they would even provide residential accomodation to the witnesses going to Ramban from Kathua for trial.
At the outset, senior advocate Gopal Subramanium, appearing for Jammu and Kashmir, said the police has already filed a detailed charge sheet in the case and further probe was being carried out.
Subramanium said the case has been committed to the court of district and session judge after filing of the charge sheet and as far as transfer of case outside state was concerned, they were opposing it.
He said whether the trial would be in-camera or open, the state would provide complete security to all the parties.
"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 could be transferred to Jammu, Sambha, Udhampur or Sambha.
Jaising said that case should not be transferred to any district which was in proximity of Kathua.
"Samba, Jammu and Udhampur, we are not agreeable as these three districts were epicentre of agitation. Ramban can be considered as it is not in proximity of Kathua," she said, adding, "I am agreeable if the case is transferred to Ramban".
Meanwhile, counsel appearing for one of the accused, who had opposed transfer of trial outside Kathua, said a separate plea seeking CBI probe in the case was also pending before the Jammu and Kashmir High Court.
Jaising told the bench that the trial should be in-camera and no media should be allowed to report it and the proceedings should be videographed so that no party can later claim that the trial was not fair.
"When trial is in-camera, only the accused, witnesses and lawyers are present, why is there a question of video recording it? It is little too far. Court will be recording the evidence. We cannot have a different kind of concept. In-camera trial is okay," the bench observed.
When Jaising said there should not be any media reporting of the trial, the bench said, "No. That we will not say".
After the top court order, advocate Deepika Singh Rajawat appearing for victim's father said "I am very happy with this order. The court has transferred the case to Pathankot which is a border district. We needed a place which neither belongs to them or us. That was our intention and Pathankot is a peaceful place".
She said "The court has also said it would protect the witnesses.Things are moving in a proper way".
(With PTI inputs)