SC transfers Kathua gang rape case to Pathankot

However, the 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.

The Supreme Court on Monday ordered that the trial in the sensational gangrape and murder of an eight-year-old girl in Kathua be shifted out of Jammu and Kashmir to neighbouring Punjab, 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 Central Bureau of Investigation 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 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 justice…I 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.

Jammu and Kashmir 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.