I. On the role of the " Kathua Bar Association": << As asserted in the writ petition, 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 is not possible at Kathua. Be it noted, the High Court of Jammu & Kashmir had called for a report from the District & Sessions Judge, Kathua, who has submitted the report and the same has been brought on record. Suffice it to mention that the report indicates that there had been some obstruction by the Bar Association at Kathua. We do not intend to dwell upon the same in detail.>>
II. Issues considered by the Court: << The issues that emerge for consideration are whether the charge-sheet filed by the Crime Branch should be treated to have been dented to have an investigation by the Central Bureau of Investigation, to transfer the case outside the District of Kathua or outside the State of Jammu & Kashmir, the duty of the State to provide protection to the accused persons, one of whom is a juvenile and the witnesses, if the case is transferred to another place, what kind of protection is to be given to the witnesses and further what kind of arrangements can be made so that the witnesses not only feel protected, but depose absolutely in a fearless manner and that in the case of transfer to some other State, who should be allowed to prosecute the trial and how the trial Judge can be rendered assistance.>> III. Most major concern of the Court: << 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. 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.>> IV. The Directives Issued: << (i) The matter that has been committed to the court of the District & Sessions Judge, Kathua, shall stand transferred to the file of the District & Sessions Judge, Pathankot situate in the State of Punjab; (ii) The District & Sessions Judge, Kathua shall send all the materials relating to the charge-sheet and other documents in sealed covers through special messengers with the assistance of the police force to the transferee court; (iii) The transferee court shall proceed under the Ranbir Penal Code as that applies to the State of Jammu & Kashmir; (iv) The statements of the witnesses that have been recorded in Urdu language, as accepted by Mr. Gopal Subramanium, shall be translated to English so that the transferee court does not face any difficulty in conducting the trial; (v) 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; (vi) 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; (vii) 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; (viii) The learned District & Sessions Judge, Pathankot shall himself take up the trial and not assign it to any Additional Sessions Judge; (ix) 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; (x) 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; (xi) The State of Jammu & Kashmir is granted liberty to appoint the Public Prosecutor for prosecution of the case; (xii) The trial shall be held in camera so that the witnesses feel protected and the accused persons feel safe; (xiii) As this Court is monitoring the matter, no court shall entertain any petition pertaining to this case; and (xiv) 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. Also: << The protection that we had granted vide order dated 16th April, 2018, shall continue and shall not be varied till the trial is over.>> (For clarification and e;aboration of the term "protecton" as referred to above << As an interim measure, it is directed that the respondent-State shall keep the security, as provided to the family members of the victim, in continuity; provide security to Ms.Deepika Singh Rajawat and her family members; and that protection shall be provided to Mr.Talib Hussain, who is assisting the victim's family in prosecution of the grievance by remaining present in the Court or engaging counsel to assist the public prosecutor. Ms.Deepika Singh Rajawat shall provide the details of Mr.Talib Hussain to Mr.M.Shoeb Alam, learned Sanding Counsel for the State of Jammu & Kashmir to that he can do the needful in the matter. At this juncture, a submission has been advanced by Ms.Indira Jaising, learned senior counsel appearing for the petitioner that the State authority should provide security in plain clothes. Mr.Shoeb Alam, learned standing counsel for the State of Jammu and Kashmir accepted the same and, therefore, we direct that the security shall be provided in plain clothes. We will be failing in our duty if we do not take note of another aspect which gets reflected in the prayer clause. The prayer relates to strengthening of security at juvenile home where the alleged juvenile accused is lodged. Regard being had to the said prayer, we direct the State authorities to do the needful keeping in view the spirit of the care and protection of Children.>> Excerpted from the preceding order on 16 04 2018 at < http://www.supremecourtofindia.nic.in/supremecourt/2018/14313/14313_2018_Order_16-Apr-2018.pdf >.) V. Next Hearing in the Supreme Court: <<9th July, 2018>> (Excerpted from: < https://barandbench.com/wp-content/uploads/2018/05/SC-Order-Kathua-trial-transfer-watermark.pdf >.) For important glimpses of arguments, ref.: < http://www.livelaw.in/kathua-case-transferred-to-pathankot-highlights-of-the-hearing/ >. An important tidbit: The state government had opposed the transfer of the trial out of the state. Sukla -- Peace Is Doable -- You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. To unsubscribe from this group and stop receiving emails from it, send an email to [email protected]. To post to this group, send an email to [email protected]. Visit this group at https://groups.google.com/group/greenyouth. For more options, visit https://groups.google.com/d/optout.
