Supreme Court rejects demand for transferring investigation to the CBI, orders Pathankot District Judge to conduct trial and not delegate it to another court

The Supreme Court, on Monday (May 7), ordered the transfer of trial from Kathua in Jammu and Kashmir to Pathankot in Punjab in the case of the 8-year-old Bakerwal (shepherd) girl who had been abducted, gang-raped and then found murdered in Kathua. The trial will be held in-camera, under provisions of the Ranbir Penal Code that applies in J&K and no adjournments will be allowed while chief and cross-examination of the 122 witnesses in the case.

Observing that a “fair trial is sacrosanct principle under Article 21 (fundamental right to life) of the Constitution”, a special bench of Chief Justice Dipak Misra, Justices DY Chandrachud and Indu Malhotra transferred the case out of  Jammu and Kashmir with consensus from the victim’s family, the Jammu and Kashmir government and the accused.

However, the court rejected the demand made by the accused to order re-investigation of the case by a CBI team. The counsel for one of the accused in the case had urged the top court to transfer the investigation of the rape and murder case from the Jammu & Kashmir police’s crime branch to the CBI, arguing that the probe by the crime branch was “botched-up” and that only a re-investigation by the premier central investigation agency will ensure a fair trial.

Chief Justice Misra rejected the contention of the accused, stating: “We are not going to comment on the investigation. We are here for the fundamental concept of fair trial for both victims and the accused… When chargesheet is filed (by the crime branch), why should we want another agency (sic).”

While transferring the trial in the case to Pathankot, the bench also said that it would continue to monitor the proceedings in the case and ruled that no other court across the country will have jurisdiction to entertain complaints or appeals from the Pathankot District Judge’s orders. Passing a slew of directives to ensure a fair trial in the highly sensitive case, which has kept J&K on the boil for the past few weeks and re-ignited communal tensions in the state, the bench ordered a fast-track trial on a day to day basis with no adjournments and that chief and cross-examinations of witnesses should be done without break. There are a total of 221 witnesses in the case.

The top court observed that fair trial and fear are contradictory concepts and should not be allowed to co-exist while it emphasised that a fair trial means an “atmosphere where the victims, accused persons and witnesses feel safe and they do not suffer from any phobia from attending court.”

The bench has also ordered that all documents related to the case will be translated from Urdu to English and that the J&K government can appoint a special public prosecutor for the trial. It added that the state government can continue to provide protection, transport and all other ancillary facilities to the victims, lawyers and accused during the trial. Since the trial has now been transferred to Pathankot, the court has ordered all records of the case to be sent from the Kathua District and Sessions Judge’s court (where the case was first committed for trial) to the Pathankot trial court in a sealed cover under police escort.

During the course of arguments in the case, on Monday, senior advocate Gopal Subramanium, appearing for the J&K government, and senior advocate Indira Jaising, appearing for the rape victim’s family, urged the top court to transfer the trial outside Kathua district, if not out of J&K itself. It is pertinent to note that a J&K High Court-appointed judicial report from the Kathua District Judge has also “indicated” that the local lawyers, demanding a CBI probe in the case (many of whom have been publicly supporting the accused), had obstructed the judicial process by not allowing the crime branch team to file the chargesheet in the Kathua court.

The bench and the counsels appearing for various parties in the case deliberated on various alternative courts where the trial could be transferred out to. Suggestions were made to transfer the trial to courts in any of Kathua’s adjoining districts – Udhampur, Samba, Jammu and Ramban – while the victim’s family wanted the case to be transferred to a court in Chandigarh.

—India Legal Bureau