Accused In Kathua Rape Incident Oppose Shifting of Case, Says 'It Will Affect Free And Fair Trial'

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.

A bench of Chief Justice Dipak Misra and Justices D Y Chandrachud and Indu Malhotra considered the submissions and shifted the trial outside the state to Pathankot in Punjab, saying "a fair trial is a sacrosanct principle under Article 21 of the Constitution and a fair trial means fair to the accused persons, as well as to the victims of the crime".

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".

PTI