The Supreme Court Friday stayed the trial in the Kathua gangrape and murder case while agreeing to examine the plea of the minor victim’s father seeking transfer of trial presently pending in Jammu and Kashmir to Chandigarh. The court also agreed to hear the plea of the accused to transfer the probe to the CBI.
Hearing the transfer plea filed by the father of the eight-year-old victim, who belongs to the nomadic Bakerwal community, a bench of Chief Justice of India Dipak Misra and Justices D Y Chandrachud and Indu Malhotra wondered how the court in Kathua could hear the matter when the apex court was seized of the it.
The bench posted the matter for hearing next on May 7. The hearing Friday saw heated exchanges between senior advocate Indira Jaising, who appeared for the victim’s father, and advocate Harvinder Chaudhary representing the accused.
Jaising referred to the protests by J&K lawyers on April 9, when the state Crime Branch team went to Kathua to file its chargesheet in the case and contended that the attempt was to abort the trial so that the accused get bail.
She said the family had requested that the trial be transferred to Chandigarh keeping in view its proximity to Kathua. Chaudhary pressed for a CBI probe in the matter saying her clients did not have faith in the police, which she claimed was trying to falsely implicate them.
Appearing for the J&K government, Advocate General Jahangir Iqbal Ganai and standing counsel Shoeb Alam opposed the plea for a CBI probe saying the SIT of the crime branch was investigating it.
They also opposed the demand to transfer the case out of the state and said J&K had a different penal code and transferring case would make things difficult for witnesses living in the state. The state, they contended, had its own penal code – Ranbir Penal Code (RPC) – and this could lead to problems during the trial as the procedure was different compared to other states.
Ganai said the trial could be shifted from Kathua and Jammu to another district in the state as there were 221 witnesses and most of the statements recorded so far were in Urdu.
After the hearing, the J&K government in a statement said that the Supreme Court stayed the trial to ensure that the petition filed by the victim’s father for transfer of the case is not rendered infructuous.
“The J&K Crime Branch has not been barred from filing the chargesheet. The trial Court in Kathua cannot proceed with the trial till further orders from the Supreme Court but there is no legal bar on the Crime Branch to file a supplementary chargesheet against the accused before the trial court,” Ganai said in the statement.
The court said: “There are only two questions of law that we need to decide. One is whether the case can be taken over by the CBI and second if we should transfer the mater out of the state. At this juncture, we do not think a CBI probe is necessary.”
Appearing for the Centre, Additional Solicitor General Maninder Singh said the government was ready to provide whatever assistance required by the state.
The court on Thursday had indicated that it would not hesitate to transfer the Kathua gangrape and murder case from the local court in Jammu if it suspected the “slightest possibility” that a fair trial was not possible there.
The Crime Branch has chargesheeted seven persons while a separate chargesheet was filed against a juvenile. The family’s lawyer Deepika Singh Rajawat had filed an application in the court stating that lawyers had obstructed her from appearing.
A report filed by the Bar Council of India in court Thursday, however, said there was nothing on record to show that Rajawat was heckled. The BCI also said the demand for transferring the case to CBI was justified.