New Delhi: The Supreme Court on Thursday said it would transfer the Kathua gangrape and murder case from the local court in Jammu and Kashmir in the "slightest possibility" of lack of fair trial, saying the "real concern" was to hold proper prosecution.
The observations by a bench headed by Chief Justice Dipak Misra came amid a report filed by a Bar Council of India (BCI's) committee which supported the demand of the lawyers' body there for a CBI probe in the matter, saying the bar associations in Kathua had not obstructed the police or the counsel representing the victim's family in any manner.
The apex court, after perusing the report, said it would not "digress" from the main issue of ensuring a fair trial, not only for the accused but also for the victim's family. On the issue of alleged obstruction by lawyers in administration of justice in the case, the bench made it clear that if the advocates were "at fault, they will be dealt with in accordance with the law".
The bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said its constitutional obligation was to ensure a fair trial and proper legal assistance to the victim's family as well as the accused, along with protection to them and their lawyers.
"If we find a slightest possibilty of lack of fair trial, we will transfer the case (out of Kathua)," the bench said, adding, "the real concern of this court is to see that a fair trial is done and the trial is fair to the accused as well as the family members of the victim".
At the outset, the BCI filed in a sealed cover the enquiry report of its committee headed by former High Court judge Justice Tarun Agarwal, on the issue of alleged obstruction by lawyers in the case at Kathua.
The report said the local lawyers' body had neither obstructed the Crime Branch of Jammu and Kashmir police from filing the charge sheet in the court, nor had the lawyers obstructed advocate Deepika Singh Rajawat, who is representing the victim's family, from appearing in the matter before the high court there.
The panel, while claiming that media had "misrepresented" the reports, said the demand of Jammu & Kashmir High Court Bar Association, Jammu, and Kathua District Bar Association for a CBI probe in the matter "appears to be justified".
However, advocate Shoeb Alam, appearing for the state, opposed the committee's report and maintained that the police team was heckled allegedly by the lawyers, due to which they could not file the charge sheet in the trial court.
Alam referred to the separate reports of the high court and a district judge at Kathua, claiming that these had given scathing finding of "obstruction" of police officers and the justice administration system.
To this, the bench observed, "Let the main issue be not missed. Fair investigation, fair trial, appropriate legal guidance and representation of both the accused and the victim's family has to be there."
"Instead of getting into what the BCI report says and the lawyers say, let us not digress from the real issue. The real issue is that how can we achieve justice," it said.
Senior lawyer Indira Jaising, appearing for the victim's father, told the bench that their prayers were for transfer of case from Kathua to Chandigarh and monitoring of its trial by the apex court.
"Monitoring of trial means we can fast track the trial," the bench said, adding that fast-tracking of case does not mean that proper opportunity should not be granted in accordance with the procedures to the accused and the victim's family.
"Let us not get into what had happened in the bar. Let us stick to the victim's case," the court said and added that protection granted to the lawyer of the victim's family shall continue.
The bench said the issue whether lawyers had allegedly created obstructions would be dealt with by it separately as it would take up the case of victim first and posted the matter for hearing on July 30.
Earlier in the day, the bench agreed to consider a separate plea filed by two accused seeking that the trial in the case be held in Jammu and the probe handed over to the CBI.
The court considered the plea of the accused, Sanji Ram and Vishal Jangotra, that they be impleaded as parties to the petition filed by the victim's father.
The eight-year-old's father had moved the apex court earlier, apprehending threat to the family, a friend and their lawyer Rajawat.
Expressing satisfaction with the probe conducted by the Jammu and Kashmir police in the case, the victim's father had sought transfer of trial from Kathua court to Chandigarh. However, the accused are asking for the opposite, seeking a CBI probe in the case and trial in Kathua district itself.
The child from a minority nomadic community had disappeared from near her home in a village near Kathua in Jammu region on January 10. Her body was found in the same area a week later.
The state police's Crime Branch, which probed the case, filed the main chargesheet against seven persons and a separate charge sheet against a juvenile in a court in Kathua district last week. The chargesheet revealed chilling details about how the girl was allegedly kidnapped, drugged and raped inside a place of worship before being killed.
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