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Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ has agreed to hear the plea of three witnesses in the Kathua gangrape and murder case, alleging that they are being harassed by the state police, on May 16.

The said witnesses, who are college friends of the juvenile accused in the case, have alleged that they gave their statement to the police under coercion and that the state police was now asking them to re-appear and re-record their statements and exerting pressure in their families.

The Supreme Court had, on May 7, transferred the trial in the sensational Kathua gangrape and murder case of an eight-year-old girl from Jammu and Kashmir to Pathankot in Punjab, but refrained from handing over the probe to CBI saying there was no need as the investigation has been conducted and the chargesheet filed.

Emphasising on the concept of fair trial, the Court had said:

“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.”

(With inputs from PTI)

Case BriefsSupreme Court

Supreme Court: Taking note of the seriousness of the issue relating to the abduction, rape and murder of an eight-year-old girl in Kathua District of J&K in the month of January, the bench of 3-judge bench of Dipak Misra, CJ and Dr. DY Chandrachud and Indu Malhotra, JJ transferred the trial of the matter from the District & Sessions Judge, Kathua to the District & Sessions Judge, Pathankot situate in the State of Punjab.

Senior Advocate Indira Jaising, appearing for the family of the victim, had argued before the Court that 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 was not possible at Kathua.

Stating that 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, the Court issued the following directions while transferring the matter to Pathankot:

  • The learned District & Sessions Judge, Pathankot shall himself take up the trial and not assign it to any Additional Sessions Judge;
  • 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;
  • 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;
  • The trial shall be held in camera so that the witnesses feel protected and the accused persons feel safe;
  • As this Court is monitoring the matter, no court shall entertain any petition pertaining to this case; The transferee court shall proceed under the Ranbir Penal Code as that applies to the State of Jammu & Kashmir;
  • The statements of the witnesses that have been recorded in Urdu language shall be translated to English so that the transferee court does not face any difficulty in conducting the trial;
  • 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;
  • 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;
  • 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;
  • The State of Jammu & Kashmir is granted liberty to appoint the Public Prosecutor for prosecution of the case;
  • 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.

Emphasising on the concept of fair trial, the Court said:

“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.”

The Court also reiterated that the protection granted by it to victim’s family & lawyers via order dated 16th April, 2018, shall continue and shall not be varied till the trial is over.

[Mohd. Akhtar v. State of Jammu & Kashmir, 2018 SCC OnLine SC 494, order dated 07.05.2018]

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Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar & Dr. DY Chandrachud, JJ directed all High Courts to ensure that the cases of sexual assault of children are fast-tracked and decided expeditiously by special courts. The bench also asked the the high courts to instruct the trial courts not to grant unnecessary adjournments during trial of cases under the Protection of Children from Sexual Offences (POCSO) Act.  The Court also directed that the High Courts may constitute a committee of three judges to regulate and monitor the trials of sexual assault cases of children.

The Court was hearing the petition filed by advocate Alakh Alok Srivastava after the horrific incident of rape of an 8-month girl child allegedly by her 28-year-old cousin on January 28 in a locality near Netaji Subhash Place in north-west Delhi had come to light.  He had also sought the provision of death penalty in such cases and framing of guidelines that investigation and trial of cases involving rape of children below 12 years of age under POSCO Act, should be completed in six months from the date of registration of the FIR.

The Union Cabinet had on April 21 approved the ordinance to provide stringent punishment, including death penalty, for those convicted of rape of girls below 12 years. The move of the Centre came after a public outcry for award of death penalty to such sexual offenders, including the assaulters of an 8-year-old girl who was gang raped and killed at Kathua district of Jammu and Kashmir recently.

Source: PTI

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Supreme Court: Taking suo motu cognizance in the Kathua rape and murder case, the Court has issued notice to Bar Council of India, Jammu and Kashmir Bar Association, Jammu High Court Bar Association and Kathua Bar Association on a plea filed against the lawyers for allegedly blocking the filing of charge sheet in the matter and obstructing a lawyer from representing the victim’s family

Earlier this week, lawyers held a protest against the charge sheet filed against seven people accused of kidnapping, raping and killing an eight-year-old girl in January. The Bar Association of Jammu reportedly supported the lawyers and also organised a strike against the FIR.

The Bench headed by CJI Dipak Misra said that it is impermissible under law and ethics to prevent the filing of a chargesheet or oppose the representation of the victim’s family by a lawyer.

In the horrific Kathua case, an 8-year-old girl was held captive, sedated and raped for several days at a temple before she was murdered in Kathua district.

The Court will now hear the matter on April 19.

Source: ANI

Case BriefsSupreme Court

Supreme Court: Taking note of the rise in the crimes against children, the bench of Madan B. Lokur and Deepak Gupta, JJ said that the definition of the expression “child in need of care and protection” under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2000  should not be interpreted as an exhaustive definition. The provisions of the Protection of Children from Sexual Offences Act, 2012 do not provide any definition of a child in need of care and protection. But no one can deny that a child victim of sexual abuse or sexual assault or sexual harassment is a child in need of care and protection. Similarly in a given case, a child accused of an offence and brought before the Juvenile Justice Board or any other authority might also be a child in need of care and protection.  The Court said that it would be unfortunate if certain categories of children are left out of the definition, even though they need as much care and protection as categories of children specifically enlisted in the definition.

The bench also gave elaborate directions in order to ensure the welfare of the children in need of care and protection, some of the important directions are as follows:

  • The Union Government and the governments of the States and Union Territories must ensure that the process of registration of all child care institutions is completed positively by 31.12.2017 with the entire data being confirmed and validated. Inspection Committees should also be set up on or before 31.07.2017 to conduct regular inspections of child care institutions and to prepare reports of such inspections.
  • The governments of the States and Union Territories should draw up plans for full and proper utilization of grants (along with expenditure statements) given by the Union Government under the Integrated Child Protection Scheme.
  • The schemes of the Government of India including skill development, vocational training etc must be taken advantage of for the rehabilitation and social re-integration of children in need of care and protection.
  • Individual child care plans are extremely important and all governments of the States and Union Territories must ensure that there is a child care plan in place for every child in each child care institution on or before 31.12.2017.
  • State and Union Territory Government must establish State Commission for Protection of Child Rights on or before 31.12.2017. The SCPCRs so constituted must publish an Annual Report so that everyone is aware of their activities and can contribute individually or collectively for the benefit of children in need of care and protection.
  • The process of conducting a social audit must be taken up in right earnestness by the National Commission for the Protection of Child Rights as well as by each State Commission for the Protection of Child Rights to bring transparency and accountability in the management.

Stating that every child in need of care and protection must not be placed in a child care institutions, the Court said that alternatives such as adoption and foster care need to be seriously considered by the concerned authorities. The Court said that a status report of the compliance of the aforementioned directions be submitted before the Court on or before 15.01.2018. [Re: Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India, 2017 SCC OnLine SC 534, decided on 05.05.2017]