Case BriefsSupreme Court

“There has to be an error apparent on the face of record leading to miscarriage of justice to exercise the review jurisdiction under Article 137.”

Supreme Court: While envisaging the essence of Article 137 of the Constitution of India by stating that “Article 137 empowers the Supreme Court to review any judgment pronounced or made, subject, of course, to the provisions of any law made by Parliament or any rule made under Article 145 of the Constitution”,  the bench comprising of CJ Dipak Misra, R. Banumathi and Ashok Bhushan JJ. dismissed the review petition of the rape convicts of the most barbaric gangrape and murder case that the 21st century had witnessed.

Relying on the case of P.N. Eswara Iyer v. Supreme Court of India, (1980) 4 SCC 680, the bench stated that review in a criminal proceeding is permissible only on the ground of error apparent on the face of the record. Similarly in Devender Pal Singh v. State (NCT of Delhi), (2003) 2 SCC 501, it was held that review is not the rehearing of the appeal all over again. The review is not an appeal in disguise. By citing the above-mentioned cases, the only premise that the bench formed was that to maintain a review petition ‘miscarriage of justice’ is a necessity to be shown.

Therefore, while hearing the submissions made by the petitioners, the bench stated that the courts below had considered all the three dying declarations made by the victim and heard the arguments of the petitioners which were rejected. The Court was of the opinion that the petitioner cannot be allowed to re-agitate the same issues which were already considered and expressly rejected by the Apex Court earlier.

The Supreme Court dismissed the review petition and stated that the petitioner cannot be allowed to re-argue the appeal on merits of the case by pointing out shreds of evidence which were already looked into by the trial court, High Court and this Court. The present review petition has been unable to present any grounds on which the review jurisdiction can be exercised by this Court under Article 137. [Mukesh v. State (NCT of Delhi), 2018 SCC OnLine SC 673, decided on 09-07-2018]

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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 and Dr. DY Chandrachud, JJ agreed to hear the plea for CBI probe into the Unnao gangrape case allegedly involving a BJP lawmaker from Uttar Pradesh. The hearing will take place next week.

The plea had also alleged that the rape victim’s father was tortured and killed in the police custody at the behest of the “ruling party” in the state on April 9. Referring to the victim’s statement, the petition also alleged that sitting BJP MLA Kuldeep Singh Sengar from Bangarmau constituency in Unnao district was the main accused in cases of the girl’s rape in July last year and custodial death of her father after her protest against the legislator.

The public interest petition also sought protection and compensation to the victims’ kin, as was provided in the Nirbhaya gangrape case.

Source: PTI

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Supreme Court: The 3-judge bench of Dipak Misra, AM Khanwilkar and Dr. DY Chandrachud, JJ granted six weeks time to the Gujarat government for apprising it on whether any disciplinary action has been initiated against policemen convicted in the 2002 Bilkis Bano gangrape case after Additional Solicitor General Tushar Mehta, representing the state government, requested the Court that some more time be given to get instruction on the authorities concerned in the case.

Listing the matter in the first week of January, 2018, the bench made it clear that the separate plea, seeking enhancement of compensation to be awarded to Bilkis Bano, will be taken up next week for hearing.

Bilkis Bano, who was gang-raped in March, 2002, while she was pregnant, lost seven of her family members in the aftermath of the Godhra train burning incident. Bombay High Court had, on May 4 2017, upheld the conviction and life imprisonment of 12 people in the gangrape case, while setting aside the acquittal of seven people including policemen and doctors.

Source: PTI

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On 30.05.2017, the Supreme Court refused to stay the the conviction of IPS officer RS Bhagora in the Bilkis Bano Gangrape case and said that there is no urgency for hearing the matter as the convicted officer has already undergone the sentence. The Court will, however, hear the matter in the second week of July, 2017.

The IPS officer, who, along with 4 other police officers, was convicted by the Bombay High Court had sought for the stay on the conviction order on the ground that if the stay is not granted then he will be terminated from the service as per service rules.

The Bombay High Court had, on 04.05.2017, reversed the trial court verdict acquitting RS Bhagora and others. The High Court had convicted 2 doctors along with 5 policemen.

According to the prosecution, on 3 March, 2002, Bilkis Bano’s family was attacked by a mob at Randhikpur village near Ahmedabad during the post-Godhra riots and seven members of her family were killed. Bilkis Bano, who was five months pregnant at the time, was gang raped. The convicts had, however, contended that all evidence in the case was fabricated by CBI and the fact that Bilkis gave birth to a child after the incident proves that she could not have been gang raped.

Source: PTI