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Mohd. Akhtar v/s State of Jammu & Kashmir

    Writ Petition (Crl.) Nos. 85, 86 of 2018

    Decided On, 09 July 2018

    At, Supreme Court of India


    For the Appearing Parties: Indira Jaising, Sr. Advocate, Sunil Fernandes, Sangeeta Madan, Nupur Kumar, Anju Thomas, Priyansha Sharma, Paras Nath Singh, Adil Numeer Andrabi, Anuja Kapur-in-person, Shekhar Naphade, Sr. Advocate, M. Shoeb Alam, Fauzia Shakil, Ujjwal Singh, Mojahid Karim Khan, Maninder Singh, ASG, R. Balasubramanian, Uttara Babbar, Aarti Sharma, Prabhas Bajaj, B.V. Balaram Das, Dharmendra Kumar Sinha, Harvinder Choudhury, Chandan Sharma, Dr. Nishesh Sharma, Anil Kumar Singh, S.C. Patel, Meera Patel, Tejas Patel, Chandan Sharma, Abhisek, Ashok Kumar Singh, Aakarshan Aditya, Chandan Sharma, Abhishek, Ashok Kr. Singh, Sumit R. Sharma, P.D. Sharma, Advocates.

Judgment Text

This Court on 07.05.2018 had passed an elaborate order and issued the following directions:-

"(i) The matter that has been committed to the court of the District & Sessions Judge, Kathua, shall stand transferred to the file of the District & Sessions Judge, Pathankot situate in the State of Punjab;

(ii) The District & Sessions Judge, Kathua shall send all the materials relating to the charge-sheet and other documents in sealed covers through special messengers with the assistance of the police force to the transferee court;

(iii) The transferee court shall proceed under the Ranbir Penal Code as that applies to the State of Jammu & Kashmir;

(iv) The s

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tatements of the witnesses that have been recorded in Urgu language, as accepted by Mr. Gopal Subramanium, shall be translated to English so that the transferee court does not face any difficulty in conducting the trial;

(v) 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;

(vi) 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;

(vii) 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;

(viii) The learned District & Sessions Judge, Pathankot shall himself take up the trial and not assign it to any Additional Sessions Judge;

(ix) The learned District & Sessions Judge, Pathakot shall fast-track the trial and take it up on day-to-day basis so that there is no delay in trial;

(x) 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;

(xi) The State of Jammu & Kashmir is granted liberty to appoint the Public Prosecutor for prosecution of the case;

(xii) The trial shall be held in camera so that the witnesses feel protected and the accused persons feel safe;

(xiii) As this Court is monitoring the matter, no court shall entertain any petition pertaining to this case; and

(xiv) 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."

2. Today, when the matter was called, Mr. Naphade, learned senior counsel assisted by Mr. Shoeb Alam appearing for the State of Jammu and Kashmir has filed a Status Report with regard to the progress of the investigation and the trial. The Report indicates that the charge-sheet has been filed and some witnesses have been examined. It is submitted by Mr. Naphade that though this Court had directed that the trial should be held in-camera, the said objective is frustrated inasmuch as the seven accused persons have engaged as many as 51 advocates. Be that as it may, our direction that the trial shall be held in-camera, shall remain undisturbed. We would only direct the learned trial Judge to ensure that the proceedings in the court room are held in-camera so that only the accused, their lawyers, the public prosecutor and his team and the concerned court staff are allowed to remain present and assist the court during the trial. It means the courtroom proceedings are converted to proceedings in-camera.

3. It is further submitted by Mr. Naphade that certain aspects are still under investigation and the investigating agency is acting with quite promptitude for filing supplementary charge-sheet. He has apprised us that the supplementary charge-sheet shall be filed within six to eight weeks.

4. Certain other aspects have also been mentioned in the Status Report. However, Mr. Naphade would submit, he does not want them to come in the public domain. On a perusal of the same, we find the submission is justified inasmuch as they pertain to the process of investigation and, therefore, the Status Report, which has been filed in Court, be kept in a sealed cover in the Registry.

5. Ms. Indira Jaising, learned senior counsel appearing for the victims contended that though the trial is held on a day to day basis, the Court is not getting enough time since a lot of time is spent in commuting and further getting the presence of the advocates. She would contend that the accused persons who have been lodged in Kathua jail should be transferred to District Jail, Gurdaspur, Punjab. That apart, she would urge, because of direction no.(xiii) contained in the order dated 07.05.2018, the High Court is not entertaining any petition which either the family of the victim or the accused are entitled to challenge in law.

6. In view of the obtaining situation, we issue the following directions:-

(i) The supplementary charge-sheet, as indicated by Mr. Naphade, after obtaining instructions, shall be filed within eight weeks;

(ii) The learned trial Judge shall ensure that the proceedings are held in-camera converting the courtroom to be so and barring the persons mentioned hereinabove, no one shall be allowed entry;

(iii) The accused persons who are presently lodged in Kathua jail shall be shifted to District Jail, Gurdaspur, Punjab. The relatives of the accused will have the right to visit them at Gurdaspur jail within the visiting hours.

(iv) If any of the relatives of the accused would like to meet the accused persons at Gurdaspur and such a request is made, the State of Jammu and Kashmir shall pay the expenses for his/her travel according to prescribed norms. Be it clarified, we have passed this direction, regard being had to the exceptional circumstances of this case.

(v) The State of Punjab shall provide security to the learned trial Judge and shall also secure the court premises where the trial is being held. We have directed the Punjab Government to do so as the court is situated in the State of Punjab;

(vi) As far as the Special Public Prosecutor is concerned, he shall be provided security, as and when asked for, by the State of Jammu & Kashmir; and

(vii) If any accused or the family of the victim is aggrieved by any order passed by the trial court, they are entitled to approach the High Court of Punjab & Haryana as that would be the High Court for the purpose of dealing with the matters arising out of the said trial. Direction no.(xiii) issued vide order dated 07.05.2018 stands modified accordingly.

7. With the aforesaid directions, the writ petitions stand disposed of.

8. Pending applications, if any, are deemed to have been disposed of.