1 IN THE SUPREME COURT OF INDIA (CRIMINAL ORIGINAL JURISDICTION) WRIT PETITION (CRIMINAL) NO. OF 2018 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) IN THE MATTER OF: MOHD AKHTAR F/o Late A (Biological) R/o Rasana village Hiranagar Tehsil Kathua District State of J&K VERSUS PETITIONER STATE OF JAMMU AND KASHMIR Through Secretary to Govt. Department of Home Govt. of Jammu and Kashmir Civil Secretariat Jammu Jammu and Kashmir RESPONDENT TO, HON BLE THE CHIEF JUSTICE OF INDIA AND HIS OTHER COMPANION JUSTICES OF THE HON BLE SUPREME COURT OF INDIA THE HUMBLE PETITION OF THE PETITIONER ABOVENAMED MOST RESPECTFULLY SHEWETH: 1. The Petitioner herein, Mohd. Akhtar, the Biological father of late A - a minor girl aged 8 years, who was brutally abducted, raped and murdered in Rasana village in Hiranagar Tehsil of Kathua District in the State of J&K, is constrained to invoke the extraordinary jurisdiction of this
2 Hon ble Court under Article 32 of the Constitution of India 1950 ( CoI 1950 ) seeking transfer of the chargesheet in FIR 10/2018 U/S 363 Ranbir Penal Code, 1989 ( RPC ) before PS- Hiranagar and the pending cases before court of Ld. CJM, Kathua, Jammu & Kashmir to Chandigarh. 2. The present petition is being preferred by the Petitioner herein, in terms of the judgment passed by a Constitution Bench of this Hon ble Court in Anita Kushwaha vs. Pushap Sudan; (2016) 8 SCC 509, wherein despite Article 139A, CoI, 1950, Section 25, Central Code of Civil Procedure ( Central CPC ) and Section 406, Central Code of Criminal Procedure ( Central CrPC ), which empower this Hon ble Court to direct transfer of civil and criminal cases respectively from one state to the other, not being extended and made applicable to the State of Jammu and Kashmir, this Hon ble Court has recognized the provisions of Article 32, 136 and 142, CoI, 1950 to be wide enough to empower this Hon ble Court to direct such transfer in appropriate situations, no matter if the Central CPC or the Central CrPC extends to the state or the State Codes (CPC & CrPC), containing no provision empowering the Hon ble Supreme Court to transfer cases, making justice accessible to everyone.
3 3. The facts leading to the filing of the present Writ Petition are as follows: (i) The Petitioner, Muhammad Yusuf Pujwala is the father of late A and is resident of Rasana village in Hiranagar Tehsil of Kathua District in the State of J&K. (ii) The accused Sanji Ram, on 07.01.2018, hatches a plot for kidnapping the deceased A, daughter of the Petitioner herein. The said kidnapping was planned and orchestrated by the accused Sanji Ram along with SPO - Deepak Kajuria, his friend Vikram, and his nephew a Juvenile ( JCL ), whose identity is not disclosed. (iii) On 08.01.2018, the JCL was lured to kidnap the deceased by the accused Deepak Khajuria, on the assurance that he would help him in passing the board exams (through cheating). Subsequently, JCL shared the entire plan worked out by Sanji Ram and Deepak Khajuria with Parvesh Kumar @ Mannu, his close friend and asked for his help and assistance in executing the plan on ground. The investigation further revealed that accused Sanji Ram had directed the JCL to execute the plan of kidnapping and to give some intoxicant to the deceased A and thereafter confine her at the Devisthan/ temple in the first instance.
4 (iv) The JCL on 09.01.2018, along with another accused Parvesh Kumar @ Mannu went to Hiranagar and purchased 04 Manars (intoxicating substance) from Rampal s shop, situated near auto stand Hiranagar, out of which one was consumed by him and he returned back to Rasana with the other 3. (v) The daughter of the Petitioner herein Late A, aged 8 years goes for grazing horses on 10.01.2018, in the nearby forest at about 1230 hrs. The said JCL hears her voice while, she is enquiring from one Veena Devi about her horses and immediately rushes with 03 Manars and keys of Devisthan. (vi) On reaching the spot, he misinforms A that he had seen her horses and leads her to the jungle and also calls accused Mannu who was already waiting for his signal. Sensing some trouble A tries to flee away. The JCL stops her by catching hold of her neck and covering her mouth with one of his hands and pushes her as she falls to the ground. Accused Mannu holds her legs and the JCL administers Manars one by one forcibly to the victim. The victim fell unconscious and was raped by JCL. Thereafter, Mannu also attempts to rape her. Later on, they take A and leaves her inside Devisthan/ temple.
5 (vii) On the same day, when the horses return back in the dhera at about 1600 hrs but A does not return, the Petitioner panics and along with others starts searching for her in the forest area but A could not be traced. (viii) The daughter of the Petitioner herein Late A, aged 8 years goes for grazing horses in the nearby forest at about 1230 hrs. The said JCL hears her voice while, she is enquiring from one Veena Devi about her horses and immediately rushes with 03 Manars and keys of Devisthan. (ix) On reaching the spot, he misinforms A that he had seen her horses and leads her to the jungle and also calls accused Mannu who was already waiting for his signal. Sensing some trouble A tries to flee away. The JCL stops her by catching hold of her neck and covering her mouth with one of his hands and pushes her as she falls to the ground. Accused Mannu holds her legs and the JCL administers Manars one by one forcibly to the victim. The victim fell unconscious and was raped by JCL. Thereafter, Mannu also attempts to rape her. Later on, they take A and leaves her inside Devisthan/ temple. (x) On the same day, when the horses return back in the dhera at about 1600 hrs but A does not return, the Petitioner
6 panics and along with others starts searching for her in the forest area but A could not be traced. (xi) The accused Vishal Jangotra @ Shamma reaches Rasana from Meerut at 06:00 a.m, the next day. The JCL narrates full details about kidnapping and confinement of the girl in Devisthan to him, and further administers sedatives to A while she continues to be in an unconscious state. (xii) The Petitioner herein lodges a Missing report on 12.01.2018, on which FIR No. 10/2018 u/s 363, RPC is registered in P.S. Hiranagar. (xiii) The accused Vishal Jangotra @ Shamma rapes the victim and thereafter JCL also rapes her in presence of the accused Mannu. After raping her, the JCL again administers her with sedatives. (xiv) The victim was on 16.01.2018 killed by the accused persons by first strangulating her and then to by hitting her twice on the head with a stone, after she is gang-raped by the accused persons once again. (xv) That on 17.01.2018, dead body of the victim is recovered on the basis of information provided by one Jagdish Raj and the
7 body is taken into police custody and autopsy is conducted on the same day. (xvi) The post mortem report confirms that hymen of the deceased was not found intact and lacerations on vulva of the vagina were also observed, besides blood stained discharge was found inside vagina of the deceased. The Medical opinion also establishes the fact that the victim had been kept without food and administered sedatives and her cause of death was Asphyxia leading to cardio-pulmonary arrest. (xvii) The JCL, was arrested on 19.01.2018, in the above said case by the Police Station Hiranagar. On the basis of the confessional statement of the accused JCL a stone, weighing around 1 kg, used by him to hit the deceased girl was recovered and seized. He was subsequently produced before the Ld. CJM, Kathua, who ordered him to be sent to juvenile home. (xviii) The State police vide PHQ Order No 374 of 2018 transfers the investigation of the said case to the Crime Branch., and a team of officers were constituted on 23.01.2018, headed by Shri Naveed Peerzada, ASP Crime Branch, Kashmir for carrying out further investigation of the case, the case diary is subsequently handed over on 27.01.2018.
8 (xix) On 10.04.2018, amongst severe back-lash and protest, the Charge-sheet is filed by the Crime Branch upon investigation before the Ld.CJM, Kathua, under Sections 363/343/376- D/302/201 r/w 120-B RPC, against the following accused persons - (i) (ii) Sanji Ram S/o Des Raj R/o Village Rasana, Hiranagar, Shubam Sangra @ Chuboo S/o Om Parkash Sangra R/o Ward No. 10, Hiranagar A/o Village- Rasana Hiranagar; (iii) Deepak Khajuria @ Deepu S/o Updesh Khajuria R/o Dhamiyal Hiranagar; (iv) (v) (vi) Parvesh Kumar @ Mannu S/o Ashok Kumar R/o Village -Rasana, Hiranagar; Vishal Jangotra s/o Sanji Ram R/oi Rasana, Hiranagar; Tilak Raj S/o Amir Chand R/o Dhamiyal, Hiranagar; (vii) Anand Dutta S/o Shanti Swaroop Dutta R/o Village Dharmal P/o Muthi, District Jammu and (viii)surinder Kumar S/o Sain Das R/o Satura, Hiranagar. A copy of the Charge-sheet dated 10.04.2018 in FIR No. 10 of 2018 filed before the Ld. CJM, Kathua, under Sections 363/343/376-D/302/201 r/w 120-B RPC is annexed hereto as ANNEXURE P - 1 [Page Nos. to ].
9 (xx) The staff of the lawyer representing the victim s family is brutally beaten up and restrained from meeting the Petitioner herein on 13.04.2018, and a riot breaks out, which is widely reported in the print and electronic media. (xxi) That the local Advocate of the Petitioner herein Ms. Deepika Singh Rajawat has been constantly under threat since she took to represent the Petitioner herein, first before the Hon ble High Court and now before the Ld. CJM, Kathua. The severity of the threat has reached an extend where even the family members of Ms. Deepika, including her 5 year old daughter are under attack by the supporters of the accused, and despite the Hon ble High Court having directed the Security Wing to provide protection to Ms. Deepika, within the court premises when she appears to represent the Petitioner herein, there is an anxiety towards her safety outside the court premises and that of her family. An affidavit by Ms. Deepika Singh Rajawat dated 16.04.2018 along with annexures, is annexed hereto as ANNEXURE P 2 [Page Nos. to ]. (xxii) Furthermore, on 13.04.2018, a mob was set upon Shri Talib Hussain at Udhampur, when he criticized those siding with the accused in the instant case, in an open debate organized by News18 in a public park. Shri Talib was not only brutally
10 kicked and punched, but further threatened with dire consequences. An affidavit by Shri Talib Hussain dated 16.04.2018 is annexed hereto as ANNEXURE P 3 [Page Nos. to ]. (xxiii) That on 13.04.2018, the Petitioners lawyer made an attempt to contact the Petitioner, but a riot broke out and her staff member was beaten and sent away. This Hon ble Court on being informed of the resistance faced by the lawyer representing the Petitioner has issued notice to the Bar Council of India, the State Bar Council, Jammu & Kashmir, the High Court Bar Association at Jammu and the Kathua District Bar Association in Suo Moto Writ Petition (Crl.) No.1/2018 In Re: Kathua, Jammu and Kashmir. True copy of the order dated 13.04.2018 is annexed herewith and marked as ANNEXURE P - 4 [Page Nos. to ]. 4. That in the circumstances mentioned hereinabove this Writ Petition is being preferred by the Petitioner inter alia on the following amongst other grounds without prejudice to each other: GROUNDS A. Because the Petitioner has been constrained to invoke the extraordinary jurisdiction of this Hon ble Court under Article
11 32 of the Constitution of India seeking enforcement and protection of his fundamental right of Access to Justice, Fair and Free Trial in the brutal abduction, rape and murder of his 8 year old minor girl Late A. B. Because the Petitioner has filed the present petition seeking transfer of the chargesheet in FIR 10/2018 U/S 363 Ranbir Penal Code, 1989 ( RPC ) before PS- Hiranagar and the pending cases before court of CJM, Kathua, Jammu & Kashmir to Chandigarh in the light of the judgment passed by this Hon ble Court in Anita Kushwaha vs. Pushap Sudan [(2016) 8SCC 509], wherein a Constitutional Bench of this Hon ble Court has recognised that this Hon ble Court is empowered to direct transfer of case pending in any State of Jammu & Kashmir to a court outside that State and vice versa in appropriate situations when the right of access to justice is hindered. C. Because this Hon ble Court in Anita Kushwaha supra has equated the Right of Access to Justice and Fair Trial is a facet of right to life guaranteed Under Article 21 of the Constitution and has further defined it as an invaluable human right, wherein this Hon ble Court observes: 28.The Citizen's inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws. Absence of any
12 adjudicatory mechanism or the inadequacy of such mechanism, needless to say, is bound to prevent those looking for enforcement of their right to equality before laws and equal protection of the laws from seeking redress and thereby negate the guarantee of equality before laws or equal protection of laws and reduce it to a mere teasing illusion. Article 21 of the Constitution apart, access to justice can be said to be part of the guarantee contained in Article 14 as well. D. Because this Hon ble Court in Anita Kushwaha supra has further held that: 42...if access to justice is a facet of the right to life guaranteed Under Article 21 of the Constitution, a violation actual or threatened of that right would justify the invocation of this Court's powers Under Article 32 of the Constitution. Exercise of the power vested in the court under that Article could take the form of a direction for transfer of a case from one court to the other to meet situations where the statutory provisions do not provide for such transfers. Any such exercise would be legitimate, as it would prevent the violation of the fundamental right of the citizens guaranteed Under Article 21 of the Constitution. E. Because the Right of Expeditions and Fair Trial has been declared by this Hon ble Court as a Fundamental Right guaranteed under Article 21, as held in Brij Mohan Lal v. Union of India and Ors; (2012) 6 SCC 502, wherein it is observed that: 137. Article 21 of the Constitution of India takes in its sweep the right to expeditious and fair trial. Even Article 39A of the Constitution recognises the right of citizens to equal justice and free legal aid. To put it simply, it is the constitutional duty of the Government to provide the citizens of the country with such judicial infrastructure and means of access to justice so that every person is able to receive an expeditious, inexpensive and fair trial. The plea of financial limitations or constraints can hardly be justified as a valid excuse to avoid performance of the constitutional duty of the Government,
13 more particularly, when such rights are accepted as basic and fundamental to the human rights of citizens. F. Because in Tamilnad Mercantile Bank Shareholders Welfare Association v. S.C. Sekar and Ors.; (2009) 2 SCC 784, this Court declared that an aggrieved person cannot be left without the remedy and that access to justice is a human right and in certain situations even a fundamental right. G. Because it has been widely reported that even at the time of filing of the charge-sheet in the instant case, the Crime Branch of the Jammu and Kashmir Police, faced severe resistance from local lawyers who prevented them from filing the documents before the court on Monday i.e. 10.04.2018, thereby not only hindering the police officials from carrying on their duties but also rendering the entire Judicial machinery nugatory. H. Because while attempting to file charges against the accused, the Crime Branch was met with protests from lawyers in front of the Ld. CJM s office in Kathua. The lawyers were allegedly protesting in support of the Hindu Ekta Manch, and tried to prevent the charges from being filed. It is only after police reinforcements arrived at the scene, that the charge-sheet could be filed.
14 I. Because the Kathua Bar Association and Jammu Bar Association have been repeatedly holding agitations and rallies against the Crime Branch and the lawyers representing the Petitioner herein by taking rounds on the back of trucks, carrying the Tricolour and bamboo sticks, and shouting slogans in favour of the accused persons. J. Because the lawyers were also accompanied by workers of political parties, and whenever they saw a vehicle plying on the roads, they asked the driver to get off the road. Lawyers in black coats and white shirts were seen stopping vehicles, shutting down shops in Old City and Gandhi Nagar, Dogra Chowk, Kathu and Samba, and closing the National Highway connecting Jammu with New Delhi. K. Because the support of the masses towards the individual accused persons have led to not only widespread social outrage but strengthens the resolves of the miscreants to ensure that justice is not delivered to the Petitioner and his family. L. Because the protest and restraint by the public at large including the legal fraternity, extended to the lawyer representing the Petitioner herein before the Hon ble Court in Jammu and Kashmir. Ms. Deepika Singh Rajawat, was not
15 only prevented by locals from appearing and representing the Petitioner before the Court, but was also restrained from contacting the Petitioner herein. M. Because the Petitioner s local counsel, was also threatened by the Jammu Bar Association president, who asked her not to appear in the matter and said if 'you will appear, we know how to stop you'. The lawyer immediately rushed to the Hon ble Chief Justice of Jammu and Kashmir High Court and filed a complaint in which she has stated that she is not safe and requested for security while she appears in the court. N. Because despite all the efforts made by the administration, on 13.04.2018, when the Petitioner s lawyer made an attempt to contact the Petitioner herein, a riot broke out and her staff member was ruthlessly beaten and sent away. O. Because the main accused Sanji Ram even organized a rally under the banner of 'Hindu Ekta Manch', a right-wing group, after the policemen were arrested. The protesters flew Indian flags and two ministers of Jammu and Kashmir government participated in a rally to demand the release of the accused. Sub-inspector Anand Dutta, head constable Tilak Raj and Parvesh Kumar, a civilian have been accused of destroying evidence, including washing the victim s blood-soaked
16 clothes, which again emphasizes on the fact that the accused have been garnering support from within the state machinery, which would render the entire Trial Process redundant. P. Because since the date of the incident, and the investigation conducted by the Crime Branch has come out in open, the Hindu Ekta Manch and the other groups have been holding communally-toned protests in support of the accused individuals. The accused persons as per media reports also have support from political leaders, who have not only participated in the pro-rapist protests/rallies in the State of Jammu and Kashmir, but have made a mockery out of the horrific incident which has sent a wave of outrage across the nation. Q. Because there is further apprehension of the trial not being conducted in a fair and transparent manner, owing to the fact that the main accused- Sanji Ram, is a retired official of the Revenue Department of the Govt. of Jammu and Kashmir, and has also gained support from the Government Officials in this regard. Being the custodian of the temple where A was held captive, brutally raped and then murdered, the accused holds a position of power and is followed blindly by a large number of population, which will also add to a hostility during the conduct of the trial in the
17 instant case to the detriment of the Petitioner herein and his entire family, who after having lost their daughter are today also facing threats from various factions in the society. R. Because of the hostile environment in the State of Jammu & Kashmir in relation to the present case, there is imminent danger to the life of the Petitioner and his family which includes his wife and two children and of being attacked and losing his life. S. Because the Petitioner craves leave of this Hon ble Court to amend/alter its grounds at appropriate stage, as and when required. 5. That in the facts and circumstances as enumerated herein above the Petitioner herein is approaching this Hon ble Court seeking to transfer the Charge-sheet dated 10.04.2018 filed in FIR No. 10 of 2018 from the court of Ld. CJM, Kathua, Jammu and Kashmir to a court of competent jurisdiction at Chandigarh. 6. That the Petitioner has not filed any other Petition on the same subject matter or seeking similar reliefs either in this Hon ble Court or any other High Courts except this present petition. 7. That the Writ Petition has been filed without any delay or latches and there is no legal bar in entertaining the same. That the Petitioner has no other efficacious alternative
18 remedy except to file the present Writ Petition before this Hon ble Court by invoking Article 32 of the Constitution. 8. That the Annexures are true and correct copies of their respective originals. PRAYER IN THESE FACTS AND CIRCUMSTANCES, IT IS MOST RESPECTFULLY PRAYED THAT THIS HON BLE COURT MAY BE PLEASED TO:- a) Issue an appropriate writ, order or direction or like nature directing the transfer of the case and Trial into the chargesheet in FIR 10 of 2018 titled - State v. Sanji Ram and others, dated 12.01.2018, pending before the Ld. Chief Judicial Magistrate, Kathua, State of Jammu and Kashmir to a court of competent jurisdiction at Chandigarh; b) Issue an appropriate writ, order or direction directing the concerned State authorities to provide adequate security in plain clothes police toi) the family members of the victim; ii) the local advocate - Ms. Deepika Singh Rajawat and her family members; iii) Shri Talib Hussain; c) Issue a writ, order or direction directing the concerned authorities to strengthen the security at the Juvenile Home where the alleged JCL/Juvenile Accused is lodged at present and to ensure that no unauthorized person is allowed to meet
19 him during his stay and also when he is required in the Court for deposition; d) Issue an appropriate writ, order or direction or like nature directing the Investigating Agency of the Respondent State to continue carrying out effective investigation, if necessary and report the progress of the same to this Hon ble Court and that this Hon ble Court may be pleased to monitor the same to ensure that the Investigation is concluded expeditiously and in a fair and transparent manner; e) Issue an appropriate writ, order or direction or like nature directing stay on the proceedings before the Ld. Chief Judicial Magistrate, Kathua arising out of FIR No. 10/2018, till the pendency of the present petition before this Hon ble Court; f) For costs of the petition; g) Pass such other order(s) or direction(s) as it deems fit in the facts of the present case and in the interests of justice. AND FOR THIS ACT OF KINDESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY SETTLED BY:- MS. INDIRA JAISING SENIOR ADVOCATE DRAWN & FILED BY NEW DELHI DRAWN ON: 15.04.2018 FILED ON: 16.04.2018 [SUNIL FERNANDES] Advocate for the Petitioner