The Supreme Court bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar on Thursday has directed the Jammu and Kashmir police to interrogate three witnesses in the Kathua rape and murder case from a visible distance and in the presence of their family members.
After the apex court transferred the trial in the Kathua gangrape and murder to the district of Pathankot in the state of Punjab, the said persons, being students of a college in Muzaffarnagar, Uttar Pradesh, have approached the Court under Article 32, praying that the petitioners, having been made witnesses thereto, be accompanied by two lawyers when summoned by the Crime Branch of the J & K Police and that they may be accorded protection by Central Security Forces.
In response to a suggestion by Chief Justice Misra, Mr. Datar said, “we cannot just bring a lawyer with us on the auto rickshaw...it is not so simple...they (the officials) have beaten us...”
Advocate Ravi Sharma counsel for petitioner number 2 and 3 submitted that "the witnesses complained of torture to the magistrate in their 164 statement, for two months the state did not bother to enquire into allegation of torture and now they have summoned us again in order to extort favourable statement, this can nor be permitted and witness right have to be safeguarded".
“Are you summoning them after their statements under section 164 have been recorded?”, inquired the Chief Justice.
“The first chargesheet has been filed...the committal is over...now the charge has to be framed...we are investigating in the light of fresh evidence”, responded Mr. Patwalia.
Not inclined to peruse the status report, the Chief Justice deliberated, “We are not concerned with the investigation...they (the petitioners) may be permitted security and the presence of an advocate at some distance...”
“This will embolden them...they have made statements that have surfaced as being inaccurate in the subsequent investigation...”, argued Mr. Patwalia.
When the bench sought to direct that the Respondents conduct the investigation in a fair manner without any harassment of the witnesses, Mr. Datar pressed, “one of them is a 15-year-old boy...please atleast allow a relative to accompany...”
Countering, Mr. Patwalia suggested, “Your Lordships may add a sentence that should any grievance arise, they may approach this court during the vacations”.
When the Chief Justice sought to allow a relative to remain within ‘reasonably visible distance’, Mr. Patwalia attempted to plead, “visible distance will require the relative to be in the investigation room...please let it only be ‘reasonable distance’...otherwise it will be like answering questions from the comfort of their living room...”
“You maintain no distinction between interrogating an accused and taking the statement of a witness?”, inquired Justice Khanwilkar rhetorically.
“We have an obligation towards human rights...we have already transferred the trial...but our directions cannot be used for any maltreatment by investigating agencies...”, noted the Chief Justice.
It may be noted that the petition also contains a prayer for the investigation to be entrusted to an independent agency and that the bench had on Wednesday asserted that the investigation shall not be transferred.
In the present petition, It has been contended that the petitioners were summoned as witnesses by the Crime Branch, Jammu and Kashmir police and made witnesses in infamous Kathua rape/murder case in connection with FIR dated January 12 under section 363, Ranbir Penal Code, 1989.
The petition avers that Article 22(1) of the Constitution of India gives a guarantee to a person arrested and detained to be defended by a legal practitioner of his choice. Even section 340(1) of Code of Criminal Procedure gives a similar right to the accused. It is elementary that if a lawyer whom the accused has engaged for his defence is put under a threat of Criminal Prosecution he can hardly discharge his professional duty of defending his client in a fearless manner. Reliance is placed on the judgment of the Supreme Court in Sri Jayendra Saraswathy Swamigal (II), T.N. v. State of Tamil Nadu & Ors. (2005).
Further, Vineet Narain v. Union of India (1998) has directed that steps should be taken immediately for the constitution of able and impartial agency comprising persons of unimpeachable integrity to perform functions akin to those of the Director of Prosecution in England. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. Relying on Karnel Singh v. State of M. P. (1995), it has been argued that it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.