The Telegraph
Tuesday , September 10 , 2013
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Apex court turns down Kamduni case shift plea

The Supreme Court on Tuesday declined to stay a Calcutta High Court order transferring the Kamduni rape and murder case out of Barasat, saying the accused were entitled to a free and fair trial.

The apex court said it sympathised with the family of the brutalised college girl. But sympathies and sentiments aside, the court said, it had a duty to ensure that even the accused weren’t denied their constitutional right to free and fair trial.

The case is now being heard at the sessions court in Calcutta.

The court is scheduled to frame charges on Tuesday.

“Yes, what is wrong with the transfer order? The accused want a free and fair trial. You are the brother of the victim. We also have sympathy for the lady, not that we do not have any concern,” the court said, referring to the girl’s sibling who was among the petitioners.

“But then the accused feel that ‘we have been arrayed in the case’ and ‘we (the accused) do not expect a free and fair trial because of the hostile atmosphere prevailing inside and outside the court’. If the (high) court says ‘let it go to another court’, what is wrong in that?” the apex court asked while dismissing the appeal filed by the family challenging the trial’s transfer.

The bench added: “This court has already ruled that inconvenience cannot be a ground for transfer. Do you mean to say the other judge will not do justice? Sentiments, let us keep aside. Let us keep the sympathies aside. Yes, these things should not happen in a country where woman is worshipped but then the accused also have a right.”

The bench of Justices H.L. Dattu and M.Y. Eqbal posed the query to counsel Bijon Kumar Ghosh who was appearing for the family.

Ghosh cited the December 16 gang rape and murder of a paramedical student in Delhi and also the transfer plea made by dentist couple Rajesh and Nupur Talwar in the trial related to the 2008 killing of their teenaged daughter Aarushi and domestic help Hemraj in Noida.

In both cases, the counsel pointed out, the apex court had declined to transfer the case. In the present case, too, Calcutta High Court ought not to have transferred the case on the mere apprehension of the accused, Ghosh said.

Justice Dattu, heading the bench, disagreed with the submission and said the cited orders were passed in particular cases and no judgment was delivered that could have a binding effect on the apex court.

“An accused has a right to free and fair trial (under the Constitution). He feels ‘I will be heckled’. He has an apprehension and his apprehension is genuine,” Justice Dattu said.

Ghosh submitted that even if there was an apprehension among the accused, it was for the state government to provide them security and ensure law and order. He pointed out that there was no violence or law and order problem necessitating transfer of the trial.

On the contrary, he said, grave inconvenience would be caused to the girl’s family who are very poor and several other witnesses who have to travel 45 minutes to depose at the new venue.

The family had filed another special leave petition pleading that a court-monitored special investigation team should conduct further investigations.

The petition did not come up for hearing on Monday.