IMPORTANT POINT
Case may be transferred depending upon facts of the case.

ORDER

The pivotal fact around which the controversy centers, is abduction, rape and murder of an eight year old girl. An F.I.R. was lodged at Hiranagar Police Station, Kathua, which was registered as F.I.R. No.10 of 2018. The investigating agency, namely, the Crime Branch, which took over the investigation on 22nd January, 2018 from the local police has already filed the charge-sheet on 9th April, 2018, in the court of Chief Judicial Magistrate, Kathua in the State of Jammu & Kashmir.

2. As asserted in the writ petition, 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 is not possible at Kathua. Be it noted, the High Court of Jammu & Kashmir had called for a report from the District & Sessions Judge, Kathua, who has submitted the report and the same has been brought on record. Suffice it to mention that the report indicates that there had been some obstruction by the Bar Association at Kathua. We do not intend to dwell upon the same in detail.

3. The issues that emerge for consideration are whether the charge-sheet filed by the Crime Branch should be treated to have been dented to have an investigation by the Central Bureau of Investigation, to transfer the case outside the District of Kathua or outside the State of Jammu & Kashmir, the duty of the State to provide protection to the accused persons, one of whom is a juvenile and the witnesses, if the case is transferred to another place, what kind of protection is to be given to the witnesses and further what kind of arrangements can be made so that the witnesses not only feel protected, but depose absolutely in a fearless manner and that in the case of transfer to some other State, who should be allowed to prosecute the trial and how the trial Judge can be rendered assistance.

4. Though various submissions were advanced by Ms. Indira Jaising, learned senior counsel appearing for the petitioner, the crux of the matter is how to proceed with the trial so that it is effective regard being had to the fundamental principle of fairness of a trial. She has drawn our attention to many an authority of this Court. We need not refer to all the judgments, except two. In Maneka Sanjay Gandhi vs. Rani Jethmalani (1979) 4 SCC 167, the Court has observed thus:-

“2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.

5. ... It is becoming a frequent phenomenon in our country that court proceedings are being disturbed by rude hoodlums and unruly crowds, jostling, jeering or cheering and disrupting the judicial hearing with menaces, noises and worse. This tendency of toughs and street roughs to violate the serenity of court is obstructive of the course of justice and must surely be stamped out. Likewise, the safety of the person of an accused or complainant is an essential condition for participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, the reques