High Court Refuses To Transfer Rape Case From Male To Female Judge. Here's Why

The Delhi High Court has refused to transfer a rape case filed by a woman from a male to female judge, saying it will open floodgates where all such cases would be required to be shifted to special courts dealing with POCSO matters or presided over by a woman judicial officer.

The high court said mere apprehension of the petitioner, which can be subjective, cannot become a ground for transfer of cases to the Protection of Children from Sexual Offences (POCSO) courts even though the offence does not involve provisions of the POCSO Act.

Justice Anish Dayal said presiding officers, male or female, are expected to handle such cases in a sensitive manner having due regard to directions passed by the Supreme Court and the high court while dealing with matters involving women or children or sexual offences.

"In this context, it may be appropriate to remind ourselves of the famous aphorism: 'Justice must not only be done, but must also be seen to be done'," the high court said.

The high court was hearing a case involving allegations of misuse of the complainant's photographs on a porn site following which the accused was arrested and his laptop seized.

While the criminal case is pending before a trial court at the stage of arguments on framing of charges, the woman approached the high court contending that the proceedings should be presided over by a female judge and not a male judge while citing certain provisions of the CrPC.

The high court, after perusing the provisions, said there is no inflexible mandate as regards the trial of matters under Section 376 IPC (rape) to be dealt with by a court presided over by a woman judge.

Section 26 (a)(iii) proviso of CrPC categorically provides that offences mentioned (including section 376 IPC) shall be tried "as far as practicable" by a court presided over by a woman.

The petitioner's counsel said the trial pursuant to the complaint under sections 376(rape), 354A (sexual harassment), 387 (putting someone in fear of death of grievous hurt to commit extortion) of the IPC and sections 66 E and 67 A of the Information Technology Act may be transferred to a newly created court of the ASJ (POCSO) which is presided over by a lady judge.

The plea claimed the complainant woman does not feel comfortable while appearing before the court and the presiding officer has been insensitive.

The high court, however, said, "Be that as it may, mere apprehension of the petitioner (which can be subjective) cannot become a ground for transfer of cases to POCSO courts even though the offence does not involve provisions of POCSO Act".

"This would create a precedent which would open floodgates where all cases being tried for offences under section 376 IPC would be required to be transferred to special courts dealing with POCSO and/or presided by a woman judge," it said.

The high court said even though this may be ideally desirable in the overall administration of justice, as stated by the Supreme Court, at this stage when no such directions have been passed on the administrative or judicial side for a carte blanche mandate, a transfer may potentially create difficulties in administration of justice, allocation and preservation of jurisdictions.

Besides, as contended by the prosecutor, the grounds stated by the petitioner do not come within the purview of the conditions for transfer of the case, it said.
 

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