Mere Apprehension Of Victim No Ground To Transfer Rape Case From Male Judge: Delhi High Court

The Delhi High Court has observed that mere apprehension of a victim is no ground to transfer a rape case to special courts designated to deal with POCSO cases or those presided by a woman judge.

Justice Anish Dayal observed that such a situation would create a precedent which would open floodgates where all rape cases would be required to be transferred to special POCSO courts or to woman judges.

While refusing to transfer a rape case filed by a woman to a female judge's court from the court presided over by a male judicial officer, the court 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.”

Justice Dayal however added that it is expected that the judges, whether male or female, must handle such cases in a sensitive manner, having due regard to its directions as well as those passed by Supreme Court while dealing with cases 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 court said.

The case was filed by the victim whose photographs were allegedly misused on a porn site. The accused was arrested on November 11, 2020 and his laptop was also seized.

While the matter was listed before the trial court for arguments on charge, the woman moved High Court seeking to transfer the case to a court presided over by a woman judge.

While denying relief to the victim, the court observed that a perusal of the relevant provisions show that there is no “inflexible mandate” as regards the trial of rape cases to be dealt by a court presided over by a woman judge.

The court also supported the submission made by the prosecution that the grounds stated by the victim did not come within the purview of the conditions for transfer under section 407 of Cr.PC.

“Even though this may be ideally desirable in the overall administration of justice (as stated by the Hon’ble 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,” the court said.

Title: MS. M PROSECUTRIX v. STATE OF NCT OF DELHI & ORS.

Citation: 2023 LiveLaw (Del) 294

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