"Justice Isn't For Accused Only; It Must Be Done To Victim Also": Allahabad HC Dismisses Gang-Rape Accused Case Transfer Plea

"Justice is not for the accused only, justice should also be done with the victim," remarked the Allahabad High Court as it dismissed 3 pleas filed by gang-rape accused seeking transfer of their trial from Jhansi District to any other district.

The Bench of Justice Anil Kumar Ojha observed that if a case is transferred, it will add insult to the injury to the gang-rape victim.

"If the case is transferred from District Jhansi to any other district, it will be inconvenient for the victim, witnesses, prosecution and for the society as a whole because the case sought to be transferred relates to gang rape," the Bench remarked as it dismissed their pleas.

The allegation against the applicant Vipin Tiwari and Rohit is that they shot a video on mobile while the victim was raped. The allegation against applicant Shailendra Nath Pathak is that he took Rs. 1000/- from the victim and also taken Rs. 2000/-.

Now, they filed the instant transfer pleas submitting that the victim's father is a practicing advocate in District Jhansi and therefore, no advocate is ready to appear on behalf of applicants in the District Court Jhansi.

It was further contended by them that the applicants have a constitutional right to engage a lawyer of their choice to contest the trial but that opportunity is being denied to the applicants due to the influence of the father of the victim.\

On the other hand, the counsel for opposite party no. 2, A.G.A. opposed the transfer applications and drew the attention of the Court towards the Vakalatnama filed on behalf of applicants Vipin Tiwari and Shailendra Nath Pathak by different advocates in District Court Jhansi.

However, it was an accepted fact that no Vakalatnama had been filed on behalf of applicant Rohit Kumar.

Lastly, the AGA submitted that since the matter in the case sought to be transferred is heinous and relates to gang rape, therefore, it should be rejected.

At the outset, the Court noted that if the case is transferred from Jhansi to other districts, the gang-rape victim would have to travel to another district which may ultimately result in hardship and mental agony to the victim.

"Not only this, all other witnesses who are the residents of Jhansi except the formal witnesses, will have to travel to other district where the case will be transferred. Justice is not for the accused only, justice should also be done with victim also and in the present case the victim has been subjected to gang rape," the Court added as it dismissed the pleas.

Further, the Court also opined that the applicants have every right to contest the case through a lawyer of their choice, however, the Court added, so far as the influence of the victim's father who is a practicing lawyer in Jhansi is concerned, there was no evidence on record.

Significantly, noting that though the vakalatnama on behalf of two applicants had been filed, but, no Vakalatnama had been filed on behalf of one of them, the Court directed the District Magistrate, Jhansi thus:

"...monitor the progress of the case and ensure that proper legal assistance is provided to the applicants during the trial. District Magistrate/S.S.P. Jhansi are also directed to ensure the production of witnesses before the court on the date fixed."

Case title - Vipin Tiwari v. State of U.P. and Another and connected matters 

Case Citation: 2022 LiveLaw (AB) 220

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