Delhi HC refuses to transfer rape case from male to female judge: ‘Will open floodgates’

“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. 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 HC said.

The high court, while disposing of the plea, said it is expected of the presiding officer, whether male or female, 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 cases involving women or children and/or sexual offences.

While concluding, Justice Dayal observed, “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 also noted the prosecution’s contentions that the grounds stated by the woman do not come within the purview of the conditions for transfer under the Code of Criminal Procedure.

The HC was hearing a plea seeking transfer of the matter to the newly created Fast Track Special Court (FTSC), POCSO, presided over by a woman judge of some other district. The woman contended that such proceedings should be presided over by a female judge relying on the directions of the Supreme Court in “re: Assessment of the Criminal Justice System in Response to Sexual Offences, SMW”, which states that as per Section 26 of the Code of Criminal Procedure, trial for such offences are to be conducted by court presided by a woman judge as far as practicable.
The plea claimed that the woman did not feel comfortable while appearing before the trial court and the presiding officer had been insensitive.

The case involved allegations of misuse of the woman’s photographs on a porn site, and as per Delhi Police status report, once the FIR was filed, the accused was arrested on November 11, 2020, while his laptop was already seized by police in a previous matter.
The man had been booked under IPC sections 376 (rape), 354A (sexual harassment) and 387 (putting person in fear of death or of grievous hurt, in order to commit extortion) and sections 66E (violation of privacy) and 67A (punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form) of the Information Technology Act. According to the police status report, the matter is pending before the trial court and was listed for arguments on charge and other proceedings.

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. On the reference to the Supreme Court decision by the woman, the HC said the apex court on the provisions had observed that the “insertion of the above proviso has a very important object and the rider of ‘as far as practicable’ cannot be used to overcome the mandate in an ordinary manner.”