Desirable but no carte blanche mandate,' High Court on plea to transfer rape case to woman judge [Read Order]

NEW DELHI: The Delhi High Court has declared that all cases of rape or sexual offences can not be transferred to a woman judge, saying it may create a problem in overall administration of justice.

"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," Justice Anish Dayal said.

The High Court declined to transfer a rape case lodged by a woman from a male to female judge, saying it will open the floodgates wherein all such cases would be required to be shifted to special courts dealing with Protection of Children from Sexual Offences (POCSO) matters or presided over by a woman judicial officer.

The court also reminded that mere apprehension of the woman can- not become a ground for transfer of cases to the POCSO courts even though the offence does not involve provisions of the POCSO Act.

"This would create a precedent which would open the floodgates where all cases being tried for offences under Section 376 of the IPC would be required to be transferred to special courts dealing with POCSO and/or presided by a wo- man judge," the court said in its April 5 order.

The victim, who filed a complaint under Section 376, 354A and 387 of the IPC and other provisions under the Information Technology Act, alleged misuse of her 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 HC contending that the proceedings should be presided over by a female judge and not a male judge.

The HC 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.

The woman's counsel said the trial pursuant to the complaint under Sections 376 (rape), 354-A (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 woman judge.

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

"Mere apprehension (which can be subjective) cannot become a ground for transfer," the HC said.

"It is of course expected that the Presiding Officer, be it male or female, are expected to handle such cases in a sensitive manner having due regard to directions passed by the Supreme Court and this Court inter alia while dealing with cases involving women and / or children and/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 HC added.

[Read Order]