Mere Apprehension Not A Ground To Transfer Cases To Special Courts Dealing With POCSO Cases Or Presided By Woman Judge: Delhi HC

The Delhi High Court has observed that mere apprehension of the petitioner cannot become a ground for the transfer of cases to POCSO (Protection of Children from Sexual Offences) Courts and therefore, refused to transfer a rape case from a male to a female judge.

A Single Bench of Justice Anish Dayal 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. 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 Bench further said that the grounds stated by the counsel for the petitioner do not come within the purview of the conditions for transfer under Section 407 of Cr.PC.

APP Ritesh Kumar Bahri and Advocate Gurpreet Singh appeared on behalf of the respondents.

In this case, the photographs of the complainant were misused on a porn site, and pursuant to the FIR, the accused was arrested and his laptop also got seized. The matter was now before the Trial Court and listed for arguments on charge and other proceedings.

The petitioner had contended that the proceedings should be presided over by a female judge and not a male judge. It was stated in her plea that she was not feeling comfortable while appearing before the Court and that the Presiding Officer was insensitive.

The High Court in view of the above facts noted, “A perusal of the said provisions would show that there is no inflexible mandate as regards the trial of matters under Section 376 IPC to be dealt with by a Court presided over by a woman judge. Section 26 (a)(iii) proviso categorically provides that offences mentioned in the said proviso (inter alia section 376 IPC) shall be tried “as far as practicable” by a Court presided over by a woman.”

The Court also quoted the famous aphorism i.e., “Justice must not only be done, but must also be seen to be done”.

“It is of course expected that the Ld. 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 Hon’ble Supreme Court and this Court inter alia while dealing with cases involving women and / or children and/or sexual offences”, asserted the Court.

Accordingly, the Court disposed of the plea and refused to transfer the case.

Cause Title- M Prosecutrix v. State of NCT of Delhi & Ors.

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