The Single Bench of the Delhi High Court in the case of Ms. M Prosecutrix vs State of NCT of Delhi & Ors. consisting of Justice Anish Dayal held that mere apprehension of the petitioner (which can be subjective) cannot become a ground for transfer of rape cases to POCSO courts even though the offence does not involve provisions of the POCSO Act.
Facts:
The Ld. APP filed a status report in response to earlier orders of this Court, where the learned attorney for the petitioner referred to Section 26 Clause A (III) of the CrPC and the second proviso to sub-Section 327(2) of the CrPC as well as the instructions of the Hon’ble Supreme Court in Re: Assessment of the Criminal Justice System in Response to Sexual Offenses. According to the status report, the complaint’s facts essentially alleged that the complainant’s photos were used inappropriately on a porn website. According to the FIR, the accused was detained on November 11, 2020, and his laptop had previously been taken in a previous case. The case was scheduled for arguments on the charge and other proceedings before the Ld. Trial Court.
Contentions Made:
Petitioner: Relying on Re: Assessment of the Criminal Justice System in Response to Sexual Offences, it was contended that the trial related to the complaint (in SC No. 53/2021 under sections 376, 354A, and 387 of the IPC and sections 66 E and 67A of the Information Technology Act) may be moved to a newly established court of the ASJ (POCSO) that is presided over by a female judge. It was also contended that the prosecutrix did not feel at ease when appearing before the court and that the Ld. Presiding Officer had been insensitive in support of this plea. Relying on Nipun Saxena & Anr. v. UOI it was contended that fast-track courts, established for the trial of cases under the POCSO Act, might be used not only for cases under the POCSO Act but also for cases against women. It was argued that the Ld. Presiding Officer was presented with these arguments but was unwilling and resolute not to consider them in this case.
Observations of the Court and Judgment:
The Bench opined that a review of the aforementioned clauses would demonstrate that there was no rigid requirement that cases brought under Section 376 IPC be heard by a court presided over by a woman judge. The proviso to Section 26(a)(iii) expressly states that offenses covered by the proviso, such as those under Section 376 of the Indian Penal Code, shall be tried “as far as practicable” by a court presided over by a woman. In the decision cited above, the Hon’ble Supreme Court referred to this provision in paragraph 17 of the aforementioned order as well as the second proviso to subsection 327(2) CrPC, which states that in camera trials shall be conducted by a court presided over by a woman judge or magistrate as far as practicable. The court noted that the insertion of the aforementioned proviso had a very important purpose and that the phrase “as far as practicable” could not be used to overcome the mandate ordinarily.
It opined that even while the offense did not entail POCSO Act provisions, the mere apprehension of the petitioner, which could be subjective, could not serve as a basis for the transfer of cases to POCSO courts. All cases being tried for offenses under section 376 IPC would thereafter be needed to be transferred to special courts handling POCSO and/or presided over by a woman judge as a result of this setting a precedent that would generate a chain reaction.
It further opined that a transfer could potentially cause issues with the administration of justice, jurisdictional allocation, and preservation, even though this may be ideal as per the general administration of justice (as noted by the Hon’ble Supreme Court). This was because no such directions had yet been passed on the administrative or judicial side for a carte blanche mandate. Additionally, as the Ld. APP argued the petitioner’s claimed reasons do not meet the requirements for transfer under section 407 of the CrPC.
However, it noted it was expected that the Ld. Presiding Officer, whether male/female, would handle these cases delicately and with due consideration for the directives issued by the Hon’ble Supreme Court and this Court, inter alia, when dealing with cases involving women, children, and/or sexual offenses. The Court disposed of this case with the abovesaid observations.
Case: Ms. M Prosecutrix vs State of NCT of Delhi & Ors.
Citation: TR.P.(CRL.) 6/2023 & CRL.M.A. 1007/2023
Bench: Justice Anish Dayal
Advocates for Respondents: Mr. Ritesh Kumar Bahri, APP for the State. Mr. Gurpreet Singh, Adv. for R-3.
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