Not on mere apprehension: Delhi HC refuses to transfer rape case from male judge

NEW DELHI: The Delhi high court has declined to transfer a rape case from a male judge, underlining that mere apprehension cannot be a ground for the transfer and that accepting such a request would open floodgates where all such cases would be required to be shifted to special courts dealing with Pocso matters or presided over by a woman judicial officer.

The rape case is pending trial in a Delhi court where it is at the stage of arguments on the framing of charges.

The rape survivor, who also accused the man of sexual harassment and extortion, sought orders to transfer the case to a female judge.

Justice Anish Dayal said that presiding officers, male or female, are expected to handle such cases in a sensitive manner having due regard to directions passed by the Supreme Court and the high court. “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’,” justice Dayal said.

The court said that there was no inflexible mandate for the trial of matters under Section 376 IPC (rape) to be dealt with by a court presided over by a woman judge.

The petition, which asked the high court to shift the case to a designated judge for child sex abuse cases, said she didn’t feel comfortable appearing before the court and that the presiding officer has been insensitive.

The bench 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”.

The court said 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.

“Besides, as contended by the prosecutor, the grounds stated by the petitioner do not come within the purview of the conditions for the transfer of the case,” justice Dayal added.