'May Create Difficulties': Delhi HC Refuses Transfer Of Rape Case To Female Judge

Delhi High Court recently disregarded the plea of a woman to transfer a rape case from a male judge to a bench presided by female judge. The court noted that it would create difficulties in handling such cases because everyone will ask for a female judge for their cases.

Rape cases and their hearings are sensitive matters for jurisdiction. The judges have to make sure that the hearing of such cases is not traumatising for survivors and they can comfortably put forward their testimony. Many rape cases are unreported because of the shame attached to them.  The survivor and her family feel shameful to be presented before the court for a hearing and to state the facts about the incident in front of a male judge. Hence, the administration set up Fast Track Special Courts for POCSO and IPC Section 376 (for rape) cases that are presided over by a female judge.

Recently, Delhi HC received a plea from a woman to transfer her case to a court presided by a woman but HC refused to accommodate the plea saying that the case does not require to be transferred to a female judge.

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Transfer of rape case to female judge

The court reportedly mentioned that if the court agrees to transfer this case, there would be many other such cases that will demand a transfer to a female judge. Though it may sound adequate, it creates a lot of hurdles in legal proceedings and the delivery of justice. Hence, no transfer of case shall be permitted unless the Supreme Court says so. The court also said that the gender of the judge does not matter as all judges have to follow the rules and directions of SC and handle cases of sexual offences against women and children sensitively.

The bench headed by Justice Anish Dayal was hearing the plea regarding a case of misuse of a woman's pictures on porn sites and the accused was arrested at the earliest back in November 2020 as soon as the woman filed a complaint. The man was charged with Indian Penal Code Sections 387, 354A and 376 for harassment, causing grievous hurt to a person to commit extortion and rape and Sections 67A and 66E of Information Technology Act for publishing sexually explicit material in electronic form and violation of privacy.

The proceedings for the case were going on when the woman filed a plea to transfer her case to a court headed by a female judge stating that she felt uncomfortable presenting herself in front of the court and claimed the presiding officer to be insensitive.

The court assured that the bench will make sure that the judge follows the directions during the proceedings but since the case did not fall under POCSO Act and the court cannot initiate transfer only on the apprehension of the woman. The court noted that the case did not fall under the category for transfer of cases under Code of Criminal Procedure. The woman claimed in the plea that the SC has stated that such cases should be presided over by a female judge as far as possible as per Code of Criminal Procedure Section 26.

However, the court said that the case does not fall under the category of 'as far as possible' mandatory transfer of the case and the HC will continue with the male bench.