Riswana Vs. State Rep. by A.C.P., Chennai & Ors  Insc 28 (11 January
Hegde & S.B.Sinha
out of SLP (Crl) Nos.1518-1519 of 2004) Criminal Appeal Nos. 61-62 of 2005
(Arising out of SLP(Crl.)Nos.1518-1519 of 2004 With CRIMINAL APPEAL NO. 63 OF
2005 (Arising out of SLP (Crl) No. 1606 of 2004) SANTOSH HEGDE, J.
learned counsel for the parties.
appellant is a prosecution witness in S.C. No. 9 of 2004 wherein respondents 2
to 6 are the accused facing trial for offences punishable under Section 67 of
Information Technology Act, 2000 r/w Section 6 of Indecent Representation of
Women (Prohibition) Act, 1986, u/s 5 & 6 of Immoral Traffic (Prevention)
Act,1956, u/s 27 of Arms Act, 1959 and Sections 120 (B), 506 (ii), 366, 306
& 376 I.P.C.
said trial relates to exploitation of certain men and women by one of the
accused Dr. L. Prakash for the purpose of making pornographic photos and videos
in various acts of sexual intercourse and thereafter selling them to foreign
websites. The said sessions trial came to be allotted to the V Fast Track Court, Chennai which is presided over by
a lady Judge. That court also happened to be the "Mahila Courts"
constituted vide Government Notification G.O.Ms. No. 556 Home (Courts II)
Department of the Tamil Nadu Government, constituted to exclusively deal with
offences against women and for speedy trial of cases of offences committed
against women and also case under other Social Laws enacted by the Central and
the State Governments for the protection of women.
the said trial before the V Fast Track Court was pending certain criminal
revision petitions came to be filed by the accused against the orders made by
the said court rejecting their applications for supply of copies of 74 Compact
Discs (CDs) containing pornographic material on which the prosecution was
relying. The said revision petitions were rejected by the Madras High Court by
its order dated 13th February, 2004 holding that giving all the copies of the concerned
CDs might give room for copying such illegal material and illegal circulation
of the same, however the court permitted the accused persons to peruse the CDs
of their choice in the Chamber of the Judge in the presence of the accused,
their advocates, the expert, the public prosecutor and the Investigating
Officer. While doing so the High Court observed thus:- "Learned Public
Prosecutor and the Learned Counsel for the petitioners submitted that there
will be some embarrassment for them to view the said C.Ds in the Chambers of
the learned District Judge who is a lady Officer. It is true that there may be
some embarrassment for the Presiding Officer of the said Court when she being a
lady Officer. But, neither the counsel for the accused nor the accused themselves
have filed any application for transfer of the said case to some other court
presided by a male officer.
such circumstances, it is open to the learned District Judge concerned whether
the said case should be transferred to some other court, if she feels
embarrassment or it is open to the parties themselves to file transfer
petitions at the earliest opportunity without causing any further delay in the
trial of the case since already this court has ordered expeditious trial of the
case since all the accused are in jail. (Emphasis supplied).
seen from the above that the court anticipated the possibility of some
embarrassment being caused to the Presiding Officer who was a lady if the CDs
were to be viewed in the Chamber of the Judge in the company of other male
persons, therefore, the court observed that if the Presiding Officer felt any
embarrassment in trying the case she could transfer the case to another
appropriate court presided over by a male Judge.
the above order was made and the matter went back to the concerned Fast Track
Court another criminal revision petition, (Criminal O.P. No. 5989 of 2004) was
filed by the 6th respondent herein who is an accused in the trial possibly
taking clue from the observations made by the High Court in the previous
revision petition, for transfer of the sessions case from the file of the V
Fast Track Court to another court within the jurisdiction of Chennai and
presided by a male Judge. It is in this revision petition that the High Court
by the impugned order has directed the transfer of S.C. No. 9 of 2004 from the
file of the V Fast Track Court, Chennai (which as stated above is presided by a
lady Judge) to the file of IV Fast Track Court, Chennai which is presided over
by a male Judge. The basis of the transfer was that the entire proceedings in
the said trial would be about the exploitation of women and their use in sexual
escapades by the accused, and the evidence in the case is in the form of CDs.
and viewing of which would be necessary in the course of the trial, therefore,
for a woman Presiding Officer it would cause embarrassment. While transferring
the said case on the above ground the High Court recorded the consent of the
public prosecutor for such transfer. But it is pertinent to note that while so
transferring the witnesses like the appellants herein were not heard because
they were not parties to the proceedings nor did the court take into
consideration the object of the creation of Mahila Courts.
after coming to know of the transfer of the sessions trial from the V Fast
Track Court to IV Fast Track Court, the appellant moved a criminal revision
petition O.P. No. 9528 of 2004 contending that such transfer of the case from a
court presided over by lady Judge to a court presided over by a male Judge
would embarrass the appellant, she being a woman. It was also contended that
such transfer runs counter to the object of the creating the Mahila Courts as
also to the decision of this Court in the case of State of Punjab vs. Gurmit
Singh 1996 (2) SCC 384. The High Court rejected the said prayer of the
petitioner hence this appeal.
this appeal the learned senior counsel appearing for the appellant contended
the entire approach of the High Court in the instant case runs counter to the
interest of the witnesses who are really in the shoes of victims. It is also
contended that the concerned Presiding Officer having not expressed any
embarrassment in conducting the trial herself the court could not have presumed
such an embarrassment based on the fact that the Presiding Officer is a lady
officer. It is submitted that the embarrassment arises from an attitude of mind
of a person and the same cannot be confined to lady Officer alone. Hence, the
High Court ought not to have transferred the case solely on the ground that the
V Fast Track Court is presided over by a lady Officer.
At any rate, it is contended that when the appellant brought to the notice of
the court the problems faced by her in view of the transfer of the said case to
a court presided over by a male Presiding Officer the High Court ought to have
appreciated her point of view and allowed the petition by re-transferring the
trial to IV Fast Track Court.
the above argument of the learned counsel for the respondents contended the law
officer appearing in the case had expressed their embarrassment in conducting
the trial before a lady Presiding Officer and even though the Presiding Officer
did not expressly record her embarrassment, it was apparent that she too wanted
the case to be transferred to another court, therefore, this Court should not
interfere with the order of transfer. It is also submitted on behalf of the
respondents that the appellant though arrayed as a witness, for all purposes
was an accused herself being involved in the illegal activities of accused No.
1, hence re- transferring at her request should not be permitted. It is also
submitted that the High Court has erred in not granting the copies of the CDs
on which the prosecution based its case.
last of the argument pertaining to the issuance of copies of CDs need not be
gone into in this appeal because same does not arise in this appeal. We are
also told that the respondents have already filed another SLP challenging that
part of the High Court order by which they were denied the copies of the CDs.
Therefore, we will confine ourselves to the correctness of the order of
transfer of the sessions trial from V Fast Track Court to IV
Fast Track Court by
the High Court and the correctness of the rejection of the petition filed by
the appellant for re-transferring the case to the V Fast Track Court.
noted above, the sole ground on which the High Court directed the transfer of
the case at the instance of the accused on 13-2-2004 was that the proceedings
in the trail being one involving pornographic acts and the evidence in the case
is such that it would embarrass a lady Presiding Officer. It is to be noticed
herein the concerned lady Presiding Officer has not sought for or directed the
transfer of the case. This is an inference drawn by the High Court merely based
on the fact that the Presiding Officer is a lady. It is also to be noticed at
this stage that at an earlier stage the High Court had given the choice of the
transfer to the Presiding Officer herself but she did not direct or seek the
transfer of the trial. In this background, we are unable to accept the
correctness of the presumption drawn by the High Court.
contended by the learned counsel for the appellant embarrassment is a state of
mind which is more individual related than related to the sex of a person. It
is but natural that any decent person would be embarrassed while considering
the evidence in a case like this but this embarrassment cannot be attributed to
a lady Officer only. A Judicial Officer be it a female or male is expected to
face this challenge when the call of duty required it. It is expected of a
Judicial Officer to get over all prejudices and predilections when situation
requires, hence in our considered opinion the High Court was not justified in
presuming embarrassment to the Judicial Officer solely on the ground that she
is a lady Officer even when the Officer concerned had not expressed any
reservation in this regard. If situation requires the Presiding Officer may
make such adjustments/arrangements so as to avoid viewing the CDs in the
presence of male persons. This is a matter of procedure to be adopted by the
nextly contended on behalf of the respondent that even the prosecution counsel
and the defence counsel would feel embarrassed to appear before the court
presided over by a lady Officer in a trial like this. But we think this cannot
be a ground for transfer of the case. So far as the lawyers are concerned they
have accepted the brief knowing very well the facts of the case, it is left to
them to decide whether to continue in or not. Their embarrassment cannot be a
ground for transfer of the case in a situation like this.
also to be seen that the High Court has considered only the embarrassment that
may be caused to the lawyers and Judges and has failed to take into consider
the embarrassment that may be caused to the lady witnesses like the appellant
herein who have been summoned in this case to appear before a court presided
over by a male Judge to give evidence more where their own acts are part of the
prosecution evidence. Therefore, if at all, there was a question of avoiding
the embarrassment caused to any of the people involved in the case, in our
opinion, the court ought to have considered the embarrassment that would be
caused to the witness who are actually in the nature of victims while giving
evidence of their acts before a male Judge. The learned counsel for the
appellant, in our view, was justified in this context in relying upon the
judgment of this court in the case of State The argument of the learned counsel
for the respondent that a retransfer at the instance of the appellant ought not
to be done because the appellant herself is in a position of an accused in this
trial cannot be countenanced. The fact that the respondent wants the appellant
to be arrayed as an accused has no relevance for the purpose of deciding the
the reasons stated above, we are of the considered opinion that this appeal has
to be allowed in the sessions case No. 9 of 2004 now transferred to the IV Fast
Track Court, Chennai be transferred back to the V Fast Track Court, Chennai and
the trial be proceeded before the said Fast Track Court as expeditiously as
possible keeping in mind the direction issued by the High Court in this regard.
Appeal No. 63 of 2005 (Arising out of SLP(Crl.)No.1606 of 2004) In view of our
order in Crl.A.Nosof 2005 arising out of SLP(Crl.)Nos. 1518-1519 of 2004, there
is no need to pass any separate order, hence, Crl.A.No...of 2005 arising out of
SLP(Crl.)No. 1606 of 2004 is disposed of in terms of the above order.