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CASE NO.: Appeal (crl.)  61-62 of 2005

PETITIONER: Fatima Riswana                                             

RESPONDENT: State Rep. By A.C.P., Chennai & Ors.               

DATE OF JUDGMENT: 11/01/2005

BENCH: N.Santosh Hegde & S.B.Sinha

JUDGMENT: J U D G M E N T (Arising 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.         Heard learned counsel for the parties.   Leave granted.  

       The 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.  The 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.  

       When 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

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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.   In 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).

       It is 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.  

       After 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.  

       Soon 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. In 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

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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.

       Countering 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.          The 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.

       As 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.

As 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

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presence of male persons. This is a matter of procedure to be adopted  by the Presiding Officer.

It was 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.  

It is 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  of Punjab Vs. Gurmit Singh (supra).  

       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 present appeal.           For 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.          It is ordered accordingly.         Appeals allowed.  

Criminal Appeal No.   63  of 2005 (Arising out of SLP(Crl.)No.1606 of 2004)                                                         

       In view of our order in Crl.A.Nos\005\005\005\005of 2005 arising out of  SLP(Crl.)Nos. 1518-1519 of 2004, there is no need to pass any separate  order, hence, Crl.A.No\005.\005..of 2005 arising out of SLP(Crl.)No. 1606 of  2004 is disposed of in terms of the above order.