Gujarat High Court
Sarabjeet Kaur D/O Harmindersingh ... vs State Of Gujarat & on 1 April, 2013
Author: A.J.Desai
Bench: A.J.Desai
SARABJEET KAUR D/O HARMINDERSINGH AHUJA....Applicant(s)V/SSTATE OF GUJARAT R/CR.RA/548/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 548 of 2012 ================================================================ SARABJEET KAUR D/O HARMINDERSINGH AHUJA Versus STATE OF GUJARAT & ORS ================================================================ Appearance: MR SIDDHARTH H DAVE, ADVOCATE for the Applicant MR MITESH R AMIN, ADVOCATE for the Respondents No. 2 - 3 MR. RAHUL R DHOLAKIA, ADVOCATE for the Respondents No. 2 - 3 NOTICE SERVED for Respondent No. 4 MS JIRGA JHAVERI APP for the Respondent No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 01/04/2013 ORAL ORDER
1 Affidavit-in-rejoinder filed by the applicant has been taken on record.
2 By way of the present application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, the applicant-original complainant has challenged the judgment and order dated 5.10.2012, passed by the learned Sessions Judge, Patan, in Criminal Misc. Application No.257 of 2012, by which the application filed by the present applicant under Section 408 of the Criminal Procedure Code, 1973 to transfer the case to a Lady Judge, is rejected.
3 Brief facts emerges from the record are as under:
That the present applicant has filed a complaint with Siddhpur Police Station, on 25.9.2009, under the provisions of Sections 498-A, 406, 420, 495, 504, 506(2) and 114 of the Indian Penal Code as well as under Sections 3 and 7 of the Dowry Prohibition Act. It is alleged that she got married with the respondent No.2 Mabirsingh S/o Ravinder Singh Dang on 13.11.2008 and thereafter started staying at her matrimonial home. It was alleged that, though, the father of the complainant had given sufficient ornaments and gifts as well as cash of Rs.4 lacs at the time of her marriage, the respondent No.2, who is her husband and respondents No. 3 and 4, who are the father-in-law and mother-in-law, started demanding more and more dowry from her. It is also alleged that after four days of marriage, the respondent No.2 husband took the complainant at Udaipur and after forcing her to consume liquor, some video clippings as well photographs were captured by him and the said clippings were recorded in the camera. The said photographs were also loaded in a pen drive. Allegations have been made about the impotency of her husband in the FIR.
4 After the investigation, a charge sheet was filed in the court of learned Judicial Magistrate, First Class, Siddhpur. The case is registered as Criminal Case No.414 of 2010. The matter remained pending for some time.
5 On 28.5.2012, the applicant complainant filed an application, being Criminal Misc. Application No. 257 of 2012, before the learned Principal Sessions Judge, Patan, under Section 408 of the Criminal Procedure Code, for transferring the case to a Lady Judge at Patan since no Lady Judge was available at Siddhpur. It is the case of the applicant-complainant that there are video clippings and obscene photographs and therefore she was not comfortable with a Male Judge.
The learned Sessions Judge vide Order dated 5.10.2012 rejected the application having found no sufficient reasons to exercise his power under Section 408 of the Criminal Procedure Code. Hence, the present Revision Application.
6 Mr. Siddharth H. Dave, learned Advocate, appearing for the applicant has read over the FIR lodged with Siddhpur Police Station. The allegations levelled against the respondent No.2 in the said FIR is with regard to the video clippings recorded in the camera, and the applicant, being a lady, is not comfortable with a Male Judge in deposing the same. In support of her application, the learned Advocate for the applicant has relied upon two decisions of the Hon ble Apex Court i.e. (i) in the case of State of Punjab vs. Gurmit Singh and Ors., as reported in AIR 1996 SC 139 and (ii) in the case of Fatima Riswana vs. State Represented by ACP, Chennai and Ors., as reported in (2005) 1 SCC 582 and submitted that the Hon ble Apex Court has observed that no further embarrassment shall be caused to the victim and as far as possible the case would be tried by a Lady Judge.
6 On the other hand, learned Advocate Mr. Rahul R. Dholakia for the respondent No.2, submitted that the allegations, which are made in the FIR are with regard to video clippings and photographs, are in the nature of documentary evidence and if they are proved, appropriate orders can be passed after the trial. He further submitted that even if the entire FIR is perused, except a few words with regard to such video clippings or taking photographs, no other details are provided by the complainant which embarrassed her in deposing before a Male Judge. He has also taken me through the affidavit-in-reply filed by the respondent No.2 accused - husband along with its annexures and tried to submit that the Investigating Agency had seized the hard disk, pen drive, mobile phone and a Digital camera and the same were sent to the Forensic Science Laboratory and no obscene material is found by the FSL. The said report is a part of the charge sheet. He further submitted that the applicant has deposed with regard to the same so called video clips/photographs before the learned Principal Civil Judge, Patan, in Regular Civil Suit No.28 of 2010 which is pending for adjudication before a Male Judge and he has also annexed the depositions of the complainant and submitted that she has made some allegations in the said civil suit and similar allegations are levelled in the complaint and the same are required to be ignored.
7 I have gone through the affidavit-in-reply filed by the respondent No.2 accused as well as affidavit-in-rejoinder filed by the applicant. It appears that the only allegation levelled against the present respondent No.2 is with regard to some video clippings and photographs taken by the accused her husband. Since the matter is pending for hearing, I would not like to deal with the FSL report etc at this stage which would adversely affect all the parties concerned. Bare reading of the FIR, I am of the opinion that, the case may be tried by any Judge since the things required to be proved by the complainant is only in the nature of documentary evidence, video photographs, etc. No details with regard to said video clips/photographs is required to be deposed by the complainant.
8 In case of State of State of Punjab vs. Gurmit Singh (supra), the Hon ble Apex Court had considered the case under Section 376 of the IPC and has observed that ordinarily the case should be tried as per the provisions of Section 327 of the Criminal Procedure Code and it has been observed in Paragraph-23 that when it is case of sexual assaults on the female and, if, the Lady Judge is available, the same should be tried by a Lady Judge.
9 In case of Fatima Riswana vs. State Represented by ACP (supra), the Hon ble Apex Court has, after considering the facts of the case again transferred the case to a Lady Judge Judge though there were some CDs to be viewed by a Judge. It was further observed that the Judge himself or herself can request for transfer the case. Considering the above aspects, the order passed by the learned Trial Judge for transferring the case under Section-376 of the Code from Lady Judge to a Male Judge was set aside and the case was transferred to a Lady Judge.
10 In both the cases, Hon ble Apex Court transferred the case to a Lady Judge in a peculiar facts and circumstances of the case.
11 In the present case, neither offence under Section 376 of the IPC nor serious assault has been made against the present applicant by respondent No.2-accused and therefore, the learned Sessions Judge has rightly rejected the said application filed by the applicant for transfer of Criminal Case 414 of 2010 to any Lady Judge at Patan. I do not find sufficient reasons given by the complainant to transfer the case from a Male Judge to a Female Judge nor I find any infirmity in the order passed by the learned Trial Judge.
12 In view of above, the present application lacks merit and deserves to be dismissed and is dismissed. Notice is discharged.
(A.J.DESAI, J.) pnnair Page 6 of 6