Case: Fatima Riswana Vs. State Rep. By A.C.P., Chennai

3. The appellant is a prosecution witness in SC No.9 of 2004 wherein respondent 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 Governments for the protection of women.n 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 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:"

Reasoning: 10. 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 trial 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 to the trial. In this background, we are unable to accept the correctness of the presumption drawn by the High Court.12. 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 presence of male persons. This is a matter of procedure to be adopted by the Presiding Officer.13. 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 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.14. 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