Supreme Court agrees to examine plea seeking removal of judge facing rape prosecution from POCSO court

The Supreme Court has agreed to examine a plea by a rape survivor seeking the removal of a judicial officer facing rape prosecution from presiding over a special court under the Protection of Children from Sexual Offences (POCSO) Act, while indicating that the Allahabad High Court could be asked to expedite the pending vigilance inquiry against him.

A bench, comprising Chief Justice of India Surya Kant and justices Joymalya Bagchi and V Mohana, issued notice on the petition challenging the high court's August 17 order that dismissed the survivor's plea to restrain additional district judge Ashok Bhartendu from discharging judicial duties as the presiding officer of the POCSO court in Shamli's Kairana.

The bench on Monday, however, observed that the decision as to whether Bhartendu should be divested of judicial work or not would ideally be for the high court to take. It also made clear that it did not intend to pass an order affecting the officer's rights in the absence of any material showing the status of the vigilance inquiry against him.

“We can ask the high court to take appropriate steps so that the inquiry is taken to its logical end. Meanwhile, you can proceed with the trial proceedings in accordance with law,” the bench told the survivor's counsel, Rakesh Kumar Singh, who pressed for the officer to be relieved of judicial responsibilities.

When Singh argued that Bhartendu should not be allowed to continue presiding over a sensitive POCSO court while facing a rape case, the bench acknowledged the concern but maintained that the it would need to grant an audience to the high court for such administrative decisions.

“We understand it is a sensitive posting. We will consider your arguments too,” said the bench, after counsel reiterated that the officer need not necessarily be suspended but should at least be absolved of judicial work.

“There was a vigilance inquiry but there is nothing placed on record with regard to the stage at which such an inquiry is pending. We can ask the high court to do the needful,” observed the bench, while fixing December 11 as the next date of hearing.

The petition challenges the high court's August 17 decision dismissing the survivor's writ petition seeking a writ of quo warranto against Bhartendu's continuance in office. A bench of justices Arindam Sinha and Satya Veer Singh had then observed that there was a presumption that the high court administration knew what it was doing, given that the judicial officer continued to discharge his duties.

The high court also noted that the survivor was unable to demonstrate any allegation on record concerning the discharge of his judicial duties. “So far as petitioner's complaint is concerned, the law will take its course,” said the high court, dismissing the petition.

However, the high court's order reproduced a communication issued by its central public information officer on February 6, in response to the survivor's RTI application, which disclosed that Bhartendu had been directed by the high court on October 21, 2024, to join the inquiry into the FIR registered against him in Delhi. The investigating officer was also directed to periodically inform the high court about the progress of the investigation.

The communication further said the high court's vigilance bureau was exempted from the purview of the Right to Information Act, thereby declining to disclose further details about the inquiry.

The FIR was registered on December 8, 2022, at Delhi's Mayur Vihar Phase-I police station under Section 376 of the Indian Penal Code, alleging rape on the false promise of marriage. Bhartendu challenged the FIR before the Delhi high court, which granted him interim protection from arrest in March 2023, observing prima facie that the case appeared to involve a breach of promise to marry rather than a false promise from the inception.

The Delhi high court, however, subsequently clarified there was no stay on the criminal proceedings and directed the trial court to proceed in accordance with law after the chargesheet was filed. A Delhi district court thereafter took cognisance of the offences against Bhartendu.

The survivor has contended that allowing a judicial officer facing prosecution for rape to continue presiding over a special court dealing with sexual offences, including those involving children, raises serious concerns warranting the high court administration's intervention.