Source: Delhi High Court

Why in News?

The Delhi High Court has issued a series of directions to be followed by the authorities and doctors while dealing with survivors of sexual assault who are pregnant in the matter of Nabal Thakur v. The State.

Background

• The Court issued directions while dealing with the bail application under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) filed by a man accused of sexually assaulting a minor girl.
• In the present matter the accused man was residing near the house of the survivor.
• He called her to his house on a false pretext and told her that he would not let her go till she attained majority, the girl was 16 years old at the time.
• The survivor was brought back to her home two months later and her medical examination showed that she was pregnant.
• The duration of pregnancy was found to be four weeks and five days.
• She disclosed before the doctors that the man established forcible physical relations with her.
• The Court rejected the man’s bail plea noting that the girl was repeatedly raped by the accused and therefore, there were no grounds for granting bail.
• It was also noted by the Court that despite the fact that the girl was admitted to a hospital on several occasions, she suffered a complete abortion at home due to which the sample of the fetus could not be preserved.

Court’s Observations

• Several lacunae were found in the medical records of the hospital concerned, the most crucial one being that evidence (the fetus) could not be preserved in this case due to the negligence of doctors therefore Justice Swarana Kanta Sharma issued the directions to be followed by hospitals and other authorities.
• The Guidelines are as follows:
  • Circulation of Existing Guidelines and SOPs: The Department of Health and Family Welfare, Government of NCT of Delhi and Ministry of Health and Family Welfare to ensure that the existing guidelines/Standard Operating Procedure for conducting examination of the victims of sexual assault are circulated in all the hospitals in Delhi.
  • Regarding Additional Directions Issued vide this Judgment: The abovesaid Ministries are also directed to circulate the additional directions contained in the present judgment which be added to the existing SOPs.
  • Production of Victim Within 24 hours of Order Before the Hospital when Pregnancy is Less than 20 Weeks: The investigating officer concerned will produce the victim for the purpose of medical termination of pregnancy within 24 hours of passing of order of Competent Authority before the Superintendent of the concerned hospital.
  • Preservation of Fetus: It is directed that the doctor concerned will ensure that the fetus is preserved, and the victim is not discharged in a hurry, resulting in putting the life of the victim in danger and loss of evidence in a sexual assault case.
  • Recording of Reasons for Discharge without Termination of Pregnancy: The doctor concerned will also mention, in case the victim is discharged without termination of pregnancy, the reasons for the same so that the crucial evidence in the form of fetus is not lost.
  • Recording of Details of Treatment for Medical Termination of Pregnancy: It shall be duty of the doctor concerned also to mention in detail, the treatment given to the victim of sexual assault including any medicines given or procedure carried out for the purpose of termination of pregnancy.
  • Difficulty in Reading MLCs and Need to File Typed MLC in Sexual Assault Cases: The Court being aware of the fact that when the Medico Legal Case (MLC) is being prepared by the doctor, due to various constraints and reasons and privacy of victim etc., it has to be handwritten. Therefore, the court directed that in cases where medical examination of a victim of sexual assault is conducted, all the hospitals concerned will ensure that along with the original MLC as well as discharge summary of such victim, a typed copy of the same is also prepared by the concerned hospital and provided to the investigating officer within a period of one week.
  • Typed Copy of MLC may be Sent by Electronic Mode to the Investigating Officer (IO): The typed MLC can also be sent to the IO through electronic means to save time.

Legal Provision

Criminal Procedure Code, 1973

• Bail means procurement on release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority.
• The provisions of bail are provided under Chapter XXXIII of CrPC within Sections 436-450.

Section 439 - Special powers of High Court or Court of Session regarding bail —

(1) A High Court or Court of Session may direct, —

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified.

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.

(1A) The presence of the informant or any person authorized by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376 DB of the Indian Penal Code (45 of 1860).

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

Laws on Sexual Abuse of Children

POCSO Act

• The Act was enacted to address criminalizing a range of acts including child rape, sexual assault, sexual harassment, and pornography involving a child. And it came into force on 14th November 2012.
• Section 2(d) of POCSO Act defines a child as any person under the age of eighteen years.
• The law mandates setting up of Special Courts to facilitate speedy trials in Child Sexual Abuse cases.

Indian Penal Code, 1860

The 2018 amendment to the Code made following additions regarding sexual assault on children.