Source: Supreme Court

Why in News?

Recently, the Supreme Court in the matter of XYZ. v. The State of Karnataka & Ors., has held that refusal on part of the accused in sexual offence case to undergo a medical examination would amount to non-cooperation with the investigation.

What was the Background of XYZ. v. The State of Karnataka & Ors. Case?

• In this case, the respondent no. 2 has been accused of sexual assault of a 9-year-old girl (victim).
• The respondent no. 2 refused to undergo medical examination for the purpose of Investigation.
• The Karnataka High Court passed an order which required respondent no. 2 to cooperate with the Investigating Officer for the purpose of investigation and, subject to the same, the respondent-Police were directed not to take any coercive action against him.
• Pursuant thereto, the Investigating Officer issued a notice under Section 41-A of the Criminal Procedure Code, 1973(CrPC), on 17^th May 2024, requiring respondent no. 2 to undergo a medical examination for the purpose of investigation in the case.
• He was directed to appear at the Police Station on 18^th May 2024.
• He filed an application before the High Court stating that the Investigating Officer was threatening him with arrest if he did not tender himself for medical examination at the same hospital where the victim was examined. Following that, the High Court stayed the notice which mandated the accused to undergo medical examination.
• Aggrieved by the final judgment and order passed by the Karnataka High Court, the petitioner (mother of the victim) filed a petition before the Supreme Court.
• The Counsel appearing for the petitioner before the submitted that the impugned order overlooked the medical report which indicated sexual intercourse and the victim's statement under Section 164 CrPC which implicated the accused.
• The Supreme Court directed the respondent no. 2 to appear before the Investigating Officer for being subjected to medical examination.

What were the Court’s Observations?

• The bench comprising Justices PV Sanjay Kumar and Augustine George Masih observed that in any event, his clear statement to the effect that he did not want to be subjected to medical examination shows that he is not willing to cooperate with the investigation.
• It was further stated that the respondent no.2 has to comply with Section41-A of CrPC notice and subject himself to medical examination as directed by the Investigating Officer. He cannot voice apprehensions about the medical facility that he is being referred to without any tenable basis.

What are the Relevant Legal Provisions in Relation to Medical Examination?

About:

• Medical examination of the accused and victims of sexual assault finds statutory recognition in the Indian legal system.
• The medical examination is done to know the true facts about the incident that happened. It provides a substantial piece of evidence to the police officers which helps them to expedite the process of investigation.

Medical Examination of the Accused:

Section 53 of CrPC:

• This Section deals with the examination of accused by medical practitioner at the request of police officer. It states that -

(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

Explanation. —In this section and in sections 53A and 54 —

(a) “Examination” shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.

(b) “Registered medical practitioner” means a medical practitioner who possesses any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register.

Section 53A of CrPC:

• This Section deals with the examination of person accused of rape by medical practitioner. It states that —

(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometres from the place where the offence has been committed, by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely: —

(i) The name and address of the accused and of the person by whom he was brought.

(ii) The age of the accused.

(iii) Marks of injury, if any, on the person of the accused.

(iv) The description of material taken from the person of the accused for DNA profiling.

(v) Other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the report to the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

Medical Examination of the Arrested Person:

Section 54 of CrPC:

• This Section deals with the examination of arrested person by medical officers. It states that—

(1) When any person is arrested, he shall be examined by a medical officer in the service of Central or State Government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made: Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner.

(2) The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted.

(3) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.

Medical Examination of the Victim of Rape:

Section 164A of CrPC:

• This Section deals with the medical examination of the victim of rape. It states that—

(1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence.

(2) The registered medical practitioner, to whom such woman is sent, shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely: —

(i) The name and address of the woman and of the person by whom she was brought.

(ii) The age of the woman.

(iii) The description of material taken from the person of the woman for DNA profiling.

(iv) Marks of injury, if any, on the person of the woman.

(v) General mental condition of the woman.

(vi) Other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the examination shall also be noted in the report.

(6) The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

(7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.

Treatment of Victims:

• Section 357C of CrPC deals with the treatment of victims.
• It states that all hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other person, shall immediately, provide the first-aid or medical treatment, free of cost, to the victims of any offence covered under section 326A, 376, 4 [376A, 376AB, 376B, 376C, 376D, 376DA, 376DB] or section 376E of the Indian Penal Code (45 of 1860), and shall immediately inform the police of such incident.

What is Section 41-A of CrPC?

• This Section deals with notice of appearance before police officer. It states that -

(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.