Source: Karnataka High Court  

Why in News?  

A bench of Justice M.G. Uma held that the investigating officers shall get the victim of a rape necessarily examined by or under the supervision of a female registered medical practitioner.      

• The High Court of Karnataka held this in the case of Ajay Kumar Behera v. State of Karnataka.   

What is the Background of Ajay Kumar Behera v. State of Karnataka  Case? 

• The petitioner accused in this case is seeking grant of bail under Section 439 of Criminal Procedure Code, 1973 (CrPC). 
• The offences registered against the accused are those punishable under Section 307 and Section 376 of Indian Penal Code, 1860 (IPC). 
• The issue before the Court was whether the accused is entitled to bail under Section 439 of CrPC. 

What were the Court’s Observations? 

• Bail Denial 
  • The High Court refused to grant bail to the accused in this case. 
  • The Court noted that the petitioner had two simple injuries, corroborating the victim's statement about assaulting the petitioner during the incident. 
• Procedural Loophole Identified 
  • While refusing bail, the Court observed a loophole in the procedure for medical examination of rape victims. 
  • The Court noted that Section 53 of CrPC provides safeguards for female accused, requiring examination by or under supervision of a female medical practitioner. 
  • However, Section 164A of CrPC, which deals with medical examination of rape victims, lacks similar protections. 
• Legislative Oversight 
  • The Court observed that these provisions have been copied verbatim into the Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS) without addressing this anomaly. 
  • This oversight causes great injustice to sexual assault victims over 18 years of age. 
• Right to Privacy 
  • The Court emphasized that if the right to privacy is recognized for female accused, there is no excuse to deny this privilege to victims. 
• Court Directives  
  • The Court instructed the Additional Solicitor General and State Public Prosecutor to: 
    • Suggest suitable amendments to Section 184 of BNSS. 
    • Implement meaningful sensitization programs for all stakeholders. 
    • Ensure medical examinations of rape victims are conducted under female registered medical practitioner supervision until BNSS is amended. 
    • Ensure hospitals and medical practitioners provide computer-generated or legibly written wound certificates/medical reports. 
    • Report on steps taken within three months. 

What is Section 184 of Bharatiya Nagarik Suraksha Sanhita, 2023? 

• Section 184 of BNSS provides for medical examination of victim of rape. 
• This was contained in Section 164 A of CrPC. 
• Comparison between Section 164 A of CrPC and Section 184 of BNSS is as follows: 

• It is to be noted that both the provisions are same. The only difference is with respect to Section 184 (6) of BNSS. 
• Section 184 (6) provides that the investigating officer shall forward the report within seven days to the investigating officer who shall forward the same to the Magistrate. This time limit of seven days was earlier missing. 

What are the Loopholes in Section 184 of BNSS? 

• Current Legal Provisions 
  • Section 184 of BNSS does not specify that a female medical practitioner should examine or supervise the examination of a rape victim. 
  • Section 53 of CrPC (Code of Criminal Procedure) discusses the medical examination of accused persons at the request of police officers. 
• Safeguards for Female Accused 
  • Section 53(2) of CrPC provides protection for female accused:  
    • When a female person needs to be examined, only a female registered medical practitioner can conduct or supervise the examination. 
  • This safeguard is also present in Section 51 of BNSS. 
• Need for Amendment 
  • Section 184 of BNSS requires modification to include similar protection for female victims. 
  • This amendment would ensure that female victims are examined only by or under the supervision of female medical practitioners. 
• Potential Consequences 
  • Without this amendment, the criminal justice system may be perceived as unfriendly to victims. 
  • This oversight could lead to unexpected and negative consequences for female victims during medical examinations.