Karnataka High Court: In the case where the constitutionality of Section 53-A CrPC that deals with examination of person accused of rape by medical petitioner came up for question, the Bench comprising of A.N. Venugopala Gowda, J held that the mere fact that the section may be misused by a Police Officer, is not a reflection of the vires of the section. The mere possibility of abuse of a provision which is otherwise intra vires is not sufficient to declare such provision unconstitutional. The question arose in the following circumstances: the petitioner in this case had been registered for offences under Sections 354-A and 506 of the Indian Penal Code; however, he had been released on interim bail. The petitioner had been subjected to such examination by medical practitioner.
The petitioner who was represented by Senior Advocates, K.G. Raghavan and Ashok Haranahalli, contended that, firstly, the Section conferred unfettered powers to a police officer, allowing such officer to use force against an arrested person. This was violative of Article 21 of the Constitution, particularly the right of privacy and dignity. Secondly, extraction of bodily fluids by physical force amounted to ‘compulsive testimony’ prohibited under Article 20(3) of the Constitution. Thirdly, the Section vests unreasonably excessive power in a Police Officer in deciding the choice of medical test, that too, without intimating the accused in-advance, with regard to the nature of test/s, to which he would be subjected to; hence, the provision being arbitrary, would run afoul of Article 14 of the Constitution.
The counsels for the State, Prof. Ravivarma Kumar, Advocate General and Mr. Krishna S. Dixit, Assistant Solicitor General of India, on the other hand argued on the grounds of the presumption of constitutionality, the doctrine of separation of powers, and that the provision was in accordance with international standards.
The Court, considering the contentions of both sides, up held the constitutionality of the said provision and said that that the police’s power to not inform the accused of the nature of the medical examination to be conducted was necessary, as it would alert the accused and might hamper the collection of evidence if the accused was aware of the same. Shreemad Jagadguru Shankaracharya v State of Karnataka, 2014 SCC OnLine Kar 5639, decided on the 03.12. 2014