Madras High Court: In a habeas corpus petition, wherein a bench was constituted to monitor the implementation of provisions of the Protection of Children from Sexual Offences (‘POCSO’) Act and Juvenile Justice (Care and Protection) Act, 2015 on the judicial side., the division bench of N. Anand Venkatesh* and Sunder Mohan, JJ. has held that the termination of pregnancy can be made without the disclosure of the name of the minor. Further, it directed the Principal Chief Secretary to address this issue and to evolve a procedure strictly complying with X v. Health & Family Welfare Department, 2022 SCC OnLine SC 1321.
In the Order dated 07-07-2023, the division bench of N. Anand Venkatesh and Sunder Mohan, JJ. had directed the Director General of Police (‘DGP’) to identify cases involving consensual relationship from among the 1274 pending cases. Further, it discontinued the two-finger test and the archaic potency test.
The Court noted that accordingly, 111 cases have been identified from four Zones, nine Cities and two cases registered by the Railway Police. These are cases which are either at the stage of investigation or where the investigation has been completed and a final report has been filed and the same is yet to be taken to file by the jurisdictional Court concerned. It provided five volumes of materials pertaining to those 111 cases containing the FIR, gist of the case, 164 statement recorded, medical reports of the victim and the child in conflict and their age proof.
Concerning the direction to the DGP to get a report of cases starting from 01-01-2023 involving sexual offence and see if any medical report referring to the two-finger test, the Court said that the status report filed by the Additional DGP, states that data was collected from 36 units and it is yet to be collected from ten more units and all these data’s will be collated and a report will be filed before this Court.
For understanding this issue from a medical perspective, the Court requested Dr. A. Nagendra Kumar, Associate Professor, Institute of Forensic Medicine to give an explanation regarding two finger test, wherein he stated that the two-finger test is obsolete and there is a confusion in understanding the difference between two finger test and per-vaginal examination. He stated that in both these tests, fingers are inserted into the vagina. Insofar as the per-vaginal examination is concerned, it is done to examine the vagina and find out if the victim has sustained any injury. Further, the routine findings given to the effect that a victim is a virgin or not a virgin or that the hymen is intact or not intact, are all findings which are not at all required in a case involving sexual offence. He clarified that such expressions are used in the medical report only because of the insistence of the Investigation Officer. The Doctor stated that when an expression hymen is not intact is used, it only means that no injuries have been sustained in the hymen. The Doctor stated that instead of using such expressions, proper/appropriate expressions describing the injury can be made in the report, if such injuries are found.
After perusing the Circular issued by the National Health Mission-Tamil Nadu, dated 08-11-2022, the Court noted that that per-vaginum or colposcopy examination should not be done unless it is required for the detection of injuries or for medical treatment. Further, it said that when such a specific guideline is given, the Doctor who examines the victim should not conduct per-vaginal or colposcopy examination as a matter of routine.
The Court further noted that in many reports it is stated that “there are no signs suggestive of sexual intercourse” and said that these types of findings are completely irrelevant in a case of sexual assault on a girl/woman, and it should be completely avoided.
After taking note of State of Jharkhand v. Shailendra Kumar Rai, 2022 SCC OnLine SC 1494, the Court said that the two-finger test and the per-vaginum examination were equated in this case and therefore, both these tests are now completely barred by virtue of this judgment. Further, it said that if the Doctor needs to find out if there is any injury to the hymen, it can be done only with an instrument and while doing so, the Circular issued by the National Health Mission should be kept in mind which in clear terms states that such examination should not be done unless required for detection of injuries or for medical treatment.
Further, concerning the potency test, the Court after perusing the report said that archaic Potency Test is done on a routine basis in all cases involving sexual offence to determine the potency of a man, it involves masturbation test where the man is made to ejaculate to confirm whether he is sexually potent. The Court remarked that this procedure is boorish and may not be required to be undertaken in all cases involving sexual violence. The Court noted that Dr. A. Nagendra Kumar stated that a man must be considered to be potent, unless the contrary is proved, and the burden of proof must only be on the accused person to prove when he takes a stand that he is impotent. A potency test is not at all required in a case of sexual violence. When the semen was traced in the victim or in her under garments it is enough if the blood sample of the offender is taken, and the DNA is matched. Even in such a case, it is not necessary to draw the semen from the accused person.
Further, the court said that in case a person is impotent but have consumed aphrodisiac pill or other medication and thereby became capable of committing a penetrative sexual assault, the Doctor can in rare cases adopt invasive methods to find if the man had consumed any pill or other medications and committed penetrative sexual violence, where otherwise he is impotent.
The Court said that these observations must be kept in mind while preparing the Standard Operating Procedure.
Concerning the direction given to the DGP, Puducherry to give the particulars regarding 29 pending cases, the Court said that the particulars sought regarding the 29 pending cases shall be furnished before the next date of hearing, failing which, the DGP, Puducherry was directed to be present before this Court.
The Court further added one more issue that requires immediate consideration and follow up action. It said that in some cases, involving sexual offence, it leads to pregnancy and the termination of pregnancy every time becomes an issue.
After placing reliance on Health & Family Welfare Department (supra) the Court said that where a minor approaches a registered medical practitioner for medical termination of pregnancy arising out of a consensual sexual activity, it is not necessary to insist for the disclosure of the name of the minor in the report that is normally given under Section 19(1) of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’). There are instances where a minor and their guardian may not be interested in proceeding further with the case and entangle themselves in a legal process. In such instances, termination of pregnancy can be made without the disclosure of the name of the minor. A procedure must be evolved to strictly comply with the above judgment.
The Court suo motu added Chief Secretary, Government of Puducherry and the Director General of Police, Puducherry as respondents.
The matter will next be taken up on 25-09-2023.
[Kajendran v. Superintendent of Police, H.C.P. No. 2182 of 2022, Order dated 14-08-2023]
*Order Authored by: Justice N. Anand Venkatesh
Buy Protection of Children from Sexual Offences Act, 2012 HERE
