Madras High Court: Pursuant to the administrative order of the Acting Chief Justice, a division bench was constituted to monitor the implementation of provisions of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) and Juvenile Justice (Care and Protection) Act, 2015 on the judicial side, the division bench of N. Anand Venkatesh* and Sunder Mohan, JJ. while following up on the previous orders, dealt with the issue pertaining to the guidelines to be followed for disposal of products of conception after the Medical Termination of Pregnancy (‘MTP’) is done for a pregnant minor girl. The Court directed that once the analysis is completed and a report is submitted by the FSL, the sample sent to the FSL can be retained by the FSL till the case’s completion. Thereafter, it should be destroyed as per procedure. Under no circumstances, the samples that are sent to the laboratory for analysis to be handed over to the investigation officer or to the Court.
In the earlier order dated 07-07-2023, the Court had directed the DGP to identify cases involving consensual relationship amongst pending POCSO cases and to discontinue the two-finger test and potency test. Further, in its order dated and 14-08-2023, the Court said that the termination of pregnancy can be made without disclosing minor’s name in report, in case of consensual relations.
The Court is dealing with the issue pertaining to the guidelines to be followed for disposal of products of conception after the Medical Termination of Pregnancy (‘MTP’) is done for a pregnant minor girl.
The Court said that the challenge regarding maintaining confidentiality becomes even more important by virtue of the coming into force of Bharatiya Nagarik Suraksha Sanhita (‘BNSS’), 2023, since some of the provisions in the Act insist for audio video recording. If these recordings are leaked, it will cause more damage to the victim girl, who has already undergone a trauma.
The Court noted that if the identity of the minor is not revealed to the police, it will become impossible for the police to proceed further with the investigation. However, the Court said that this does not mean that the identity and the personal details of the victim girl must be explicitly revealed in the report that is submitted to the authorities. In fact, it should not be revealed in the report. Therefore, the RMP, on the request made by the police, can orally reveal the identity of the victim girl to enable the police to proceed further with the investigation.
The Court suggested that a proper mechanism must be evolved on the side of the police to ensure that the identity of a minor victim girl and her personal details should never get revealed to the outside world. Even after such guidelines are given, there has to be some mechanism to make some higher authority own up, if the identity of the victim girl gets revealed to the outside world.
Thus, the Court made the Superintendent of Police of the District concerned responsible if the identity of the minor victim girl or the personal details are revealed to the outside world. This protection will ensure that the police officer who is conducting the investigation will be more diligent in carrying out the investigation without disclosing the identity and other personal details of the minor victim child
Concerning the guidelines for handling the products of conception, the Court noted that the foetus of 24 weeks is completely handed over to the Forensic Science Lab (‘FSL’) and in so far as the foetus beyond 24 weeks, femur alone is handed over to the FSL and the rest of the products of conception is destroyed as per procedure.
The Court said that the products of conception that are retained by the Hospital after sending the femur to the FSL, in cases involving foetus beyond 24 weeks, the same has to be destroyed as per the procedure. The Court also noted that the list of Bio-Medical Waste vendors has already been approved by the Pollution Control Board and said that the procedure should be followed consistently across the State of Tamil Nadu.
Concerning the foetus which is less than 24 weeks, the Court noted that the entire foetus is sent / forwarded to the FSL. After FSL’s analysis, no standard operating procedure is available and there is no idea as to where the product of conception reaches.
The Court said it cannot be preserved endlessly in the laboratory and there is no facility to preserve it in the Hospitals, Police Stations or in the Courts. Therefore, there will be no meaning in keeping the products of conception endlessly. Probably that is the reason why it is being passed on from one authority to another and in some cases, it even reaches the victim girl and her family.
Thus, the Court directed that once the analysis is completed and a report is submitted by the FSL, the sample sent to the FSL can be retained by the FSL till the case’s completion. Thereafter, it should be destroyed as per procedure. Under no circumstances, the samples that are sent to the laboratory for analysis shall be handed over to the investigation officer or to the Court.
The Court also directed that the minor pregnant girl who is produced before the Child Welfare Committee (‘CWC’) and her family must be informed by the CWC that the girl has the option of a MTP. It was also directed that once the minor girl and her family opts for MTP, the same should be carried out in accordance with the MTP Act, 1971 and Rules thereunder.
Following up on the earlier given directions concerning two finger test or per-vaginal examination, the Court noted that a standard operating procedure has now been issued pursuant to the earlier directions for examination of victims of sexual violence. The Court said that the guidelines will be strictly followed and any violation of the same must entile consequences of initiating appropriate proceedings as directed by the Supreme Court.
Regarding the male potency test, the Court said that the potency test that has been practiced for a long time without any valid reasons, must be stopped forthwith and the standard operating procedure that has been issued pursuant to the Court’s previous orders, must be strictly complied with.
The Court further directed the Social Welfare and Women Empowerment Department to circulate a form to all the CWCs across Tamil Nadu and the particulars contained therein to be filled up for the period from 01-01-2024 to 30-06-2024 to give a fair idea regarding the overall functioning of CWC in the State. The Court said that if there are any deficiencies / improvements to be made, necessary guidelines can be issued.
The matter will next be taken up 18-10-2024
[Kajendran v. Superintendent of Police, 2024 SCC OnLine Mad 3319, Order dated 15-07-2023]
*Order Authored by: Justice N. Anand Venkatesh
Buy Protection of Children from Sexual Offences Act, 2012 HERE
