Court's Order for medical by petitioner herself under Section 377 IPC

[Aastha Kaushik]

Hello sir,

I filed a case against my husband and some family members under 498a and 377 ipc but other family members were removed by police during police investigation itself. But Police is in strong favour of my husband and family as they are economically sound and bribing the police.

Now challan has been filed in the court and husband is accused under 377 ipc also. May I ask the court for permission to have my medical ? What is the section of law under which I can ask honourable judge to order for statement to conduct medical?

Police is totally in support of the accused and would favour him only and would not support me , so I want a court order to have my medical conducted so that I can have my medical done and produce the report in front of the honourable judge.

Please help sir.

[Dr. Ashok Dhamija]

Usually, in body offences (including an offence under Section 377 IPC which is mentioned by you), during investigation, the police itself gets medical examination of the victim of the offence conducted. This is for the purposes of getting sufficient medical evidence to support the charge for which the criminal case is registered. If the police has already filed the charge sheet in your case and has not conducted the medical examination, then you can request the Magistrate with a specific prayer to get yourself examined medically, and, generally speaking, the Magistrate will allow you to be medically examined.

There is no specific provision in Cr.P.C. for medical examination of the victim of the offence in a case where the offence is under Section 377 of IPC, though there is Section 164-A of the Cr.P.C, for medical examination of a victim of rape offences, which is reproduced below:

“164-A. Medical examination of the victim of rape.—(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; and

(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.

Explanation.—For the purposes of this section, “examination” and “registered medical practitioner” shall have the same meanings as in Section 53.”

It is pertinent to point out that there are three sections in Cr.P.C. for medical examination of a person accused of an offence, viz., Section 53, 53-A and 54 of Cr.P.C., which are reproduced below:

“53. Examination of accused by medical practitioner at the request of police officer.— (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 Sections 53-A 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 practioner 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.

53-A. Examination of person accused of rape by medical practitioner.—(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 kilometers 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, and

(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.

54. Examination of arrested person by medical officer.—(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.”

But, there does not appear to be a specific provision in Cr.P.C. for the medical examination of a victim of an offence, other than in the case of a rape victim (i.e., Section 164-A Cr.P.C.). This may be because medical examination of the victim is generally done during investigation on voluntary basis, i.e., normally it is in the interest of the victim himself or herself to get examined medically so that sufficient evidence to support the case be available during the investigation. However, absence of a legal provision should not come in the way of the medical examination of the victim where the victim herself is interested to get medically examined. So, you may make an application before the Magistrate for this purpose, if the medical examination has not been got conducted in your case so far by the police.

     

---

Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Author]

Posts