Unnecessarily Subjecting Child To Medical Exam Will Cause More Mental Stress: Madras HC Asks Hospitals To Examine Based On Complaint In POCSO Cases

A special bench of Justice N Anand Venkatesh and Justice Sunder Mohan, which has been monitoring the implementation of the POCSO Act, observed that though Section 27 of the POCSO Act provided for medical examination of a child against whom 'any' offence had been committed, when the Section was read with Section 164A of the CrPC, it had to be understood that the medical examination was with respect to cases in which there was a penetrative sexual assault.

The bench noted that for offences under Sections 3 and 5 of the POCSO Act, which dealt with Penetrative Sexual Assault and Aggravated Sexual Assault, respectively, a medical examination was necessary to substantiate the offence. However, the court noted that for offences under Sections 7 [sexual assault], Section 9 [aggravated sexual assault], and Section 11 [sexual harassment], there might not be an element of penetration. The court added that subjecting the child to medical examination, including taking of vaginal swabs, in such cases could put the child in more stress especially when no use was served by performing such medical examination.

“For those acts prescribed under Section 3 and Section 5 of the POCSO Act, there is an element of penetration which would require medical examination to substantiate the same. This is more so since the punishment provided under Sections 4 and 6 are more severe. However, when it comes to sexual assault as under Sections 7,9, and 11, those are cases in which the medical examination of the child is of no use. In fact, unnecessarily subjecting the child to examination will cause mental stress, “ the court said.

However, the court added that medical examination could not be done away with for all cases falling under Sections 7,9, and 11 of the Act. The court was conscious that there may be cases where though the offence was that of sexual assault, the child might have suffered injury that needed to be examined. Thus, the court asked the doctors examining the child to decide on the tests to be conducted based on the complaint of the child.

“The above direction is subject to one caveat. There are cases where the child may get injured, but the offence may be one falling under Section 7, 9 or 11 of the Act. In such cases, a medical examination of the child may be necessary to explain the nature of the injury. We make it clear that the doctors examining the victim child shall decide upon the tests to be conducted based on the complaint of the child,” the court added.

The court made the above directions after being informed that in many cases, the child was subjected to a detailed medical examination even when the offence involved did not require the same. The court was informed that in many situations, even when the offence was that of kissing or groping, the child was often subjected to medical examination, including vaginal tests, which was not necessary for the case. Shocked, the court also wondered what purpose would be served by conducting mechanical medical examinations.

Products Of Conception

During the hearing, the court was also informed that the products of conception are retained endlessly at the Forensic Science Laboratory even after DNA profiling has been done. The Director of FSL informed the court that in cases where the DNA profiling had been done and the data had been digitised, the extracted DNA and the data could be used for any retest, and it was not necessary to retain the products of conception.

Noting that no useful purpose will be served by retaining the products of conception, the court modified its earlier order and directed that once a product of conception was received and examined, it could be destroyed. The court ordered that if such facilities are available in the FSLs, it could be done there. Wherever facilities were not available, it could be handed over to the biomedical waste collection centre approved by the government.

The court noted that in many cases, after abortion, the product of conception was handed over to the government hospitals without any follow-up, leading to a pile up. The court was also informed that sufficient facilities were not available in these government hospitals to store the product of conception in proper temperatures, which may even become a biohazard. Thus, considering the grievance, the court directed the DGP to issue a circular to all police stations asking them to coordinate with the hospitals.

Case Title: Kajendran J v. The Superintendent of Police

Case No: HCP 2182 of 2022