Privacy | S.184 BNSS Should Be Amended To Mandate Medical Examination Of Adult Rape Victims By Female Practitioners Only: Karnataka HC

A single judge bench of Justice MG Uma directed the Central and State governments to ensure that till the amendment is brought, medical examination of rape victims is conducted only by or under the supervision of a female registered medical practitioner.

Further it has directed authorities to educate and sensitise all the stakeholders viz., Police officials, Prosecutors, Doctors and other Medical Officials who respond to the victim including judicial officers on this aspect.

The directions were given while rejecting the bail application filed by accused Ajay Kumar Bhera, who is charged for the offences punishable under Sections 307 and 376 of the Indian Penal Code.

The court rejected the plea on considering the medical records of the victim and accused who suffered injuries at the hand of the victim during the incident.

It said “According to the wound certificate, he (Bhera) had sustained two simple injuries which corroborates the statement of the victim that she had assaulted the petitioner during the incident. All these materials prima facie disclose that the petitioner is the author of the crime. I do not find any reason to suspect or to reject the version of the victim at this stage. Looking at the nature and seriousness of the offence, I am of the opinion that the petitioner is not entitled for grant of bail.”

During the hearing, the court examined the medical records of the victim and noticed that a male Medical Officer had subjected the victim to medical examination and it lasted for about 6 hours, without there being any explanation and without any opinion, even a provisional opinion.

Court observed medical examination of rape victims should always be victim friendly. "We should never forget that the victim will always have the right to privacy. The Police or the Medical Officers who deal with such victims as first responders should be very sensitive in handling them.”

Section 164-A CrPC provided that the victim of similar nature could be examined by any registered medical practitioner. This provision is now replaced with Section 184 BNSS. Court said Section 184 has been copied verbatim in BNSS, without noticing the anomaly "which is causing great injustice and embarrassment to the victim of sexual assault".

Court said it is very disturbing that when such a right to privacy is recognized even to an accused who is a female (Section 53 CrPC, now Section 51 BNSS), there cannot be any justification for not extending such privilege to the victim.”

The court thus urged “...both the learned Additional Solicitor General of India and the learned State Public Prosecutor to take note of the situation and to draw the attention of the concerned, atleast to suggest an amendment to Section 184 of BNSS and to educate and sensitise all the stakeholders viz., Police officials, Prosecutors, Doctors and other Medical Officials who respond to the victim in the system. There may be instances where even the judicial officers may act insensitively and they also may require sensitization periodically. Moreover, there must be constant over seeing the functioning of the subordinates by the superior officers to make them accountable for any lapse in this regard.”

The court also noticed that the report issued by the hospital was illegible. It said “The medical reports are not the personal documents of the author who writes it, but the same are referred to very frequently by the Investigating Officers, Prosecutors, Advocates representing the victims/accused and the Courts at various levels. Unfortunately, many a times, all of us are finding it difficult to read and understand such material documents and it will be left to our imagination about its contents.”

Thus it directed that the authorities instruct hospitals or the medical practitioners to provide computer generated or at least legibly written wound certificate/s or medical report/s.

Appearance: Advocate Abhishek N N for Petitioner.

SPP B.A. BELLIYAPPA a/w HCGP K.P. Yashodha for Respondent.

Citation No: 2024 LiveLaw (Kar) 338

Case Title: Ajay Kumar Behra AND State of Karnataka

Case No: CRIMINAL PETITION NO. 4074 OF 2024