Come Up With SOP For Conducting Potency Test By Collecting Blood Sample, Mechanism Of Collecting Sperm Is A Method Of Past: Madras High Court

“The Potency Test that is done in cases involving sexual offence, carries a mechanism of collecting sperm from the offender and this is a method of the past. Science has improved metes and bounds and it is possible to conduct this test by just collecting the blood sample. Such advanced techniques are being followed across the world and we should also fall in line. Hence there will be a direction to the respondents to come up with a standard operating procedure for conducting Potency Test by merely collecting the blood sample,” the court observed.

The court also directed the Director General of Police to instruct the Inspector General of Police of various zones to go through medical reports in all cases involving sexual offences starting from January 2023 and see if any report refers to a two-finger test and to bring it to the court’s attention.

“We want to ensure that the Two-Finger Test and the Archaic Potency Test are discontinued. There shall be a direction to the Director General of Police to instruct the Inspector General of Police of various Zones to collect a data by going through the medical reports prepared in all cases starting from 01.01.2023, involving sexual offence and see if any report given makes reference to the Two-Finger Test. If any such report is identified, it shall be collected and shall be brought to the notice of this Court. On receipt of the same, we will pass further orders,” the court directed.

The court also went through a status report submitted by the DGP regarding details of cases pending before the Courts/Juvenile Justice Board from 2010 to 2013, pertaining to victims and children in conflict with law. It noted that out of a total of 1728 cases registered, 1274 cases are pending which could be divided into three heads- cases which are under investigation, cases where investigation has been completed but final report has not been taken on file and cases pending trial.

The court directed the DGP to identify cases involving consensual relationship from the pending cases with a brief note on the facts which shall enable the court to understand and take a decision accordingly.

The court said that in appropriate cases, it can also exercise jurisdiction and quash the proceedings if found to be against the interest of the children and if found to be an abuse of process of law. The court also noted that this exercise be carried out in Puducherry also.

“There will be a direction to the Director General of Police to identify cases involving consensual relationship from among the 1274 pending cases and a separate list shall be placed before this Court. While identifying those cases, a brief note on the facts of the case shall be prepared in order to enable this Court to understand and take a decision accordingly. The brief note shall also be accompanied with the 164 statement recorded from the victim,” the court observed.

Sensitization of Child Welfare Committee

During the hearing, the bench was also informed about a case wherein two minor kids had eloped and got married and subsequently the girl became pregnant. The court noted that the girl was kept in a home by the Block Development Officer even when her parents requested that she be sent to home with them. It further noted that an FIR was registered against the boy based on the complaint by the Block Development Officer and the Juvenile Justice Board had ordered him to be admitted to a Place of Safety (POS).

The court said that the boy had to spend 20 days in POS before being released. It observed that the instructions of the POCSO Committee and the circulars issued by the DGP were not percolated into the system. 

"We find that there is lack of sensitivity / empathy on the part of CWC and the Juvenile Justice Board, in some of the cases. A victim girl is mechanically detained in a home when it is not warranted and when such victim girl can be sent along with her parents. Similarly, the child in conflict with law is send to the Juvenile Home or the POS, as the case may be, mechanically and they are detained when it is not warranted and the child in conflict can be sent along with the parents by collecting a bond from the parents and imposing necessary conditions to ensure future appearance. The Social Welfare Officers and the Police seem to be acting as per the directions of CWC and Juvenile Justice Board without any independent say," it added.

Thus, the court said that sensitizations program must be conducted by the Legal Services Authority and the State Judicial Academy.

“Hence, the CWCs and the Juvenile Justice Boards must be sensitized. The sensitization programs must be conducted by the Legal Services Authority and the State Judicial Academy. Hence, the orders passed by this specially constituted Bench must be marked to the Member Secretary, Tamil Nadu State Legal Services Authority and the Director, Tamil Nadu State Judicial Academy,” the court noted.

Case Title: Kajendran v Superintendent of Police and others

Citation: 2023 LiveLaw (Mad) 193

Case No: HCP 2182 of 2022