Medical Practitioners Can Conduct Necessary Tests On Accused If There Are Indications Of Custodial Torture: Kerala High Court

The Kerala High Court on Monday clarified that the circular issued by the Director of Health will not preclude doctors conducting medical examinations of persons accused in criminals cases from ordering appropriate investigations as they deem fit if there are indications or complaints of custodial torture.

Justice PB Suresh Kumar decided so while hearing a petition filed by a government medical practitioner. Advocate R Gopan appeared on behalf of the petitioner.

Under Section 53 of CrPC, the petitioner is dutybound to subject an accused to a medical examination. However, the provision is silent regarding the exact tests that should be performed on the accused to detect internal injuries. Therefore, the convention was to note down the external injuries in the wound certificate which will be produced before the Court. 

Nevertheless, after the custodial death of Rajkumar in 2019, Justice Narayana Kurup being the Judicial Commission came up with certain recommendations to be followed by the police, doctors, and jail authorities on 5th January 2021. 

As per these recommendations, the doctors were to conduct specific tests to detect hidden injuries, citing that failure to report internal injuries was the main reason behind custodial torture and consequent deaths. The tests suggested were renal profile, creatine phosphokinase, urine myoglobin, c-reactive protein, ultrasound scanning of abdomen.  

Based on these recommendations, the Director of Health issued a Circular on 4th June 2021 mandating medical officers to conduct the aforementioned tests on every accused person. According to the petitioner, the recommendations were misunderstood by the Director of Health. She argued that the recommendation only suggested that these tests should be conducted if the doctors suspected an internal injury after the preliminary medical examination.  

Pursuant to the aforementioned circular, the Superintendent of the Kannur jail issued a similar circular dated 12th June, mandating that the accused shall only be admitted once they verify that the prescribed tests have been performed on him. 

However, soon after this second circular, the Director of Health issued another circular declaring that its first circular was kept in abeyance until further directions. 

After this, the petitioner was in dilemma as to whether this disallowed medical practitioners from conducting the necessary tests if they deemed necessary. This was the preliminary question in the petition. She filed several representations seeking to clarify the same, but they were not responded to. 

Accordingly, the petitioner prayed that a direction may be issued by the Court to the effect that the respondents declare that the latest circular is not a bar to conduct necessary medicals tests to the accused as deemed fit by the medical officer. 

The Single Bench granted an interim order to the effect that the latest circular 'will not preclude doctors conducting medical examinations of persons accused in criminals cases from ordering appropriate investigations as they deem fit if there are indications or complaints of custodial torture.'

Case Title: Dr. Prathibha K v. State of Kerala & Ors.

Click Here To Read Petition

Click Here To Read Order