Supreme Court: Refusal Of Accused In Sexual Offence Case To Undergo Medical Examination Shows his Unwillingness To Cooperate With Investigation

The earlier order passed by the High Court on 24th April, 2024, required respondent No. 2 to cooperate with the Investigating Officer for the purpose of investigation and, subject to the same, the respondent-Police were directed not to take any coercive action against him. Pursuant thereto, the

Investigating Officer issued a notice under Section 41-A of

the Code of Criminal Procedure, 1973, on 17th May, 2024,

requiring respondent No. 2 to undergo a medical examination

for the purpose of investigation in the case. He was directed

to appear at the Police Station on 18th May, 2024 at 10.00 a.m.

{Para 5}

6. Respondent No. 2, thereupon, filed IA No. 2 of 2024 before the

High Court. Perusal thereof reflects that he did not wish to

subject himself to medical examination. He stated therein

that the Investigating Officer was threatening him with arrest

if he did not tender himself for medical examination at the

same hospital where the victim was examined.

7. As respondent No. 2 stood protected from coercive action by

the earlier order of the High Court, this statement on his

part does not inspire confidence. In any event, his clear

statement to the effect that he did not want to be subjected

to medical examination shows that he is not willing to

cooperate with the investigation.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 7880/2024

EKTA SINGH Vs THE STATE OF KARNATAKA 

 CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR

HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH

Date : 10-06-2024.

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D.K. Basu Vs. State of West Bengal -Guidelines of Supreme court on arrest of accused

 We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by atleast one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

37. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.

Above guidelines are incorporated in statute by criminal law amendment Act 2008.
Read said amendment here: Click here

IN THE SUPREME COURT OF INDIA

Writ Petition. (Crl) No. 539 of 1986.

Decided On: 18.12.1996

D.K. Basu Vs. State of West Bengal

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Whether time of death can be ascertained by presence or absence of food in stomach of deceased?

 Now, we shall deal with the other aspect of the argument advanced on behalf of the Appellants i.e. in relation to uncertainty in the time of occurrence as well as death of the deceased, with reference to expert evidence. The contention is that as per the statement of PW-8, they had 'Bhel' just before the incident. However, according to the medical evidence, there were no food particles in the stomach of the deceased. Therefore, the version of PW-8 is falsified by the evidence of PW-10, more particularly, wherein she has stated that she did not find any food particles in the intestine of the deceased. According to the learned Counsel for the Appellants, this causes a serious doubt on the very basis of the prosecution story. This argument appears to be of some significance at the first brush, but when examined in depth in light of the entire evidence, it clearly lacks merit.

9. The presence or absence of food at the time of post-mortem in relation to the time of death is based on various factors and circumstances such as the type and nature of the food consumed, the time of taking the meal, the age of the person concerned and power and capacity of the person to digest the food. In the present case, though PW-8 has stated that he had 'Bhel' with the deceased just before the incident, there is no evidence about the exact time when the meals were taken or the quantity of 'Bhel' consumed by the deceased. Judging the time of death from the contents of the stomach, may not always be the determinative test. It will require due corroboration from other evidence. If the prosecution is able to prove its case beyond reasonable doubt and cumulatively, the evidence of the prosecution, including the time of death, is proved beyond reasonable doubt and the same points towards the guilt of the accused, then it may not be appropriate for the court to wholly reject the case of the prosecution and to determine the time of death with reference to the stomach contents of the deceased. Even in Modi's Jurisprudence, it has been recorded as under:

... The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of the occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when the deceased had his last meal and what that meal consisted of.

Where there is positive direct evidence about the time of occurrence, it is not open to the court to speculate about the time of occurrence by the presence of faecal matter in the intestine. The question of time of death of the victim should not be decided only by taking into consideration the state of food in the stomach. That may be a factor which should be considered along with other evidence, but that fact alone cannot be decisive.

10. This Court in a catena of cases has stated the dictum that medical opinion is admissible in evidence like all other types of evidence and there is no hard-and-fast Rule with regard to appreciation of medical evidence. It is not to be treated as sacrosanct in its absolute terms. Agreeing with the view expressed in Modi's book on Medical Jurisprudence and Toxicology, this Court recorded that so far as the food contents are concerned, they remain for long hours in the stomach and the duration thereof depends upon various other factors.

11. Further, in Malay Kumar Ganguly v. Sukumar Mukherjee MANU/SC/1416/2009 : AIR 2010 SC 1162, it has been held by this Court that the opinion could be admitted or denied. Whether such evidence could be admitted or how much weight should be given thereto, lies within the domain of the court.

12. It is clear from the depositions of the prosecution witnesses, viz., PW-5 and PW-8 which corroborates with the deposition of PW-10 that the injuries were sustained by a sharp cutting object and not by hard and blunt object. Further, the plea raised by learned Counsel for the Appellants with regard to non-founding of food particles in the intestine of the deceased is of no basis as the digestion varies with different person even with same material, and sometimes even with the same person at different times. With incomplete digestion, no reliable opinion can be given on a medical basis. In fact, there is no positive evidence that the deceased had 'Bhel' along with others. If the period of digestion is six hours, the food will be in semi-digested stage upto 2 to 2½ hours and if someone takes food then it remains in stomach for half an hour and then it goes to the intestine. Even if it be taken that the deceased had 'Bhel' along with others and five minutes thereafter the incident started in which he succumbed to his injuries, the food will not be converted into semi-digested state and the doctor will not find any food particles in the intestine. The digestion of food is one of the important data which guide the medical officer in arriving at an opinion as to the time of death. This is possible on internal examination.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1962 of 2011 and 604 of 2012

Decided On: 03.08.2017

Sanjay Khanderao Wadane Vs. State of Maharashtra

Hon'ble Judges/Coram:

A.K. Sikri and R.K. Agrawal, JJ.

Citation:(2017) 11 SCC 842.

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Duty of government to sensitize people about importance of pre-marital counselling

One should remember that Institution of Marriage , is based on mutual faith and trust where both the bride and the groom are equal partners.  If pre-marital examination of the respondent had been done, the diseases would have been diagnosed and the marriage would have been certainly stopped.  If pre-marital examinations are done, many problems due to medical issues, failure of marriages due to fraud, non-disclosure of health problems etc., could be averted. Therefore, it is appropriate for the Central & State Governments to sensitize the people about the importance of pre-marital counselling atleast, if not premarital examination and the benefits of such counselling by medical experts by proper advertisements in media, short movies, conducting seminars in colleges etc. 
IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 05-08-2016

CORAM 

  MR. JUSTICE N.KIRUBAKARAN

Tr.C.M.P.No.435 of 2015 and

M.P.No.1 of 2015


 'A'
vs.


 'B'                                  


Prayer:- Petition filed under Section 24 C.P.C., to transfer F.C.O.P.No.1922 of 2015 pending on the file of the learned XXX Xxxxxxxxx Xxxxx Xxxxx Xxxxx Xxxxxxx to be tried along with H.M.O.P.No.158/2015 pending on the file of the Xxxxxx Xxxxx Xxxxxxxxxxxxxxxx for enquiry and disposal. 

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How to conduct medical examination of physically disabled person for their appointment in service?

 Upon careful perusal of the Government
Resolution dated 14th January, 2011, issued by the Social
Justice and Special Assistance Department, Government of
Maharashtra, and in particular clause No.5 thereof, it is
abundantly clear that, while conducting medical
examination of the candidates from handicapped category,
the medical examination should be conducted like in case
of candidates being selected from the general category. No
questions should be raised about handicapped certificate,
as per the relevant clause No.5 of the said Government
Resolution. The criteria laid down by the
Government while issuing such certificates if
followed and detailed aspects in this regard
are verified and if it is made available to the
appointing authority the said authority will

decide as to whether said person is entitled for
reservation meant for Physically Challenged
Category or not.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3972 OF 2015

Maheshkumar Balasaheb Naik, Vs  The State of Maharashtra

 CORAM: S.S.SHINDE & A.M.BADAR, JJ.
 Dated : 21.09.2015
Citation;2016 (3) ALLMR 149

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Whether doctor can refuse to examine Rape victim on the ground that she is not referred by police?

From the admission of medical officer on oath it is apparent

that victim was brought before doctor on 30-06-10 at 8.30

P.M but doctor had examined her on next day i.e. 01-07-

2010 meaning thereby victim was medically examined after

about 12 hours even after her production with police requisition

before doctor, which itself diminishes the possibility of the

presence of any positive sign of rape particularly when victim is

rustic, schedule-tribe illiterate old women.

10. The delay caused by medical officer in examination of victim

cannot be justified in any way particularly when the Hon'ble

Supreme Court in State of Karnataka Vs Manjana reported in

2000 (6) SCC 188 recognised that the rape victim's need for

medical examination constituted a “medico-legal emergency” and

it is the right of the victim of rape to approach medical services

first before legally registering a complaint in police station. Thus,

the doctor or hospital is now required to examine victim of rape

promptly even if she reports to hospital directly, and voluntarily

without a police requisition. Second; it was the right of the victim

of rape to approach medical services first before legally

registering a complaint in a police station. The hospital was

obliged to examine her right away; they could always

subsequently initiate a police complaint on the request of the

victim. As a result of this landmark judgment, the doctor or

hospital is now required to examine a victim of rape if she reports

to the hospital directly, and voluntarily, without a police 

requisition. The judgment recognises the three ways by which a

hospital may receive a victim of rape: voluntary reporting by the

victim; reporting on requisition by the police, and reporting on

requisition by the Court. Unfortunately this information has not

been disseminated to all doctors, and the majority of them still

insist on a police requisition before examining a rape victim.

11. An amendment in Cr.P.C by which Section 164 A has been

inserted by Code of criminal procedure (amendment) Act 2005

(w.e.f. 23-06-2006) to meet out the aforementioned situation with

an object that the medical examination of the rape victim should

be carried out as early as possible without any delay with consent

of victim preferably by a lady doctor.

12. Section 164 A Cr.P.C is binding on the doctors, which runs

inter-alia, Section 164 A Cr.P.C. 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 a 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 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;8

(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

(IV) 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 investigation 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.

JHARKHAND HIGH COURT

Cr. Appeal (DB) No. 412 of 2013

 Gujua Manjhi @ Gajju Hansada Vs. The State of Jharkhand

PRESENT

 MR.JUSTICE VIRENDER SINGH, CHIEF JUSTICE

 MR.JUSTICE P.P.BHATT

Citation; 2015 CRLJ 4303 Jharkhand

Dated 1st July, 2015

Per Virender Singh, C.J.

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Supreme Court: Copy of statement under section 164 Cr. P. C. of victim not to be given to accused until filing of chargesheet.

On considering the same, we have accepted the suggestion offered by the learned counsel who appeared before us and hence exercising powers under Article 142 of the Constitution, we are pleased to issue interim directions in the form of mandamus to all the police station in charge in the entire country to follow the direction of this Court which are as follows:

i. Upon receipt of information relating to the commission of offence of rape, the Investigating Officer shall make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement under Section 164 Cr.P.C. A copy of the statement under Section 164 Cr.P.C. should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under Section 164 Cr.P.C. should not be disclosed to any person till charge sheet/report under Section 173 Cr.P.C. is filed.

ii. The Investigating Officer shall as far as possible take the victim to the nearest Lady Metropolitan/preferably Lady Judicial Magistrate.

iii. The Investigating Officer shall record specifically the date and the time at which he learnt about the commission of the offence of rape and the date and time at which he took the victim to the Metropolitan/preferably Lady Judicial Magistrate as aforesaid.

iv. If there is any delay exceeding 24 hours in taking the victim to the Magistrate, the Investigating Officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate.

v. Medical Examination of the victim: Section 164 A Cr.P.C. inserted by Act 25 of 2005 in Cr.P.C. imposes an obligation on the part of Investigating Officer to get the victim of the rape immediately medically examined. A copy of the report of such medical examination should be immediately handed over to the Magistrate who records the statement of the victim under Section 164 Cr.P.C.
SUPREME COURT OF INDIA

State of Karnataka  Vs. Shivanna @ Tarkari Shivanna

[Special Leave Petition (CRL.) No. 5073/2011]

Dated; 25 April 2014

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Supreme court guidelines on arrest of accused

 We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measurers:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee insist be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by atleast one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/herbed, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and State Headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should bc displayed on conspicuous notice board.

37. Failure to comply with the requirements herein above mentioned shall apart form rendering the concerned official liable for departmental action also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the Country, having territorial jurisdiction over the matter.

38. The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to Which a reference has been made earlier,

39. These requirements are in addition 1, the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding the rights and dignity of arrestee.

SUPREME COURT OF INDIA

SHRI D.K. BASU v State of West Bengal

Citation:1996(9) SCALE CORAM : KULDIP SINGH AND A.S. ANAND, JJ.

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Whether accused released on bail can be directed to undergo medical examination?

Person released on bail is still considered to be detained in the constructive custody of the Court through his surety. He has to appear before the Court whenever required or directed. Therefore, to that extent, his liberty is objected to restraint. He is nationally in the custody of the Court and Hence continues to be a person arrested. Even in spite of the fact that the accused had been released on bail, he continues to be a person arrested on a charge of commission of an offence and, therefore, his medical examination can be carried out under S. 53 of the Code. Thus, a person who is released on bail in the event of arrest, also cannot challenge this concept in view of the observations of the Supreme Court in Balchand Jain v. State of M.P., AIR 1977 SC 366 : (1977 Cri LJ 225) and Gurbaksh Sigh v. State of Punjab, extracted earlier.

Madras High Court

Thaniel Victor vs State on 15 March, 1990

Equivalent citations: 1991 CriLJ 2416

Bench: T Arunachalam

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Whether medical examination of accused can be ordered after he is released on bail?

It is also not correct to say that in no case Magistrate can issue a direction, ordering the accused to submit to medical examination as contemplated by Section 53 of the Code. In this context it cannot be forgotten that a power is conferred upon the Magistrate to arrest a person who commits offence in his presence under Section 44 of the Code. Such an arrest could be for any offence. After arrest it is open to the Magistrate subject to the provisions as to bail contained in the Code, to commit the offender to custody. Can it be suggested that in such a case recourse could not be taken to the provision of Section 53 of the Code ? Suppose a person is granted an anticipatory bail, then can it be said that he cannot be directed to submit to medical examination under Section 53 of the Code as a condition of bail itself or otherwise. Under the Code of Criminal Procedure, if it is in the interest of justice the court has power to record additional evidence. The High Court is granted inherent powers under Section 482 of the Code to make such orders as may be necessary to secure the ends of justice. While dealing with a case where death sentence is awarded, under Section 367(1) of the Code if the High Court feels that further inquiry, including the medical examination of the accused is necessary for determining the guilt or innocence of the accused then can it be held that High Court has no such power or jurisdiction ? S. 53 of the Code only lays down a condition that medical examination will have to be done at the instance of a police officer not below the rank of sub-inspector. It does not debar other superior officers or the Court concerned from exercising said power if it is necessary for doing justice in a criminal case.

Bombay High Court

Anil Anantrao Lokhande vs The State Of Maharashtra on 20 February, 1980

Equivalent citations: 1981 CriLJ 125

Bench: Bhonsale, Dharmadhikari

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Leading judgment on investigation and conduct of trial in respect of child victim of sexual offence

 For the sake of convenience, the directions and
guidelines laid down by the Apex Court and this court so far as
case involving a child victim or child witness which are required
to be mandatorily and urgently implemented are culled out as
follows:-
I. POLICE
(i). On a complaint of a cognisable offence involving a child victim being made, concerned police officer shall record the complaint promptly and accurately.(Ref: Court On Its Own Motion vs. State & Anr.)
(ii). Upon receipt of a complaint or registration of FIR for any of the aforesaid offences, immediate steps shall be taken to associate a scientist from Forensic Science Laboratory or some other Laboratory or department in the investigations. The Investigating Officer shall conduct investigations on the points suggested by him also under his guidance and advice.(Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(iii). The investigation of the case shall be referred to an officer not below the rank of Sub- Inspector, preferably a lady officer, sensitized by imparting appropriate training to deal with child victims of sexual crime.(Ref: Court On Its Own Motion vs. State & Anr.)
(iv). The statement of the victim shall be recorded verbatim.(Ref: Court On Its Own Motion vs. State & Anr.)
(v). The officer recording the statement of the child victim should not be in police uniform.(Ref: Court On Its Own Motion vs. State & Anr.)
(vi). The statement of the child victim shall be recorded at the residence of the victim or at any other place where the victim can make a
statement freely without fear.(Ref: Court On Its Own Motion vs. State & Anr.)
(vii). The statement should be recorded
promptly without any loss of time.(Ref: Court On Its Own Motion vs. State & Anr.)
(viii). The parents of the child or any other person in whom the child reposes trust and confidence will be allowed to remain present.(Ref: Court On Its Own Motion vs. State & Anr.)
(ix). The Investigating Officer to ensure that at no point should the child victim come in contact with the accused.(Ref: Court On Its Own Motion vs. State & Anr.)
(x) The child victim shall not be kept in the police station overnight on any pretext, whatsoever, including medical examination.(Ref: Court On Its Own Motion vs. State & Anr.)
(xi). The Investigating Officer recording the statement of the child victim shall ensure that the victim is made comfortable before
proceeding to record the statement and that the statement carries accurate narration of the incident covering all relevant aspects of the case.(Ref: Court On Its Own Motion vs. State &
Anr.)
(xii). In the event the Investigating Officer should so feel the necessity, he may take the assistance of a psychiatrist.(Ref: Court On Its Own Motion vs. State & Anr.)
(xiii). The Investigating Officer shall ensure that the child victim is medically examined at the earliest preferably within twenty four hours (in accordance with Section 164A Cr.P.C) at the nearest government hospital or hospital
recognized by the government.(Ref: Court On Its Own Motion vs. State & Anr.)
(xiv). The Investigating Officer shall ensure that the investigating team visits the site of the crime at the earliest to secure and collect all incriminating evidence available.(Ref: Court On Its Own Motion vs. State & Anr.)
(xv). The Investigating Officer shall promptly refer for forensic examination clothings and articles necessary to be examined, to the forensic laboratory which shall deal with such cases on priority basis to make its report available at an early date.(Ref: Court On Its Own Motion vs. State & Anr.)
(xvi). The investigation of the cases involving sexually abused child may be investigated on a priority basis and completed preferably within ninety days of the registration of the case. The investigation shall be periodically supervised by senior officer/s.(Ref: Court On Its Own Motion vs. State & Anr.)
(xvii). The Investigating Officer shall ensure that the identity of the child victim is protected from publicity.(Ref: Court On Its Own Motion vs. State & Anr.)
(xviii). To ensure that the complainant or victim of crime does not remain in dark about the investigations regarding his complaint/FIR, the complainant or victim shall be kept informed about the progress of investigations. In case the complainant gives anything in writing and requests the I.O., for investigations on any
particular aspect of the matter, the same shall be adverted to by the I.O. Proper entries shall be made by I.O. in case diaries in regard to the steps taken on the basis of the request made by the complainant. The complainant, however, shall not be entitled to know the confidential matters, if any, the disclosure of which may jeopardize the investigations.(Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(xix). Whenever the SDM/Magistrate is requested to record a dying declaration, video recording also shall be done with a view to obviate subsequent objections to the genuineness of the dying declaration.(Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(xx). The investigations for the aforesaid offences shall be personally supervised by the ACP of the area. The concerned DCP shall also undertake fortnightly review thereof. (Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(xxi). The material prosecution witnesses cited in any of the aforesaid offences shall be ensured safety and protection by the SHO concerned, who shall personally attend to their complaints, if any. (Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(xxii). Wherever possible, the IO shall ensure that the statement of the child victim is also video recorded.(Ref: Court On Its Own Motion vs. State & Anr.)
II RECORDING OF STATEMENT BEFORE MAGISTRATE
(i). The statement of the child victim shall be recorded promptly and at the earliest by the concerned Magistrate and any adjournment shall be avoided and in case the same is unavoidable, reasons to be recorded in
writing.(Ref: Court On Its Own Motion vs. State & Anr.)
(ii). In the event of the child victim being in the hospital, the concerned Magistrate shall record the statement of the victim in the hospital.(Ref: Court On Its Own Motion vs. State & Anr.)
(iii). To create a child friendly environment separate rooms be provided within the Court precincts where the statement of the child victim can be recorded.(Ref: Court On Its Own Motion vs. State & Anr.)
(iv). The child victim shall not be separated from his/her parents/guardians nor taken out from his/her environment on the ground of
"Ascertaining voluntary nature of statement" unless the parents/guardian is reported to be abusive or the Magistrate thinks it appropriate in the interest of justice.(Ref: Court On Its Own Motion vs. State & Anr.)
(v). Wherever possible, the IO shall ensure that the statement of the child victim is also video recorded.(Ref: Court On Its Own Motion vs. State & Anr.)
(vi). No Court shall detain a child in an institution meant for adults.(Ref: Court On Its Own Motion vs. State & Anr.)
III MEDICAL EXAMINATION
(i) Orientation be given to the Doctors, who prepare MLCs or conduct post mortems to
ensure that the MLCs as well as post mortem reports are up to the mark and stand judicial scrutiny in Courts.(Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(ii). While conducting medical examination, child victim should be first made comfortable as it is difficult to make her understand as to why she is being subjected to a medical
examination.
(iii). In case of a girl child victim the medical examination shall be conducted preferably by a female doctor.(Ref: Court On Its Own Motion vs.
State & Anr.)
(iv). In so far as it may be practical, psychiatrist help be made available to the child victim before medical examination at the hospital itself.(Ref: Court On Its Own Motion vs. State & Anr.)
(v). The report should be prepared expeditiously and signed by the doctor
conducting the examination and a copy of medical report be provided to the parents/guardian of the child victim.(Ref: Court On Its Own Motion vs. State & Anr.)
(vi). In the event results of examination are likely to be delayed, the same should be clearly mentioned in the medical report.(Ref: Court On Its Own Motion vs. State & Anr.)
(vii). The parents/guardian/person in whom child have trust should be allowed to be present during the medical examination.(Ref: Court On Its Own Motion vs. State & Anr.)
(viii). Emergency medical treatment wherever necessary should be provided to the child victim.(Ref: Court On Its Own Motion vs. State & Anr.)
(ix). The child victim shall be afforded prophylactic medical treatment against STDs.(Ref: Court On Its Own Motion vs. State & Anr.)
(x). In the event the child victim is brought to a private/nursing home, the child shall be afforded immediate medical attention and the matter be reported to the nearest police station.(Ref: Court On Its Own Motion vs. State & Anr.)
IV COURT
(i) To create a child friendly environment separate rooms be provided within the Court precincts where the statement of the child
victim can be recorded.(Ref : Court On Its Own Motion vs. State & Anr)
(ii) In case of any disability of the victim or witness involving or impairing communication skills, assistance of an independent person who is in a position to relate to and communicate with such disability requires to be taken.
(iii) The trials into allegations of commission of rape must invariably be "in camera" . No request in this behalf is necessary. (Ref : State of Punjab vs. Gurmit Singh)(iv) The Committal Court shall commit such cases to the Court of Sessions preferably within fifteen days after the filing of the chargesheet. (Ref: (2007 (4) JCC 2680 Court On Its Own Motion vs. State & Anr.)
(v). The child witness should be permitted to testify from a place in the courtroom which is other than the one normally reserved for other witnesses.
(vi) To minimise the trauma of a child victim or witness the testimony may be recorded through video conferencing or by way of a close circuit television. If this is not possible, a screen or some arrangement be made so that the victims or the child witness do not have to undergo seeing the body or face of the accused. The screen which should be used for the
examination of the child witness or a victim should be effective and installed in such manner that the witness is visible to the trial judge to notice the demeanour of the witness. Single visibility mirrors may be utilised which while protecting the sensibilities of the child, shall ensure that the defendant's right to cross examination is not impaired. (Ref : Sakshi vs UOI).(vii) Competency of the child witness should be evaluated and order be recorded thereon.
(viii) The trial court is required to be also satisfied and ought to record its satisfaction
that the child witness understands the
obligation to speak the truth in the witness box. In addition to the above, the court is required to be satisfied about the mental capacity of the child at the time of the occurrence concerning which he or she is to testify as well as an ability to receive an accurate impression thereof. The court must be satisfied that the child witness has sufficient memory to retain an independent recollection of the occurrence and a capacity to express in words or otherwise his or her memory of the same. The court has to be
satisfied that the child witness has the capacity to understand simple questions which are put to it about the occurrence.
There can be no manner of doubt that
record of the evidence of the child witness must contain such satisfaction of the court.
(ix) As far as possible avoid disclosing the name of the prosecutrix in the court orders to save further embarrassment to the victim of the crime; anonymity of the victim of the crime must be maintained as far as possible
throughout.
(x) The statement of the child victim shall be recorded promptly and at the earliest by the concerned Magistrate and any adjournment shall be avoided and in case the same is unavoidable, reasons to be recorded in writing. (Ref : Court On Its Own Motion vs. State of N.C.T. Of Delhi)
(xi) The court should be satisfied that the victim is not scared and is able to reveal what has happened to her when she is subjected to examination during the recording of her
evidence. The court must ensure that the child is not concealing portions of the evidence for the reason that she has bashful or ashamed of what has happened to her.
(xii) It should be ensured that the victim who is appearing as a witness is at ease so as to improve upon the quality of her evidence and
enable her to shed hesitancy to depose frankly so that the truth is not camouflaged on account of embarrassment at detailing the occurrence and the shame being felt by the victim.
(xiii) Questions should be put to a victim or to the child witness which are not connected to case to make him/her comfortable and to
depose without any fear or pressure;
(xiv) The trial judge may permit, if deemed desirable to have a social worker or other friendly, independent or neutral adult in whom the child has confidence to accompany the child who is testifying (Ref Sudesh Jakhu vs. K.C.J. & Ors).
This may include an expert supportive of the victim or child witness in whom the witness is able to develop confidence should be
permitted to be present and accessible to the child at all times during his/her testimony. Care should be taken that such person does not influence the child's testimony.
(xv) Persons not necessary for proceedings including extra court staff be excluded from the courtroom during the hearing.
(xvi) Unless absolutely imperative, repeated appearance of the child witness should be prevented.
(xvii) It should be ensured that questions which are put in cross examination are not designed to embarrass or confuse victims of rape and sexual abuse (Ref : Sakshi vs UOI).(xviii) Questions to be put in cross examination on behalf of the accused, in so far as they relate directly to the offence, should be given in writing to the presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing. (Ref : Sakshi vs. UOI)(xix) The examination and cross examination of a child witness should be carefully monitored by the presiding judge to avoid any attempt to
harass or intimidate the child witness.
(xx) It is the duty of the court to arrive at the truth and subserve the ends of justice. The courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by the
witnesses. The judge has to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, the court can control the proceedings effectively so that the ultimate objective that is the truth is arrived at. The court must be conscious of serious pitfalls and dereliction of duty on the part of the prosecuting agency. Upon failure of the prosecuting agency showing indifference or adopting an attitude of aloofness, the judge must exercise the vast powers conferred under section 165 of the Evidence Act and section 311 of the CrPC to elicit all necessary materials by playing an active role in the evidence collecting process. (Ref : Zahira Habibulla H. Sheikh & Anr. vs. State of Gujarat & Ors.)(xxi) The judge is expected to actively
participate in the trial, elicit necessary materials from the witnesses at the appropriate context which he feels necessary for reaching the correct conclusion. The judge has uninhibited power to put questions to the witness either during chief examination or cross examination or even during re-examination for this purpose. If a judge feels that a witness has committed an error or slip, it is the duty of the judge to ascertain whether it was so, for , to err is human and the chances of erring may accelerate under stress of nervousness during cross examination. (Ref: AIR 1997 SC 1023 (para 12) State of Rajasthan vs. Ani alias Hanif & Ors.)
(xxii) The court should ensure that the
embarrassment and reservations of all those concerned with the proceedings which includes the prosecutrix, witnesses, counsels may result in camouflage of the ingredients of the offence. The judge has to be conscious of these factors and rise above any such reservations on
account of embarrassment to ensure that they do not cloud the truth and the real actions which are attributable to the accused persons.
(xxiii) The court should ascertain the spoken language of the witness as well as range of vocabulary before recording the deposition. In making the record of the evidence court should avoid use of innuendos or such
expressions which may be variably construed. For instance "gandi harkatein" or "batamezein" have no definite meaning. Therefore, even if it is necessary to record the words of the
prosecutrix, it is essential that what those words mean to her and what is intended to be
conveyed are sensitively brought out.
(xxiv) The court should ensure that there is no use of aggressive, sarcastic language or a gruelling or sexually explicit examination or cross examination of the victim or child witness. The court should come down with heavily to discourage efforts to promote specifics and/or illustration by any of the means offending acts which would traumatise the victim or child witness and effect their testimony. The court to ensure that no element of vulgarity is
introduced into the court room by any person or the record of the proceedings.
(xxv) In order to elicit complete evidence, a child witness may use gestures. The courts must carefully translate such explanation or description into written record.
(xxvi) The victim of child abuse or rape or a child witness, while giving testimony in court should be allowed sufficient breaks as and when required. (Ref : Sakshi vs. UOI)(xxvii) Cases of sexual assaults on females be placed before lady judges wherever
available. (Ref: State of Punjab vs. Gurmit Singh)
To the extent possible, efforts be
made that the staff in the courtroom concerned with such cases is also of the same gender.
(xxviii) The judge should be balanced,
humane and ensure protection of the dignity of the vulnerable victim. There should be no expression of gender bias in the proceedings. No humiliation of the witness should be
permitted either in the examination in chief or the cross examination.
(xxix) A case involving a child victim or child witness should be prioritised and
appropriate action taken to ensure a speedy trial to minimise the length of the time for which the child must endure the stress of involvement in a court proceeding. While considering any request for an adjournment, it is imperative that the court considers and give weight to any adverse impact which the delay or the
adjournment or continuance of the trial would have on the welfare of the child.
V GENERAL
(i) Effort should be made to ensure that there is continuity of persons who are handling all aspects of the case involving a child victim or witness including such proceedings which may be out of criminal justice system. This may involve all steps commencing from the
investigation to the prosecutor to whom the case is assigned as well as the judge who is to conduct the trial.
(ii) The police and the judge must ascertain the language with which the child is conversant and make every effort to put questions in such language. If the language is not known to the court, efforts to join an independent translator in the proceedings, especially at the stage of deposition, should be made.
(iii) It must be ensured that the number of times that a child victim or witness is required to recount the occurrence is minimised to the absolutely essential. For this purpose, right at the inception, a multidisciplinary team involving the investigating officer and the police; social services resource personnel as well as the prosecutor should be created and utilised in the investigation and prosecution of such cases involving a child either as a victim or a witness.
This would create and inspire a feeling of confidence and trust in the child.
(iv) The child victim shall not be separated from his/her parents/guardians nor taken out from his/her environment on the ground of "Ascertaining voluntary nature of statement" unless the parents/guardian is reported to be abusive or the Magistrate thinks it appropriate in the interest of justice.(Ref : Court On Its Own Motion vs. State of N.C.T. Of Delhi)
(v) Courts in foreign countries have evolved several tools including anatomically correct illustrations and figures (as dolls). No instance of such assistance has been pointed out in this court. Extensive literature with regard to such aids being used by foreign courts is available. Subject to assistance from experts, it requires to be scrutinised whether such tools can be utilised in this country during the recording of the testimony of a child victim witness so as to accommodate the difficulty and diffidence faced. This aspect deserves serious attention of all concerned as the same may be a valuable tool in the proceedings to ensure that the complete truth is brought out.
(vi) No court shall detain a child in an institution meant for adults.(Ref : Court On Its Own Motion vs. State of N.C.T. Of Delhi). This would apply to investigating agencies as well.
(vii) The judge should ensure that there is no media reporting of the camera proceedings. In any case, sensationalisation of such cases should not be permitted.
84. The issue with regard to teaching of offences regarding
sexual assault and rape itself has been a source of much
discussion. I am informed that there are instances of even legal
educators being bashful and embarrassed about teaching such
subjects. Judges and counsels are products of the legal
education. The multi-faceted problem and concerns noticed
above are not confined to ensuring gender justice in courts alone.
In this background, it is absolutely imperative that these areas of
law and the issues which have been raised herein are taken up
with all seriousness. Perhaps the programme of continuing legal
education needs to take a look on these questions.

Delhi High Court

Virender vs The State Of Nct Of Delhi on 18 September, 2009

Author: Gita Mittal.

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