DATE: 2nd May, 2013
JUDGES: Justice R.S Chauhan
PARTIES
- Richpal Kharra (PETITIONER)
- State (Respondent)
SUBJECT: In the present judgement, the case before the high court is concerned with section 53A of Cr.P.C which is related to the subject matter of medical examination of the accused when he is arrested on the charge of commission of rape. The question before the court was regarding the mandatory nature of the provision.
AN OVERVIEW
- In the present case, a complaint of rape was filed by the complainant, Sanju Devi against the petitioner under section 376 of IPC. Later on, she told the investigating officer and the court where the trial was taking place that she no longer wants to pursue the matter any further as no offence of rape has ever happened against her.
- It was the case of the respondent that even though the complaint filed a statement and a negative final report was also filed by the police, the magistrate returned the file back to the police. He further directed the police to procure the F.S.L report of the vaginal swab and underwear that was sent for medical examination.
- On the other hand, the petitioner in his petition argued that as per section 53A of Cr.P.C, once a person is arrested with the charge of committing rape, he should be subjected to medical examination and it is the duty of medical examiner to take material from the offender for medical examination.
- The petitioner put reliance on the case of Krishan Kumar Mallik v. State of Haryana (2011), and further contended that the Supreme Court in the said case held the provision of section 53A to be mandatory in nature. Thus, the petitioner shall be allowed to provide his material for DNA profiling in order to make it clear that the petitioner is innocent beyond reasonable doubt as the complainant has never been ravished by him.
IMPORTANT PROVISIONS
CRIMINAL PROCEDURE CODE
- Section 53A- Examination of person accused of rape medical practitioner:-
1. When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.
2. The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely;
i. the name and address of the accused and of the person by whom he was brought,
ii. the age of the accused,
iii. marks of injury, if any, on the person of the accused,
iv. the description of material taken from the person of the accused for DNA profiling, and,
v. other material particulars in reasonable detail.
3. The report shall state precisely the reasons for each conclusion arrived at.
4. The exact time of commencement and completion of the examination shall also be noted in the report.
5. The registered medical practitioner shall, without delay, forward the report of the investigating 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.
ISSUES: The sole issue before the court in the case was whether or not after the complainant admitting that no offence of rape has ever taken place, the DNA examination of accused u/s 53A is mandatory?
ANALYSIS OF THE JUDGEMENT
- While dealing with the issue, the first thing that the court noted was that the prayer of the petitioner was very limited. Taking this into account, the court decided not to deal with the facts in depth.
- Since, the respondent in their case did not challenge the legal proposition of the section 53A and did not put forward any other possible construction for the said provision; the court decided look into the case relied upon by the petitioner.
- The court held that as directed by the Supreme Court in Krishan Kumar Malik’s case, the provision of section 53A is mandatory in nature and thus directed the S.P. Jaipur to supervise the investigation. The court further directed the petitioner to submit his DNA sample that shall be given to the investigating officer who shall then send it foe examination. Therefore, the court allowed the petition.
CONCLUSION
- Very often we come across cases of false rape. Many a times it happens that accused may suffer punishment without even being at fault. However, section 53A Cr.P.C has come to rescue in such cases. It lays down the procedure of Medical examination of persons accused of rape. It expressly states that description of material of accused taken for DNA profiling. DNA is very reliable evidence in rape cases.
- The purpose of the section was to gather a solid evidence to prove the offence. However, in the present case, the complainant told the police and the court that she did not want to pursue the case any further. Merely stating that she does not want pursue the case does not mean that she can be done with her liabilities when the accused has not committed any offence.
- Therefore, the medical analysis of the accused even in this situation is mandatory to prove his innocence beyond reasonable doubt and have and honourable acquittal.
- The complainant should also face consequences for filing false report of commission of such heinous and grave offence against a person who is innocent. Therefore, section 53A indeed is a mandatory provision even in the present case to provide strong evidence in both cases where the offence has been committed or not. Therefore this judgement is indeed a remarkable one.
