Victims & Survivors Of Rape-POCSO Cases Or Other Sexual Attacks Should Not Be Refused Free Medical Treatment: Delhi HC Issues Comprehensive Directions

The Appeal before the High Court was filed under Section 415 read with 528 BNSS challenging the judgment and the accompanying order of sentence under Sections 363/376(2)(i) and (n) of IPC as well as Sections 6 and 12 of the POCSO Act. The Appellant, being the real father of the survivor, had allegedly committed penetrative sexual assault, repeatedly upon her.

The Division Bench comprising Justice Prathiba M. Singh and Justice Amit Sharma ordered, “Whenever any victim/survivor of any of the said offences approaches a medical facility, diagnostic facility, diagnostic lab, nursing home, hospital, health clinic etc., whether private and public/Government, such victim/survivor shall not be turned away without providing FREE medical treatment, including first aid, diagnostic tests, lab tests, surgery and any other required medical intervention.”

Advocate Sudarshan Rajan represented the Appellant while Standing Counsel for CBSE M.A. Niyazi, Secretary (Litigation), DSLSA Abhinav Pandey represented the Respondents.

The Additional Public Prosecutor informed the Court that the interim compensation awarded by the Trial Court had yet not been released to the survivor. The Court had directed that urgent steps be taken to trace the survivor and pay her the compensation.

In compliance with the earlier directions, the District Legal Services Authority filed a status report according to which an amount to the tune of Rs 4,12,500 had been awarded as interim compensation to the Survivor. The final compensation of Rs. 13,00,000 had been deposited in the account of the survivor and further steps were being taken towards enrolment of the survivor in the 12th standard.

Upon being queried, the Survivor submitted that she is happy to continue to work as a Para Legal Volunteer (PLV) to remain busy. The Ministry of Health and Family Welfare, Government of India, (MoHFW) released in 2014―Guidelines for Medico-Legal Care for Survivors/Victims of Sexual Violence according to which it is incumbent upon all hospitals, nursing homes, clinics, medical centres to provide free medical care and treatment to rape victims/survivors, POCSO case survivors and similar victims/ survivors of sexual attacks etc..

The Court was faced with a reality that despite the provisions under the BNSS or CrPC, as also the guidelines formulated by the MoHFW,the survivors of sexual violence and acid attacks face difficulties in availing free medical treatment.

The Bench held, “Thus, all Central Government/State Government aided and unaided hospitals as also private hospitals, clinics, nursing homes would be required to comply with the above provisions in order to ensure that survivors/rape victims and survivors in POCSO cases etc., are not refused medical treatment, or any other services which may be required. The word “treatment” would include first aid, diagnosis, in-patient admission, continued out-patient assistance, diagnostic tests, lab tests, surgery if required, physical and mental counselling, psychological help, family counselling, etc.”

The Bench passed the belowstated directions which would apply to the victims of the offences of Rape (Section 64 read with Section 71 of Bharatiya Nyaya Sanhita, 2023 (BNS); Section 376 read with Section 376E of IPC); Rape of woman under the age of sixteen or twelve years (Section 65 read with Section 71 of BNS; Section 376AB read with Section 376E of IPC); Rape resulting in persistent vegetative state (Section 66 read with Section 71 of BNS; Section 376A read with Section 376E of IPC); Sexual intercourse by husband upon his wife during separation (Section 67 read with Section 71 of BNS; Section 376B of IPC); Sexual intercourse by a person in authority (Section 68 read with Section 71 of BNS; Section 376C of IPC); Gang Rape (Section 70 read with Section 71 of BNS; Sections 376D, 376DA & 376DB read with Section 376E of IPC); Voluntarily causing grievous hurt by use of acid, etc. (Section 124(1) of BNS; Section 326A of IPC). h. Penetrative sexual assault (Section 4 of POCSO Act); Aggravated penetrative sexual assault (Section 6 of POCSO Act); Sexual assault (Section 8 of POCSO Act); Aggravated sexual assault (Section 10 of POCSO Act).

Listing the matter on December 23, 2024, the Bench enumerated a list of directions. A few of those are:

• Whenever any victim/survivor of any of the said offences approaches a medical facility, diagnostic facility, diagnostic lab, nursing home, hospital, health clinic etc., whether private and public/Government, such victim/survivor shall not be turned away without providing FREE medical treatment, including first aid, diagnostic tests, lab tests, surgery and any other required medical intervention;
• Such victim/survivor shall be immediately examined and if required, be given treatment even for sexually transmitted diseases such as HIV etc.;
• Such victim/survivor shall be provided physical and mental counselling as may be required;
• Such victim/survivor shall be checked for pregnancy, and provided with contraception, if required;
• Further, if any tests are required to be conducted including ultrasound, etc., the same shall also be conducted. Proper medical advice shall be given to such victim/survivor by the concerned gynaecologist who shall also counsel the victim/ survivor and her family members;
• If the victim/ survivor has been brought in an emergent situation, the concerned medical establishment that is approached by or on behalf of such victim/survivor, shall not insist on ID proofs to admit the said victim/survivor and administer immediate treatment to the same;
• If such a victim/survivor requires in-patient medical treatment, no payment shall be demanded and admission shall be provided to the said victim/survivor;
• Every medical facility shall put up a board saying Free out-patient and in-patient medical treatment is available for victims/ survivors of sexual assault, rape, gang rape, acid attacks, etc.
• All doctors, nurses, paramedical personnel, administrative staff of a medical establishment shall be sensitized about the relevant provisions being Section 397 BNSS (Section 357C of CrPC), Section 200 of BNS (Section 166B of IPC) and Rule 6(4) of POCSO Rules, 2020.
• Such victim/ survivor shall also be referred by the Police to the Delhi State Legal Services Authority (DSLSA) /District Legal Services Authority (DLSA) for providing legal assistance including appointment of a lawyer for the complaint to be filed in respect of the offence committed upon the said victim/survivor.

Cause Title: S.V. v. State (Neutral Citation: 2024:DHC:9821-DB)

Appearance:

Appellant: Advocates Sudarshan Rajan, Hitain Bajaj

Respondent: Standing Counsel for CBSE M.A. Niyazi, Advocates Anamika Ghai Niyazi, Kirti Bhardwaj, Nehmat Sethi, Arquam Ali, Secretary (Litigation), DSLSA Abhinav Pandey, SI Manoj Kumar, APP Ritesh Kumar Bahri, Advocate Lalit Luthra, Amicus Curiae Harpreet Kalsi, Advocate Vashisht Rao, Survivor and her mother in person.

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