Karnataka HC Suggests Amendment In Section 184 BNSS Mandating Medical Examination Of Rape Victims Under Supervision Of Female Practitioners
The Karnataka High Court has suggested amendment in Section 184 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) to mandate medical examination of rape victims under the supervision of female medical practitioners.
The Court gave its suggestions in a criminal petition filed by an accused seeking grant of bail, against whom a case was registered for the offences punishable under Sections 307 and 376 of the Indian Penal Code (IPC).
A Single Bench of Justice M.G. Uma said, “I deem it appropriate to request both the learned Additional Solicitor General of India and the learned State Public Prosecutor to take note of the situation and to draw the attention of the concerned, atleast to suggest an amendment to Section 184 of BNSS and to educate and sensitize all the stakeholders viz., Police officials, Prosecutors, Doctors and other Medical Officials who respond to the victim in the system. There may be instances where even the judicial officers may act insensitively and they also may require sensitization periodically. Moreover, there must be constant over seeing the functioning of the sub-ordinates by the superior officers to make them accountable for any lapse in this regard.”
The Bench remarked that the system must have an in-built mechanism to support and strengthen the victim and her family members at the time of distress to enable them to question any invasion over the right to privacy and to seek immediate remedial measures and then only, the victim of such crime and her family members may repose confidence in the system and voluntarily come forward to report regarding such offences.
Advocate Abhishek N.N. appeared for the petitioner/accused while State Public Prosecutor (SPP) B.A. Belliyappa and HCGP K.P. Yashodha appeared for the respondent/State.
In this case, the petitioner was the sole accused seeking grant of bail. He was apprehended in November last year and since then, he was in judicial custody. The relative of the victim had lodged an FIR against unknown person and later, the victim’s statement under Section 161 of the Criminal Procedure Code (CrPC) was recorded. She stated that the petitioner being her neighbour came to her house asking for rod and when she opened the door, he barged into the house, threatened her with knife, assaulted her, and committed penetrative sexual assault. According to her, she tried to escape from his clutches but she was unsuccessful, however, she assaulted him with the cooker lid.
The victim was subjected to medical examination at a hospital to ascertain whether she was subjected to sexual assault. The Assistant Professor, Department of O.B.G. examined her and noted her physical condition. But strangely, neither the final opinion nor the provisional opinion was given. There was also no explanation as to why the opinion of the doctor was not given when such a serious allegation of committing sexual assault was made. As per the direction of the Court, the said Assistant Professor who issued the medical report, appeared before the Court and produced another report pertaining to the victim, which contained the provisional opinion. There was absolutely no explanation as to why there were two reports, one with provisional report and another one without it.
The High Court in view of the facts and circumstances of the case noted, “It is disturbing to note that a male Medical Officer has subjected the victim for examination with the history of sexual assault and the examination lasted for about 6 hours, without there being any explanation and without any opinion, even a provisional opinion. It is pertinent to note that as per the report, there were two witnesses i.e., Sowmya and junior Dr. Jahnavi while conducting the medical examination. Unfortunately, even the Medical Officer who conducted medical examination of the victim and was asked to appear before the Court, was not in a position to say as to what was the designation of Dr. Jahnavi, who was said to be present during examination and why she herself has not conducted medical examination of the victim.”
The Court observed that both Sections 53(2) and 164-A of CrPC are copied verbatim in BNSS without noticing the anomaly which is causing great injustice and embarrassment to the victim of sexual assault, who is more than 18 years of age.
“It is very disturbing that when such a right to privacy is recognized even to an accused who is a female, there cannot be any justification for not extending such privilege to the victim. An impression would be created in the mind of the general public that the system is more concerned about the right of the accused than the right of a victim”, it added.
Furthermore, the Court said that when the right of an accused is taken care of from the day when FIR is registered, till he is acquitted or till he comes out by serving the sentence, a victim is lost in the entire criminal justice system as her voice is not heard by anybody.
“When we cannot afford a congenial atmosphere to the victim of such crime to undergo investigation, including medical examination of her person by noticing her condition and recognizing her right to privacy, we have no right to speak about the right of the victim in the entire system. Unless we assert and safeguard the rights of the victim at least on par with the accused, we have no right to showcase that we are dispensing justice in a victim centric criminal justice system”, it also observed.
Coming back to the facts of the case, the Court noted that the incidental observation of the medical report produced as part of the charge sheet has disturbed the mind of the Court to enquire about the glaring lapses and also to refer to the provisions of law, both under the repealed CrPC and in the new BNSS.
“Unfortunately, the victim in the present case was subjected to medical examination in three different hospitals, out of which, two are very prestigious Government hospitals in Bengaluru. If the condition of the victim in the metropolitan city, that too, in the very big Government Hospitals like Victoria and Vanivilas Hospitals is so pathetic, we can imagine the plight of the unfortunate victims who are subjected to medical examination in any other hospitals. No reasonable explanation is forthcoming for parading the victim of such crime in three different Hospitals, which would add insult to the injured. It is high time for both the Central and the State Government to take note of these situations and to address the same by concrete measures”, it elucidated.
The Court enunciated that even in the absence of specific provisions for recording of the statement of the victim by a lady Magistrate or for issuance of notice to the victim before considering the bail application under POCSO Act, the Courts have made it mandatory to get the victim's statement recorded by a lady Magistrate and for issuance of notice to her while considering the bail application for the offences under POCSO Act, that means, the Courts wanted the procedure to be victim friendly.
“Therefore, till suitable amendment is brought to Section 184 of BNSS, the Investigating Officers shall get the victim of a rape necessarily examined by or under the supervision of a female registered medical practitioner. Necessary directions in this regard may have to be issued by the Department/s concerned”, it added.
The Court, therefore, issued the following directions to Additional Solicitor General of India and the State Public Prosecutor –
(a) take note of the concern expressed by the Court and to draw the attention of the concerned to suggest suitable amendment to Section 184 of BNSS and have meaningful sensitization programs for all the stakeholders who respond to the victim in the System;
(b) see that till a suitable amendment is brought to Section 184 of BNSS, the medical examination of the victim of rape is to be conducted only by, or under the supervision of a female registered medical practitioner;
(c) see that the Hospitals or the medical practitioners have to provide computer generated or at least legibly written wound certificate/s or medical report/s and;
(d) report about the steps that are taken in this regard, at least within three months.
Accordingly, the High Court dismissed the criminal petition, issued necessary directions, and denied bail to the accused.
Cause Title- Ajay Kumar Behera v. State of Karnataka (Neutral Citation: 2024:KHC:27306)
