Foetus Samples Must Be Destroyed After Completion Of Case; Shouldn't Be Given To Police Or Court: Madras HC

The Division Bench of Justice N. Anand Venkatesh and Justice Sunder Mohan directed, “In so far as the foetus which is less than 24 weeks, the entire foetus is sent/forwarded to the FSL. After analysis is done by the FSL, no standard operating procedure is available and there is no idea as to where the products of conception reaches. It cannot be preserved endlessly in the laboratory and there is no facility to preserve it either in the Hospitals or in the Police Stations or in the Courts. Therefore, there will be no meaning in keeping the products of conception endlessly…Once the analysis is completed and a report is submitted by the FSL, the sample that is sent to the FSL shall be retained by the FSL till the completion of the case. Thereafter, it shall be destroyed as per procedure…Under no circumstances, the samples that are sent to the laboratory for analysis shall be handed over to the investigation officer or to the Court, it shall be retained in the laboratory and it shall be destroyed after the completion of the case. A guideline in this regard must also be issued and followed across the state of Tamil Nadu.”

Advocate Deepika Murali appeared for the Petitioners whereas Advocate E.V. Chandru appeared as Amicus Curiae.

The Court, during the proceedings, primarily focused on the following issues: a)To identify the cases involving consensual relationships among minors and to see if those cases can be brought to their logical conclusion by considering each case independently; b)The two finger and per-vaginal examination and a Standard Operating Procedure to be formulated while conducting the medical test on the victim girl; c)The need for the continuing with potency test and the Standard Operating Procedure to be evolved in that regard; d)The follow-up action pursuant to the judgment of the Hon'ble Supreme Court in X Vs. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi and Anr. (2023 SC) and termination of pregnancy without disclosure of the name of the minor victim girl particularly in cases arising out of consensual sexual activity.

Concerning the issue of disclosure of the identity of a child victim, the Court directed, “Taking into consideration the judgment of the Hon'ble Supreme court and to ensure that the investigation conducted by the police goes on in a smooth manner after they receive the information provided by a RMP under Section 19 and at the same time, to ensure the identity and personal details of the victim child is protected, we deem it fit to make the Superintendent of Police of the concerned District responsible if the identity of the minor victim girl or the personal details are revealed to the outside world. In the same manner, the Deputy Commissioner in the Metropolitan Cities will be made responsible if any such disclosure of the identity and personal details of a victim girl gets revealed to the outside world. The concerned officers identified by us will be made responsible for any violation of the direction issued by the Hon'ble Supreme Court. This protection will ensure that the police officer who is conducting the investigation will be more diligent in carrying out the investigation without disclosing the identity and other personal details of the minor victim child.”

In so far as the guidelines for handling the products of conception like a foetus, the Court considered the analysis and report submitted by the Joint Director, Directorate of Family Welfare, DMS Campus, Chennai and Executive Director of Thulir. “…we understand that the foetus of 24 weeks is completely handed over to the FSL and in so far as the foetus beyond 24 weeks, femur alone is handed over to the FSL and the rest of the products of conception is destroyed as per procedure…In the light of the above statement made by the Joint Director, we make it clear that the products of conception that is retained by the Hospital after sending the femur to the FSL, in cases involving foetus beyond 24 weeks, the same has to be destroyed as per the procedure. It is brought to our notice that the list of Bio-Medical Waste vendors has already been approved by the Pollution Control Board and the said list was also placed before us. This procedure shall be followed consistently across the State of Tamil Nadu.”, the Court observed.

The Court also said that the minor pregnant girl who is produced before the Child Welfare Committee (‘CWC’) and her family must be informed by the CWC that the girl has the option of a MTP and once the minor girl and her family opt for MTP, the same shall be carried out by the MTP (Amendment) Act, 2021 and Rules thereunder. The Court directed the CWC to comply with this direction.

On the previous hearing, the Court had also issued directions as regards the two-finger test or per-vaginal examination. “Any person who conducts the “two finger test” or per Vaginal examination while examining a person alleged to have subjected to a sexual assault in contravention of the direction of Apex court order shall be guilty of misconduct… the Accident Register written by the Medical Officer should not include any details of two finger test of per Vaginum test examination as the same has been barred in virtue of Judgment of the Apex court.”, the Court had said.

The Court also issued guidelines related to the procedure to be followed for male potency tests. The Court observed that if the accused person raises impotency as a defence, the burden of proof will be upon the accused person to prove that he is impotent. Only in such instances, there is a requirement for conducting the potency test. Further, the doctor must in rare cases adopt invasive methods to find if the man had consumed any pill or other medication and committed penetrative sexual violence where otherwise he is impotent.

Accordingly, the Court listed the matter for a further date.

Cause Title: Kajendran J v. Superintendent Of Police and Ors.

Appearances:

Petitioners: Advocates Deepika Murali, Karthik Sundaram, Bhadri Naraynan, Shreya Narayanan and Pratiksha.

Respondents: Amicus Curiae E.V. Chandru and Public Prosecutor

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