18 Aug 2023 3:09 AM GMT
The Madras High Court has observed that when a minor seeks to terminate a pregnancy arising out of a consensual sexual relationship, the registered medical practitioner may not insist on disclosure of the name of the minor for preparing a report under Section 19 of the Protection of Children from Sexual Offences (POCSO) Act as sometimes the minor and their guardian may not be interested...
The Madras High Court has observed that when a minor seeks to terminate a pregnancy arising out of a consensual sexual relationship, the registered medical practitioner may not insist on disclosure of the name of the minor for preparing a report under Section 19 of the Protection of Children from Sexual Offences (POCSO) Act as sometimes the minor and their guardian may not be interested in proceeding further with the case.
“It is clear from the above that where a minor approaches a registered medical practitioner for medical termination of pregnancy arising out of a consensual sexual activity, it is not necessary to insist for the disclosure of the name of the minor in the report that is normally given under Section 19(1) of the POCSO Act. This procedure has to be followed, since there are instances where minor and their guardian may not be interested in proceeding further with the case and to entangle themselves with a legal process. In such instances, such termination of pregnancy can be made without the disclosure of the name of the minor,” the court said.
The bench of Justice Anand Venkatesh and Justice Sunder Mohan thus directed the Principal Chief Secretary (6th respondent in the case) to address the issue and evolve a procedure to strictly comply with the judgment of the Apex Court in Xvs. Principal Secretary, Health and Family Welfare Department wherein the Apex court had also ruled against the insistence of name.
The bench was constituted to monitor the implementation of provisions of the Protection of Children from Sexual Offences (POCSO) Act and the Juvenile Justice Act on the judicial side.
The court had previously asked the DGP to ascertain the number of pending cases before the Courts/Juvenile Justice Boards involving consensual relationships of minor children allowing it to deal with the cases and quash the proceedings, in appropriate cases, if found to be against the future and interest of the children or if found to be an abuse of the process of law.
When the case came up for hearing, the DGP informed that 111 cases were identified from m four Zones, nine Cities and two cases registered by the Railway Police. These are cases which are either at the stage of investigation or where the investigation has been completed and final report has been filed and the same is yet to be taken on file by the concerned jurisdictional Court.
The court appreciated the efforts undertaken to collect all the materials and said that the same would enable the court to quickly take a decision among the 111 cases and exercise its jurisdiction which will benefit the child involved and allow them to be relieved from the trauma of facing a criminal trial before the Court.
The court was also informed that the concerned Police officers will get in touch with the complainants/parents of the victim girl and get their consent which will further allow the court to pass orders for quashing the concerned proceedings.
The court had also previously directed the authorities to come up with a standard operating procedure for conducting potency tests and to get a report of cases from January 2023 where any reference to the two-finger test was made.
No 'two-finger' test
The court noted that as per the circular issued by the National Health Mission-Tamil Nadu in November 2022, the per-vaginum(two finger test) or colposcopy examination should not be done unless it is required for the detection of injuries or for medical treatment. The court thus stressed that when such a specific guideline was given, a Doctor who examined the victim should not conduct per-vaginal or colposcopy examination as a matter of routine.
“It is seen from the Circular issued by the National Health Mission-Tamil Nadu, dated 08.11.2022 that per-vaginum or colposcopy examination should not be done unless it is required for the detection of injuries or for medical treatment. When such a specific guideline is given, the Doctor who examines the victim should not conduct per-vaginal or colposcopy examination as a matter of routine. We also find in some of the reports expressions/findings like “there are no signs suggestive of sexual intercourse”. These type of findings are completely irrelevant in a case of sexual assault on a girl/woman and it should be completely avoided,” the court said.
Potency test not required as a routine
Similarly, seeking a medical opinion of Dr.A.Nagendra Kumar, Associate Professor, Institute of Forensic Medicine, the court noted that potency test was not required in all cases of sexual violence and when semen was traced in the victim, a blood sample was enough to match the DNA.
“It is quite evident from the statement made by the Doctor and also the written note submitted by the Doctor that potency test need not be undertaken in a routine manner in all cases involving sexual offence. The Court has to proceed with the presumption that the man is potent. If the accused person raises impotency as a defense, 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. We make it abundantly clear that potency test must not be confused with the general examination of the accused person that is carried out as a part of the normal procedure,” the court observed.
The court added that these observations could be taken into consideration while preparing the SoP with respect to the medical tests of victim girls.
Case Title: Kajendran v Superintendent of Police and others
Citation: 2023 LiveLaw (Mad) 231
Case No: HCP 2182 of 2022