Examination of accused by medical practitioner at the request of police officer :
Section – 53. (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.
(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.
1[Explanation.—In this section and in sections 53A and 54,—
| (a) | “examination” shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case; | |
| (b) | “registered medical practitioner” means a medical practitioner who possesses any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register.] |
COMMENTS
LAW COMMISSION REPORTS
Need of the provision – This provision has been made for facilitating effective investigation and authorising an examination of the arrested person by a medical practitioner, if from the nature of the alleged offence or the circumstances under which it was alleged to have been committed, there is reasonable ground for believing that an examination of the person will afford evidence.
Law Commission’s conclusions – The Law Commission examined the question in detail from legal and constitutional points of view. Its conclusions may be summarised as follows :
| a. | Whether such examination is legally permissible – Any interference with the body of a person is, prima facie, unlawful, and must justify itself under express rule of law. Sections 4 and 5 of the Identification of Prisoners Act, 1920, make provision for certain matters like taking of measurements, etc., of non-convicted persons, photographing, finger impressions, etc.; but they do not extend to medical examination. The provision of the Prisoners Act is intended for the purpose of check-up of a prisoner for contagious diseases, etc., and not for investigation. Section 51 of the old Code also does not permit such examination without the consent of the accused-See Bhondar v. Emperor AIR 1931 Cal. 601, Hanuman Sarma v. Emperor AIR 1932 Cal. 723 and Deoman Shamji Patil v. State AIR 1959 Bom. 284. | |
| b. | Whether a provision if made, would be constitutionally valid – Article 20(3) of the Constitution relates to the testimony, written or oral, of the accused person, and as has been observed by the Supreme Court in State of Bombay v. Kathi Kalu AIR 1961 SC 1808 does not bar the examination of the accused person, even if force is used for the purpose. Kathi Kalu’s case (supra) should be taken as overruling the view taken in Brij Bhushan v. State AIR 1957 MP 106 and Gunamudayan Packianathan v. Sirkar Prosecutor AIR 1950 TC 5 invalidating provisions similar to section 5 of the Identification of Prisoners Act, 1920. Hence, a provision permitting examination seems to have a fair chance of passing the scrutiny by courts under article 20(3) of the Constitution. | |
| c. | Whether such examination is desirable – Such a provision is needed, as examination of the body would reveal valuable evidence. The examination may take various shapes, e.g., |
| i. | examination of the body for ascertaining the accused person’s parts in a sexual offence, or for finding out the injuries received by him; | |
| ii. | examination for identification marks; and | |
| iii. | examination of internal parts, taking of fluids (e.g. in intoxication cases) and so on. |
GENERAL
Position in England and U.S.A. – The position in U.K. and U.S.A. may also be referred to, so that the significance of section 53 is better appreciated.
In England, “without the consent of a prisoner, a Judge or a Magistrate has no power to order an examination of his person, and if in pursuance of such an order, an examination is made, the person who made the order and the person who makes the examination are guilty of an assault”- Halsbury Law of England, 3rd edn., Vol. 10, page 742, para 1425.
In U.S.A., “influenced by the historical development of the doctrine ‘non-testimonial evidence’ its purpose, and the need to balance the conflicting interests of the individual and society, the courts have generally restricted the protection of the Fifth Amendment to situations where the defendant would be required to convey ideas, or where the physical acts would offend the decencies of the civilised conduct.”
Incidentally it may also be mentioned that the provision in section 53 is based on the second part of section 259 of the Criminal Code of Queensland (Australia), as suitably adapted.