HC directs Punjab, Haryana, Chandigarh DGPs to issue orders for medical examination of rape accused

Saurabh Malik

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Chandigarh, August 8

In a significant judgment liable to change the way suspects are proceeded against in cases under the POCSO Act, the Punjab and Haryana High Court has told the Directors-Generals of Police (DGPs) of Punjab, Haryana and Chandigarh to issue necessary directions for the scrupulous compliance of law related to the examination of rape accused by medical practitioners.

Ensure fair trial for victims

Right to fair investigation and fair trial is not only restricted to the accused. It extends to the victim and society as well. Nowadays all attention is given to the accused to ensure fair play and fair investigation, resulting in a fair trial while little concern is shown to the victim and society.

Division Bench, Punjab and Haryana High Court

The Division Bench of Justice Raj Mohan Singh and Justice Harpreet Singh Brar also made it clear that the right to “fair investigation” and “fair trial” was restricted not only to the accused. It extended to the victim and society as well.

The Bench also ruled that directing the withdrawal of blood from the accused for DNA profiling would not amount to self-incrimination and was, as such, not violative of the right enshrined in Article 20(3) of the Constitution. The refusal to give blood sample for DNA profiling would, rather, entail adverse inference.

The Bench was hearing an appeal by a convict sentenced to life imprisonment in 2014 by Faridabad Additional Sessions Judge in a case registered for rape and other offences under various Sections of the IPC and the POCSO Act.

Speaking for the Bench, Justice Brar said the entire attention nowadays was given to the accused for ensuring fair play and fair investigation, resulting in a fair trial. But little concern was shown to the victim and society. “The onerous duty to maintain middle ground to secure the fair trial and fair investigation to the accused without sacrificing the interest of the victim and society is cast upon courts,” he asserted.

Calling for a proactive approach by the trial courts to ensure conformation to the rule of law by the investigating agencies for ensuring fairness in probe, he added that its duty in cases under the POCSO Act was not of a “third umpire detached from the ground” merely maintaining the score-sheet to announce the verdict.

The trial court had ample power to ensure that the investigating agency and the accused followed the drill of Section 53-A of the CrPC on examination of the accused by medical practitioners. “To ensure the compliance of Section 53-A is certainly an obligatory duty of the trial court conducting trial under the POCSO Act.”

He also ruled that presumption was often fastened on the accused in routine without determining the victim’s age. But it could be done only if the victim was found to be a child within the meaning of Section 2(1) (d) of the Act.

Justice Brar also directed the judgment’s forwarding to the DGPs for issuing necessary directions to investigating officers.