Recently Kerala High court passed a judgement related to section 53A of Code of Criminal Procedure, which provides the potency test of the rape accused. The section further provides, when a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometres from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer, not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose. The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely-
1. the name and address of the accused and of the person by whom he was brought
2. the age of the accused,
3. marks of injury, if any, on the person of the accused,
4. The description of material taken from the person of the accused of DNA profiling, and”.
5. Other material particulars in reasonable detail.
The report shall state precisely the reasons for each conclusion arrived at. The exact time of commencement and completion of the examination shall also be noted in the report. The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub-Section (5) of that section.
The judgement passed by the Hon’ble High Court had totally criticizing view on the same, the Kerala High Court held, that the potency test of rape accused violates the fundamental rights i.e. right to privacy though not directly mentioned in the constitution, which is operated via Article 21 of the Constitution of India. But what about the victim, who face the actual harassment? It’s true that accused’s fundamental right is being violated but in order to safeguard justice, law and order has to take some steps which may violate the right to privacy, but may assure or find or with such proof the court might punish the real accused and the innocent may get acquitted. And so according to my view, the decision of Kerala High court is erroneous and must be corrected immediately.