The request for medical examination of the accused has to be made by a police officer not below the rank of Sub-Inspector when he bona fide believes that such examination of the arrested person will afford evidence as to the commission of the offence. Such examination is a part of investigation as defined in Section 2 (4) subjecting an arrested person to medical examination under Section 53 is a proceeding and, therefore, forms part of an investigation.
Where there was dispute regarding paternity of child and the woman deposed that it was the petitioner who fathered the child, the order directing the petitioner to undergo blood test was proper.
The section does not debar other superior officers or the Court concerned from exercising the power under Section 53 to pass an order for the medical examination of the accused if deemed necessary in the interest of justice in the criminal case.
In Neeraj Shcirma v. Slate of U.P. the High Court of Allahabad has ruled that taking of hair sample comes within the ambit of medical examination of the accused and a Magistrate or a Court trying the case has powers to direct such examination or sample of hair, blood, nails etc. where there is reasonable ground to believe that such examination will afford evidence as to commission of an offence.
The Court further held that such an examination is not violative of the constitutional provision of Article 20 (3) and that a person cannot be said to have been compelled “to be a witness” against himself if he is required to undergo medical examination under Section 53 of the Code.
The medical examination contemplated by this section is not confined only to the examination of the skin or visible part of the body but also includes examination of some organs inside the body for the purpose of collecting evidence. It also includes x-ray examination or taking electro-cardiograph, serum, urine, sputum, blood etc. depending upon the nature of the case.
It may further be noted that the medical examination under Section 53 is in respect of a person on charge of committing an offence. Therefore, even if an accused person is released on bail he is still notionally in the custody of the Court through the surety and hence his medical examination can be validly carried on under this section of the Code.
The Supreme Court in Smt. Selvi and others v. State of Karnataka, observed that narco test does not fall within the scope of expression “such other tests” in Section 53, Explanation of Cr. P. C. The polygraph examination and BEAP (Brain Fingerprinting lest) are different from medical examination and the analysis of bodily substances such as blood, semen, stools, hair samples etc. since in these tests, the person’s physiological responses are directly correlated to mental faculties. Again, unlike the case of documents, the investigators cannot possibly have any prior knowledge of the subject’s thoughts and memories either in actual or constructive sense.
In any case, subjecting a person (accused or witness) to the compulsory administration of the impugned tests, namely, polygraph or BEAP impedes his right to choose between remaining silent and offering substantive information and the person is compelled to convey personal knowledge irrespective of his/her own volition.
In view of these facts, the Court opined that narco analysis technique, polygraph examination and BEAP test should not be read into the provisions for ‘medical examination’ under Section 53 of Cr. P. C.
It must, however, be stated that DNA profiling has been expressly included among the various forms of medical examination in the amended explanation to Sections 53, 53-A and 54 of Cr. P. C. DNA profile is different from a DNA sample which can be obtained from bodily substances.
A DNA profile is a record created on the basis of DNA samples made available by forensic experts. The matching of DNA samples is emerging as a vital tool for linking suspect’s specific criminal acts. Therefore, taking DNA samples which are in the nature of physical evidence does not violate Art. 20 (3) of the Constitution.
The Court finally ruled that person’s right to privacy is not absolute and could be reasonably curtailed but any forcible interference with a person’s mental processes is not provided for under any statute.
53-A. Examination of person accused of rape by medical practitioner:
(1) 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.
(2) 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:—
(i) The name and address of the accused and of the person by whom he was brought,
(ii) The age of the accused,
(iii) Marks of injury, if any, on the person of the accused,
(iv) The description of material taken from the person of the accused for DNA profiling, and
(v) Other material particulars in reasonable detail.
(3) The report shall state precisely the reason for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be noted in the report.
(5) The registered medical practitioner shall, without delay, forward the report to 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.