Writ Petition No. 49254 of 2014 (GM-RES). Case: Shreemad Jagadguru Shankaracharya Vs State of Karnataka. High Court of Karnataka (India)
| Case Number | Writ Petition No. 49254 of 2014 (GM-RES) |
| Counsel | For Petitioner: K. G. Raghavan, Ashok Haranahalli, Sr. Adv., Manmohan, P. N., Advs. and For Respondents: Prof. Ra-vivarma Kumar, Adv. General, Krishna S. Dixit, Assistant Solicitor General, Advs. |
| Judges | A. N. Venugopala Gowda, J. |
| Issue | Criminal Procedure Code (2 of 1974) - Section 53A; Constitution of India - Articles 14, 21, 20(3) |
| Citation | 2015 CriLJ 1858 |
| Judgement Date | December 03, 2014 |
| Court | High Court of Karnataka (India) |
Judgment:
1. The constitutional validity of S.53-A of the Code of Criminal Procedure, 1973 (for short the 'Code'), is in issue, in this writ petition. That apart, there is challenge to a police notice dated 18.10.2014, as at Annexure-'S', whereby, the second respondent called upon the petitioner to appear at 9.00 a.m., on 21.10.2014, in empty stomach, for medical examination at Victoria Hospital, Bengaluru.
2. Section 53-A of the Code, which was inserted by Act No. 25 of 2005, with effect from 23.06.2006, reads as under:
"S.53A. 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 kilometers 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 reasons 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 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."
3. To appreciate the controversy raised in this petition, relevant facts are:
Miss Amushumathi Shastry, D/o. Diwakar Shastry lodged a complaint on 26.08.2014 before the Banashankari Police and a case in Crime No. 219/2014 was registered for the offences punishable under Ss.354-A and 506 of IPC. Banashankari Police transferred the said complaint and FIR No. 219/2014 to the Girinagar Police and a case was registered in Crime No. 164/2014. On 05.09.2014, the said case was transferred to the CID Special Cell. W.P.No.43825/2014 filed to quash the complaint dated 26.08.2014 and FIR dated 28.08.2014, registered in Crime No. 164/2014 by Girinagar Police (FIR in Crime No. 219/2014 registered by Banashankari Police) was dismissed on 09.10.2014. In Cri. Misc. No.5826/2014, Addl. City Civil and Sessions Judge, Bengaluru by an order dated 09.10.2014, granted interim bail under S.438(1)(iv) of the Code. On 12.10.2014, respondent No. 2, served a notice on the petitioner, to appear on 13.10.2014, in respect of Crime Nos. 164/2014 and 113/2014 for interrogation. The petitioner by submitting a representation dated 12.10.2014 sought time. In Cri.Misc.No. 5896/2014, Addl. City Civil and Sessions Judge, Bengaluru granted an interim bail on 13.10.2014. Thereafter, the petitioner appeared before respondent No. 2 with regard to the investigation in respect of the said crimes.
4. Notice vide Annexure- 'S' having been served on 20.10.2014, this writ petition was filed to declare S.53- A of the Code, as ultra vires the Constitution of India and quash Annexure-'S'. On 20.10.2014, Annexure - 'S' and all further proceedings in pursuance thereof was stayed until further orders. I.A.No.1/2014 filed on 27.10.2014, to implead respondent No. 3, was allowed on 19.11.2014 and the cause-title was amended.
5. Heard Mr. K. G. Raghavan and Mr. Ashok Haranahalli, learned Senior Advocates, for the petitioner and Prof. Ravivarma Kumar, learned Advocate General and Sri. Krishna S. Dixit, learned Assistant Solicitor General of India, for the respondents.
6. Mr. K. G. Raghavan, learned Senior Advocate, argued that S.53-A of the Code is violative of Articles 14, 20(3) and 21 of the Constitution. He submitted that the Section confers on a Police Officer and the registered medical practitioner, unguided, unfettered and unbridled power and thus, the provision is manifestly arbitrary. He submitted that the provision completely militates against the fundamental rights guaranteed under Clause (3) of Article 20 and Article 21 of the Constitution, more particularly, 'the right to privacy and dignity'. He contended that S.53-A should be construed strictly and Article 21 widely. He submitted that, as the impugned provision enables a Police Officer to use force against an arrested person in the matter of examination of such person, the same being arbitrary, is unconstitutional. He submitted that extraction of body fluids from an accused, by use of physical force, causes physical pain and mental agony, amounting to 'compulsive testimony' prohibited under Clause (3) of Article 20. He submitted that the petitioner being potent, which was made clear on 20.10.2014, when the interim order was passed in this petition, there is no need for the Investigating Officer, to subject the petitioner to medical examination under S.53-A of the Code. In support of the contentions, he relied upon the following decisions:
Sheo Nath v. Appellate Assistant Commissioner: AIR 1971 SC 2451.
C. Rajpal v. S. P. Chaliha, AIR 1971 SC 730.
Narayanappa v. I. T. Commissioner, AIR 1967 SC 523.
Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798: (AIR 2007 SC (Supp) 908).
Barium Chemicals Ltd. v. Company Law Board: AIR 1967 SC 295
A. K. Sen v. Union of India, (1980) ILR 2 Delhi 868.
Goutam Kundu v. State of West Bengal,(1993) 3 SCC 418: (AIR 1993 SC 2295).
Sharda v. Dharmpal, AIR 2003 SC 3450.
Amrit Singh v. State of Punjab, (2006) 12 SCC 79: (AIR 2007 SC 132).
Selvi v. State of Karnataka:, AIR 2010 SC 1974.
B. P. Jena v. Convenor Secretary, Orissa State Commission for Women, AIR 2010 SC 2851.
Venkatesha v. State of Karnataka, Cri. P. No.2105/13 D/- 30-05-2013.
K. M. Muniswamy Reddy v. State of Karnataka, ILR 1992 Kar 2543.
State of Karnataka v. Chikkabala Naika, ILR 2002 Kar 5151: (2002 AIR Kant HCR 2901).
Peoples Union for Civil Liberties and Anr. v. Union of India: AIR 2004 SC 456.
Narcotics Control Bureau v. Dilip Pralhad Namade: (2004) 3 SCC 619: (AIR 2004 SC 2950).
Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798: (AIR 2007 SC (Supp) 908).
S. Sundaram Pillai and others v. V. R. Pattabiraman and Ors. (1985) 1 SCC 591: AIR 1985 SC 582).
Babubhai v. State of Gujarat and others, (2010) 12 SCC 254: (2010 AIR SCW 5126).
Karan Singh v. State of Haryana and another, (2013) 12 SCC 529: (AIR 2013 SC 2348).
V. K. Sasikala v. State (2012) 9 SCC 771: (AIR 2013 SC 613).
Smt. Maneka Gandhi v. Union of India AIR 1978 SC 597.
Ritesh Sinha v. State of Uttar Pradesh AIR 2013 SC 1132.
D. K. Basu v. State of W.B. (1997) 1 SCC 416: (AIR 1997 SC 610).
7. Mr. Ashok Haranahalli, learned Senior Advocate, argued that S.53-A is inconsistent with the provisions of the Code. He referred to the Karnataka Police Manual and S.197 of the Code. According to him, the expression "examination of his person" appearing in Ss. 53, 53-A and 54 - cognate provisions, sanction only the external medical examination of body of an accused and do not authorise extraction of any fluids, without his consent and if the said provisions are not so interpreted, S.53-A fall foul of Articles 14, 20(3) and 21 of the Constitution and would run against the ratio of the decision in Selvi's case, (AIR 2010 SC 1974) (supra). He contended that investigation by respondent No. 2 must be fair and the rights of the accused, guaranteed under the Constitution and the statutory provisions, should be protected. According to the learned counsel, there is need for respondent No. 2, to disclose to the petitioner, the proposed test/s, as otherwise, the action would be wholly arbitrary. He submitted that S.53-A vests unreasonably excessive power in a Police Officer in deciding the choice of medical test, that too, without intimating the accused in advance, with regard to the nature of test/s, to which he would be subjected to. He contended that the provision being arbitrary, is unconstitutional.
8. Mr. Krishna S.Dixit, learned Assistant Solicitor General of India, stoutly defended S.53-A. He submitted that the provision was inserted, as per Act No. 25 of 2005, with effect from 23.06.2006, providing for medical examination of an accused in rape case and attempt for rape case, based on the recommendations of the 84th and 172nd report of the Law Commission of India. He submitted that in civilized legal systems the medical examination of an accused and use of reasonable force are sanctioned either by law or by judicial decisions. He referred to the 'Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment' adopted by the General Assembly Resolution No. A/RES/39/46 of 10th December, 1984 and 'United Nations Declaration on the Elimination of Violence against Women'. He contended that the Court cannot strike down a statutory provision for being arbitrary and unreasonable so as to substitute its own wisdom for that of the Legislature. He submitted that there being no challenge to the impugned provision on the ground of lack of legislative competence and the challenge being only on the ground that it is arbitrary and unguided, in view of the Constitutional limitations, the...
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