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MADRAS HIGH COURT
Arunachalam. J.
Thaniel Victor - Petitioner
versus
State - Respondent
Crl. Misc. Petition No. 1711 of 1999
Decided on 15-3-1990
Counsel for the parties:
For the Petitioner: Mr. S. Shanmughavelayutham.
For the Respondent: Mr. G. Krishnamurthy, A.P.P.
(ii) Criminal Procedure Code, 1973 Section 53, - Scope of the provision and its applicability to persons who have been either bailed out after arrest or who had been released on bail in the event of arrest - Prosecution for the offence of rape - The petitioner had been released on bail in the event of arrest - Request made by the prosecution to have the petitioner examined by a Medical Officer - Whether the Court can direct the petitioner to appear in Court for the purpose of medical examination u/s 53 of the Code? - (Yes, he can be stated to be a person arrested on a charge of committing offence, as contemplated u/s. 53 of the Code) Judicial decisions.
Held: The object of Sections 53 and 54 of the Code is not far to seek, since it may help the prosecution or the defence, but the ultimate aim is that justice must be done in a criminal case. Therefore, it is open to the Court which is seized of the matter to issue direction or to grant approval or permission to the police for carrying out further investigation in view of Section 53 of the Code. As long as the directions are made by Court, which agree with the procedure established by law, the Constitution cannot be an obstacle for efficient and effective investigation into the crime and of bringing criminals to justice which will be necessary for the benefit of the community. The Sacrosanct approach contemplated in Sections 53 and 54 of the Code, to my mind, appears to be necessary either for proving the guilt or the innocence of the concerned accused. The Bombay High Court also took the view that it will not be correct to say that only because the accused person had been released on bail he ceased to be in custody and, therefore, powers under Section 53 of the Code could not be exercised. The release on bail does not change the reality and from that fact alone, it cannot be said that he is not a person arrested for an offence. A
person released on bail is still considered to be detained in the constructive custody of the Court through his surety. He has to appear before the Court when ever required or directed. Therefore, to that extent, his liberty is subjected to restraint. He is notionally in the custody of the Court and hence continues to be a person arrested. Even in spite of the fact that the accused had been released on bail, he continues to be a person arrested on a charge of commission of an offence and, therefore, his medical examination can be carried out under Section 53 of the Code. (Para 25)
Result: Petition dismissed. Leave to appeal to the Supreme Court rejected.
ORDER
Arunachalam, J. – The Petitioner is the sole accused in Crime No. 519 of 1988 on the file of the Courtallam Police Station, Tirunelveli-Kattabomman District, registered for an offence under Section 376 I.P.C.
2. The prosecution case is that on 10-4-1988 at or about 8 p.m. when the first informant Prema went to the Petitioner's house to purchase beedi leaves, the latter raped her in his house, and while promising to marry her advised her not to disclose the alleged occurrence to anyone else. However, Prema is said to have disclosed this incident to her mother, two months later, leading to the launching of the F.I.R. on 30-12-1988 at or about 12.00 Noon, after eight months.
3. The Petitioner filed Crl. M.P. No. 191 of 1989 on the file of the Principal Sessions Judge, Tirunelveli, under Section 438 Cr. P.C., praying for release on bail in the event of arrest in respect of Crime No. 519 of 1988. The plea made by the Petitioner was acceded to and the Petitioner was directed to be released on bail in the event of his arrest. In pursuance of the said order, the Petitioner appeared before the Judicial Magistrate, Tenkasi, and executed his personal bond, apart from producing sureties, as directed by the Principal Sessions Judge, Tirunelveli.
4. The Crime is still under investigation. While so, on 13-6-1989, the Inspector of Police, Tenkasi, filed a petition before the Judicial Magistrate, Tenkasi, obviously under Section 53 Cr. P.C. to issue summons to the Petitioner to appear before a registered Medical Practitioner for being examined to ascertain if he was physically capable of having intercourse. This prayer was made by the Investigating Officer to facilitate effective investigation. On the same day, the Magistrate directed issue of summons to the petitioner. The Petitioner did not choose to appear before the Government Medical Officer but chose to file a counter opposing the plea made by the Investigating Officer, to direct the petitioner to appear for medical examination. The Petitioner did not also choose to appear before the learned Magistrate but on his behalf, arguments were advanced. The main contention urged on behalf of the Petitioner before the Magistrate was that the Court had no jurisdiction to direct medical examination of the Petitioner, since he had been released on bail in the event of arrest, by the Principal Sessions Judge and, if at all any direction could be given, it must be by the Court of Sessions. It was further pointed out before the Magistrate that his order, directing issue of summons to the Petitioner to appear for medical examination, was the subject matter of a pending revision before the Court of Session, Tirunelveli. However, it was submitted by the prosecuting counsel, that the examination of the petitioner was an important and necessary step in the course of investigation of the crime and in a case of rape, physical capability of the accused being in a position to commit the offence alleged, was an, important circumstances, which would have to be placed before the Court by the prosecution. At any rate, the Enquiring Magistrate, while holding that under Section 53 Cr. P.C. in the interests of justice, the petitioner could be sent for medical examination, concluded that he could not pass any order towards that end, since the summons issued by him had been challenged before the Principal Sessions Judge, Tirunelveli.
5. The challenge made by the Petitioner in Crl. R.C. No. 86/89 before the Principal Sessions Judge, Tirunelveli, against the order of the Judicial Magistrate, Tenkasi, ended against the Petitioner and the Revisional Court held that though the Petitioner could not be considered as a person arrested, the reasonable request made by the prosecution to have the Petitioner examined by a Medical Officer could not be rejected. Such medical examination was necessary to find out if the Petitioner was potent to have had sexual intercourse as al1eged. The Sessions Judge also held that it would no
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