A person released on bail in the event of arrest can be subjected to medical examination under S. 53 of the Code of Criminal Procedure, 1973.

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 S. 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 S. 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 S. 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 Session. 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 circumstance, which would have to be placed before the Court by the prosecution. At any rate, the Enquiring Magistrate, while holding that under S. 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 alleged. The Sessions Judge also held that it would not be fair on the part of the petitioner