Medical examinations conducted in the presence of relatives negate alleged sexual intent under IPC and POCSO Act.

1. The petitioner is the accused in S.C.No.735/2023 on the files of the Fast Track Special Court (POCSO Act), Kozhikode. The offences alleged against him are under S.354A(1)(i) of the Indian Penal Code, 1860 (in short, ' IPC '), and S.9(e), S.9(l) read with S.10 of the Protection of Children from Sexual Offences Act, 2012 , (in short, 'POCSO Act'). The allegation is that the petitioner, a pediatrician aged 80 years, committed the offence of aggravated sexual assault upon a girl studying in 10th standard. It is alleged that on 11/04/2023 and 17/04/2023, when the victim girl came to the dispensary of the petitioner for treatment of abdominal pain and chest pain, he put his hands inside her garments and resorted to sexual assault by pressing her breasts and also in naval portion. The offence is said to have been committed in the examination room of the petitioner. On 11/04/2023, the mother of the victim was said to be sitting by the side of the victim when the petitioner allegedly resorted to the aforesaid sexual assault. So also, on 17/04/2023, when the petitioner allegedly resorted to the sexual assault, the elder sister of the victim was said to be sitting by the side of her in that examination room. The case was registered by the Kozhikode Kasaba Police on 17/04/2023 on the basis of the statement given by the victim. After the completion of the investigation, the Sub Inspector of Police, Kasaba Police Station, Kozhikode, filed the final report before the Additional District and Sessions Court (For The Trial of Cases Relating to Atrocities and Sexual Violence towards Women and Children), Kozhikode.

2. In the present petition, the petitioner would contend that he is totally innocent, and that he has been falsely implicated in this case. According to the petitioner, what all done by him were perfectly within the parameters of clinical examination of the patient. It is further stated that the petitioner had examined the minor girl in the presence of the near relatives in both the occasions. According to the petitioner, he is a Doctor who started his practice in the year 1970, and he has been following clinical methods for examination which is the foundational stone for any medical practitioner. Thus, it is contended that the proceedings initiated against him would amount to abuse of process of law, and hence it is highly necessary to quash the same.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.

4. The statement given by the victim to the Investigating Officer, and also to the Magistrate under S.164 of the Code of Criminal Procedure, 1973 (in short, 'CrPC'), would go to show that she had clinical complaints of chest pain and abdominal pain. So also, it could be seen from the aforesaid statements that the victim complained about the pain upon her collar bone and also about growth deficiency. According to the prosecution, it was on 08/04/2023 that the victim met the petitioner for the first time for the purpose of treatment. On that day after examining the victim, the petitioner is said to have advised her to undergo scanning and to come with the scan report. It is thereafter that the victim visited the petitioner for the second time on 11/04/2023 along with her mother. Admittedly, when the petitioner physically examined the victim at the treatment room, her mother was sitting by the side of her. It is at that time that the petitioner allegedly put his hands inside her innerwear and pressed her breasts and naval portion pretending it to be part of the medical examination of that patient. The victim has stated in her First Information Statement (FIS) that at first, the petitioner had pressed her breasts with the stethoscope, and it