The Kerala High Court held that medical examinations can be conducted by medical practitioners if they suspect that internal injuries have been inflicted on accused persons as a result of custodial torture.
The petitioner is a doctor working with the Government Hospital. According to Section 53 of the Code of Criminal Procedure, 1973, a medical practitioner is required to medically examine the accused, but, this provision does not provide the various tests that are to be conducted by the medical practitioner. However, after the custodial death of Mr. Rajkumar, the then Judicial Commission, Justice Narayana Kurup issued recommendations to the Director of Health stating that medical practitioners must conduct examinations for detecting hidden injuries, because, according to the Judicial Commission, failure in reporting internal injuries of the arrested persons was the reason for the custodial torture and subsequent death.
However, according to the recommendations, specific tests to determine internal injuries were to be conducted only if the medical practitioners suspected internal injuries. The Director of Health misunderstood the recommendations and issued circular specifying tests that were ought to be mandatorily undertaken by the medical practitioners. However, on 14th June, 2021 another circular was issued by the Director of Health stating that the previous circular will be kept in abeyance until further direction.
According to the petitioner, since the initial circular was kept in abeyance, even if medical practitioners suspected internal injuries, they may not be able to conduct tests due to the absence of a direction or circular from the Health Department. Though the petitioner had filed representations to the respondents, however, the petitioner did not receive any response. It was contended by the petitioner that police always insist on recording external injuries and not otherwise. The petitioner submitted that internal injuries can be inflicted without causing any external injuries. However, since the prevailing law does not mandate medical practitioners to undertake tests to ascertain internal injuries; issuance of directions to medical practitioners to undertake tests to determine internal injuries was necessary.
Observations of the Court
Justice P.B. Suresh Kumar, after taking notice of the submissions made by the petitioner observed that the circular issued on 14th June, 2021 by the Director of Health “will not preclude the doctors conducting medical examination of persons accused in criminal cases, if there are indications or complaints of custodial torture.”
The Court passed an interim order and granted time for the State Government to file its view on the matter. Accordingly, the matter was listed to be heard after six weeks from 19th July, 2021.