Allahabad High Court flags misuse of POCSO Act, lack of radiologists to conduct ossification tests

The Allahabad High Court recently observed that sexual assault victims were facing undue harassment because of delays in their medico-legal examination due to the non-availability of radiologists in various districts across the State [Prakash Kumar Gupta vs State of UP & 3 Others]..It is unfortunate that many districts of Uttar Pradesh do not have any radiologists posted, the Court said. “This Court has time and again observed that the radiologists are not posted at various districts across the State. The victims are facing undue harassment due to delays in their medico-legal radiological examination, primarily caused by the non-availability of radiologists in various districts across the state,” the Court said.Considering the situation, Justice Krishan Pahal has now directed the Director General (Medical and Health) to remain present before the Court..The senior health department officer has also been directed to file an affidavit with district-wise details of the number of radiologists, the number of degree and diploma holders in radiology and the number of government medical colleges with radio diagnostic facilities.The Court passed the order while dealing with the bail application of an accused in a case under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act)..The Court in July had directed the Chief Medical Officer (CMO) Ballia to get an ossification test of the victim conducted. Due to non-compliance, the officer was summoned later.The Court was then informed that the radiologist in Ballia had expired in July and the victim’s examination could not, therefore, be conducted there.The government counsel told the Court that on directions of the Additional Director, Health, Azamgarh, the victim was later taken from Ballia to Varanasi. However, her radiological examination was refused there as the court order was for the CMO Ballia to conduct the exam. “This is a classic example of red tape approach. The victim was then sent to Azamgarh and her ossification test was conducted at the 100 bed CHC at Atraulia, District Azamgarh,” the judge noted..The Court observed that the circumstances of the case had added to the victim’s woes and thus took note of the overall non-availability of radiologists in the State..POCSO Act misused: CourtAn ossification test is sometimes required in criminal cases to determine the age of the victim or the accused. In sexual abuse cases, it is used to ascertain whether the victim was a minor at the time of the crime and whether the POCSO Act would come into play.In the present case, the ossification report revealed that the alleged victim was above 18 years of age, prompting the Court to criticise the wrongful invocation of the POCSO Act. Justice Pahal observed that the victim's father (informant) had deliberately reported that his "13-year-old" daughter had been enticed and taken away by the accused, to make the case fall under the purview of the POCSO Act.This misrepresentation has led to severe legal consequences for the accused, the Court said.“The ossification test report indicates that the victim is actually 19 years old. This suggests that the victim is legally an adult and, therefore, the application of the POCSO Act may be inappropriate in this case,” the Court noted.Due to such false representation of age, the accused remained in jail for more than six months. Such imprisonment could have serious implications for his life, reputation, and future, the Court observed. .The Court further said that the POCSO Act was designed to protect minors but appears to have been misused in this case. This misuse not only harms the applicant but also undermines the credibility and integrity of the legal system and the POCSO Act itself, it added.“This situation exemplifies how the misuse of protective laws like the POCSO Act can lead to significant injustices. It underscores the need for careful verification of facts, especially in sensitive cases involving minors, to ensure that the law is applied appropriately and that justice is served for all parties involved,” the Court underscored.The Court further reiterated that the POCSO Act was formulated to protect children under the age of 18 years from sexual exploitation but nowadays, more often than not, it has become a tool for exploitation. “The Act was never meant to criminalise consensual romantic relationships between adolescents. However, this has to be seen from the facts and circumstances of each case. The fact of consensual relationship borne out of love should be of consideration while granting bail because it would amount to perversity of justice if the statement of victim was ignored and accused was left to suffer behind jail,” the Judge stressed.Considering the facts and circumstances of the present case, the Court granted bail to the accused..Advocate Raj Kumar Singh and Sunil Kumar Singh represented the accused.Advocate VKS Parmar represented the State. Advocate Ajeet Kumar Singh represented the informant..[Read Judgment]