Potency Test of Rape Accused violates Right to Privacy, Section 53A of CrPC assailed in Kerala HC

A petition has been filed in the Kerala High Court challenging the Constitutional validity of Sections 53 and 53A of the Code of Criminal Procedure Code (CrPC) insofar as it permits Potency test of rape accused. The petition has also sought a declaration that Potency test of a rape accused violates his Right to Privacy under Article 21 of the Constitution..The petition filed by one Mathukutty MJ through advocate Renjith B Marar also assails Sections 29 and 30 of the Prevention of Children from Sexual Offences Act, 2012 (POCSO Act)..Background.The petitioner who is alleged to have sexually assaulted two children was initially charge-sheeted for offences under Sections 5(l), (m) of the POCSO Act as well as Section 506 (ii) of the IPC..An FIR came to be filed against the petitioner in September 2015, one day after he was arrested. The petitioner was on remand for 52 days..Subsequently, the petitioner was also charged under Section 376 of the IPC for rape..It is claimed by the petitioner that he is impotent and has been taking medication for the same. However, the medical test conducted on him by Taluk Hospital at Iritty stated that the petitioner is capable of sexual activity. According to the petition, the medical examination certificate stated,.“There is nothing to suggest that the person is not capable of doing sexual activity.”.The petitioner preferred representation before various authorities expressing his willingness to undergo further Potency test as also the illegality in the medical report of the Taluk Hospital. The efforts turned out to be futile prompting the petitioner to approach the High Court under Article 226..Grounds.Section 53A of CrPC.One of the main challenges in the petition is regarding Section 53A of the CrPC. Section 53A (1) empowers a medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, to conduct examination of a person arrested on a charge of committing the offence of rape or an attempt to commit rape. The medical practitioner can use such force as is reasonably necessary for that purpose, the provision states..It is the petitioner’s case that the above provision is self-incriminatory..The petitioner has contended that the provision for use of force is impermissible as per Part III of the Constitution of India. Article 20(3) of the Constitution prohibits compelling the accused person to be a witness against himself..Further, it is not spelt out as to what exactly would be ‘reasonable’ force which can be exercised in any case. Having left the same to the unchecked, unbridled discretion of the investigating officer, the provision violates Articles 14 and 21 of the Constitution of India, the petitioner contends..Regarding the use of Potency Test pursuant to Section 53A, the petition states that it is quite possible that a person suspected or accused of a crime would be compelled to testify through methods involving coercion threats or inducements during the investigative stages. Section 53A of the Code of Criminal Procedure gives scope for such a coercion or inducement more so when a person is subjected to a Potency test where his personal attributes also comes into consideration..It is Mathukutty’s contention that unlike DNA, Fingerprint or Blood Sample test, Potency test involves the personal statements and mental condition of the accused who is subjected to medical examination like the Lie Detector test. Hence, the use of force, to whatever extent it may be, would amount to nothing but coercion which is prohibited by Article 20..That apart, in a Potency test, the personal mental state of the subject towards the opposite party becomes relevant. The medical practitioner would also have to test the mental stage of the subject while ascertaining his capability of performing a sexual act. Under such circumstances compelling a person with force, being made available to investigating agency is disastrous and unconstitutional and violates the dignity and integrity of the concerned individual, the petition states..Section 29 of POCSO Act.Section 29 of the POCSO Act draws a presumption that when a person is prosecuted under any of the offences punishable under Sections 3, 5, 7 and 9, the Special Court shall presume that such person had committed or abetted the commission of such offence and it is for the accused to prove to the contrary..This, the petitioner has argued, violates the fundamental principle of ‘innocent until proven guilty’ which is envisaged by our Criminal Justice system and guaranteed by Article 21..“…a mandatory presumption unlike a directory presumption is caused to be imposed upon the Court which simultaneously performs the obligations of the Judge and the Jury is impermissible in law when there is no accountability for the prosecution unlike in an inquisitorial system”, the petition states..Section 30 of POCSO Act.Section 30 of the POCSO Act has also been challenged as unconstitutional in as much as the provision mandates the presumption of guilt upon the accused and the presumption of mental state upon the accused. It necessitates the accused to enter the witness box to explain his mental state and rebut the presumption thus violating the right to silence, the petitioner submits..Prayers.The petitioner has made, inter alia, the following prayers:.Declare that Section 53 and 53A of the Code of Criminal Procedure, 1973 in so far as it permits use of force and permits Potency test of the accused is violative of Articles 14, Articles 20(3) and Article 21 of the Constitution;Declare that a Potency test of the subject accused of the offence of rape would violate the Right to Privacy and hence violate Article 21 of the Constitution;Declare that Section 29 and Section 30 of the Prevention of Children from Sexual Offences Act 2012 is violative of Articles 14,19 and 21 as well as Article 20(3) of the Constitution of India..On the grounds that the petitioner is indeed impotent and incapable of having penile sexual intercourse, he has also prayed for an interim stay on the POCSO proceedings against him.