Karnataka High Court orders action against doctor for negligence in medical examination of POCSO survivor

The Karnataka High Court has directed the Principal Secretary of the Health Department to initiate the appropriate proceedings against a doctor who had issued a Sexual Assault Certificate without furnishing a conclusive opinion on whether or not the survivor had been subjected to sexual act [Thippeswamy@Thipeshi v. State]. .Single-judge Justice HP Sandesh had summoned the doctor before the court to explain why he had not given any opinion, to which the doctor had no response. "This Court has taken note of the callous attitude and negligence on the part of the doctor when the victim was subjected for medical examination, but no report is given and no provisional report is also given whether she was subjected to sexual act or not....This is one more classic case of negligence on the part of the doctor, who conducted the examination of the victim and not giving report and in a callous manner issuing Sexual Assault Certificate without any opinion and hence it is a fit case to direct the Principal Secretary, Health Department, to initiate the appropriate proceedings against the doctor, who had issued Sexual Assault Certificate," the Court said. .In an earlier matter before the same bench, the Court had directed the principal secretary of the Medical Department to issue a circular reiterating the duties of doctors who conduct medical examinations of sexual assault survivors, as in another case the doctor conducting the medical examination had been similarly negligent. .In this case, the 16-year-old girl was missing at home. Her family searched for her but could not find her, and filed a complaint. During the course of the investigation, the girl and the accused were both found and brought before the police.Upon enquiry, the girl disclosed that she and the petitioner-accused were in love, that he persuaded her to marry him, so they went away together and she was subjected to sexual acts. .A medical examination was conducted and a Section 164 (Recording of confessions and statements) statement of the victim was recorded by the Magistrate. The accused was charged under Sections 363 (kidnapping) and 376(2)(n) (committing rape repeatedly on the same woman) of the Indian Penal Code (IPC), Section 6 (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences Act (POCSO) and Sections 9 (punishment for male adult marrying a child) and 11 (promoting or permitting solemnisation of child marriages) of the Prohibition of the Child Marriage Act..The Court examined the medical report, where the doctor had noted that there were no injuries on the survivor's external genitalia. However, there was no information on whether the hymen was intact or not, and no finding or opinion on whether she had been subjected to a sexual act. Upon considering the sexual assault certificate issued by the doctor, the bench directed the doctor to be present before the court because he had not furnished an opinion with regard to the sexual assault, but only said that the opinion was pending until the Forensic Science Laboratory (FSL) report was obtained. .When the court asked the doctor why he had not furnished an opinion, and what is meant by a Sexual Assault Certificate which he had issued, he was silent before the court. The court did not accept his statement that he was waiting for the FSL report, as that report concerned collection of pubic hair, clothes, presence of semen, etc., and not a physical examination of the victim. The very purpose of subjecting the victim girl for medical examination was defeated since the doctor has not given the report but only issued a Sexual Assault Certificate without any opinion, noted the court. .Terming it as a callous attitude and negligence on the part of the doctor, the court referred to its order in an earlier case of Pradeep v. State of Karnataka, wherein the court had directed the Principal Secretary, Health Department to issue a notification stating the duties of doctors in conducting such medical examinations. .As this was another case of negligence on the part of the doctor who issued a Sexual Assault Certificate without any opinion, the court directed the Principal Secretary of the Health Department to initiate the appropriate proceedings against the doctor..Considering the facts and circumstances of the case, the court declined to grant bail to the petitioner. While dismissing the bail petition, the court directed the Registry to send a copy of the order along with a copy of the Sexual Assault Certificate to the Principal Secretary, Health Department, to take appropriate action against the doctor. Further, a circular with directions is to be issued to the Medical Officers in the entire State regarding their duties and responsibilities when a child victim is produced before the doctor for their opinion on whether penetrative sexual assault had taken place, the court ordered. .Advocate V Lakshmi Kanth Rao represented the petitioner, and High Court Government Pleader Vinayaka V.S appeared for the State. .[Read Order]