Medical Examination of the Accused: Introuction
The medical examination of an accused person in India is a forensic exercise meant to document injuries, collect biological evidence, and provide an objective medical record for courts. Post-2012, allegations of custodial torture, misuse of potency tests, and judicial scrutiny of unscientific practices have pushed Indian law towards a rights-based, evidence-focused model.
Statutory Framework (CrPC / BNSS):
Section 51 BNSS: Permits examination of arrested persons when it may yield evidence; reasonable force allowed; female accused must be examined by or under supervision of a female doctor.
Section 52 BNSS: Specifically governs examination of persons accused of rape. Requires documentation of identity, injuries, materials collected, reasons for conclusions, and start/end time of examination. Report must be forwarded to the Investigating Officer and further to Magistrate (without delay).
Section 53 BNSS: Enables the accused to request examination to document injuries or disprove allegations, crucial in custodial torture claims.
Identification Law:
Criminal Procedure (Identification) Act, 2022: Expands collection of biometric and biological “measurements”, reinforcing DNA-based identification and further institutionalize biometrics and the shift away from archaic sexual-function testing.
Judicial Position:
Physical Evidence vs Self-Incrimination: Courts have consistently held that compelling physical evidence (fingerprints, blood, handwriting, DNA) does not violate Article 20(3), as it is not testimonial. This principle applies equally to blood and other bodily samples, including for DNA profiling.
Constitutional Limits: In Selvi v. State of Karnataka (2010), the Supreme Court clarified that while physical samples may be compelled, techniques intruding into cognitive privacy (narco analysis, polygraph, brain-mapping) are unconstitutional.
Potency Tests: The Madras High Court (2023) categorically held that routine potency testing is unscientific and unnecessary. A man is presumed potent; only when impotence is raised as a defence may the issue arise. Blood samples are sufficient for DNA profiling; semen collection by masturbation is unnecessary.
Rape Is a Legal Conclusion: Courts have repeatedly held that rape is a legal term, not a medical diagnosis. Doctors may only state whether findings are consistent or inconsistent with sexual activity. Absence of injuries or semenneither proves nor disproves rape.
Custodial Safeguards: Under D.K. Basu v. State of West Bengal (1997), every detainee must be medically examined every 48 hours, ensuring documentation of injuries and protection against custodial abuse.
What Doctors Must Not Write or Do:
Do not use the terms “rape,” “sexual assault” or “potency.” These are legal conclusions. Doctors should report only clinical findings such as signs of recent sexual activity or injuries.
Do not document genital size or perform invasive potency assessments. The definition of rape under Section 63 BNScentres on penetration “to any extent,” making penile measurements irrelevant.
Do not compel semen collection by masturbation. Blood samples are adequate for DNA profiling; forcing an accused to masturbate is unethical, violates dignity, and creates serious constitutional risk (self-incrimination/privacy/dignity concerns).
Do not comment on character, past sexual history or previous intercourse. Such comments are irrelevant to the present case.
- Doctors must resist requests for investigations not necessary for treatment or evidence and must never alter reports based on illegal or unethical police demands.
- Do not draw conclusions beyond the scope of medical science. For instance, absence of injuries or semen does not prove that intercourse did not occur; conversely, presence of injuries does not by itself confirm rape. Doctors should avoid speculating on guilt or innocence and should clearly state limitations.
- Do not ignore the accused’s health needs. After examination, the doctor must provide necessary treatment, including management of injuries, sexually transmitted infections or mental health support.
Proper Scope of Examination:
The examination serves only two purposes:
Medical care and injury documentation
Collection of physical evidence
Doctors are neutral experts, not investigators or adjudicators.
Reports must include identity details, timings, objective findings, materials collected, reasons for conclusions, and proper chain of custody documentation. History should be as far as possible recorded verbatim in the accused’s words.
Systemic Gaps:
Absence of clear definition of “reasonable force.” Section 52 BNSS permits use of reasonable force without defining it. Doctors lack guidance on when and how to restrain a non-cooperative accused. Specific protocols are needed to balance evidence collection with bodily autonomy.
- Persistence of unscientific practices. Despite judicial pronouncements, some police and medical officers continue to demand potency tests, semen collection by masturbation and measurement of genitalia. Uniform compliance with the MoHFW guidelines requires continuous training and periodic audits.
- Need for gender- and diversity sensitive protocols. Current guidelines primarily address cis-male accused and female survivors. There is limited guidance on the examination of accused persons who are women, transgender or intersex, including those who allege sexual violence by the police.
- Resource constraints. Many district hospitals lack forensic kits, DNA sampling infrastructure and trained staff. Without resources, even well-intentioned doctors may rely on outdated methods.
Conclusion:
Indian law permits the collection of physical and biological evidence from accused persons, but rejects medicalised humiliation, sexual function testing, and legal overreach by doctors. Courts, statutes, and guidelines converge on one principle: doctors must document facts, not decide crimes. Eliminating potency tests, avoiding legal terminology, resisting police pressure, and adhering to ethical neutrality are no longer best practices they are legal necessities. A rights based medical examination protects both the accused and the credibility of forensic medicine in India.
