Medical Examination of the Arrested Person: Sections 51 to 53

Section 52: a person arrested for rape

The section is a special case of section 51 with three additional features.

Who examines. A registered medical practitioner employed in a hospital run by the Government or by a local authority, and in the absence of such a practitioner within a radius of sixteen kilometres from the place of the offence, any other registered medical practitioner.

What the report must contain. The name and address of the accused and of the person who brought him; his age; marks of injury if any; the description of material taken from the person of the accused for DNA profiling; and other material particulars in reasonable detail. The report must state precisely the reasons for each conclusion, and must note the exact time of commencement and completion of the examination.

Where it goes. Without delay to the investigating officer, who forwards it to the Magistrate as part of the documents accompanying the police report under section 193.

Section 53: examination of every arrested person

This section serves a different purpose and candidates often merge it with section 51, which loses marks.

It is not for gathering evidence against the accused. It is a safeguard for him. When any person is arrested, he shall be examined by a medical officer in the service of the Central or a State Government, and if none is available by a registered medical practitioner, soon after the arrest.

A further examination may be made if the medical officer thinks one necessary.

A female arrested person is to be examined only by or under the supervision of a female medical officer, and if none is available a female registered medical practitioner.

The record. The examining officer prepares a record mentioning any injuries or marks of violence on the person arrested and the approximate time when they may have been inflicted.

A copy goes to the arrested person or to a person nominated by him. That is the protection: an injury recorded at the time of arrest cannot later be attributed to the arrest, and an injury appearing afterwards cannot be explained away.

Section 54: identification of the arrested person

Where identification of an arrested person by another is considered necessary for the investigation, the Court having jurisdiction may, on the request of the officer in charge of a police station, direct him to subject himself to identification in such manner as the Court thinks fit. Where the identifying person is mentally or physically disabled, the process takes place under the supervision of a Magistrate, who must ensure that the person identifies using methods he is comfortable with, and the process must be recorded by audio-video electronic means.

The constitutional line

Sections 51 to 53 permit force. They do not permit everything.

What may be compelled. Blood, swabs, hair, nail clippings, sputum, sweat and the physical examination of the body. These furnish material for comparison and are outside article 20(3) on the reasoning of Kathi Kalu Oghad.

What may not. Narco-analysis, polygraph examination and brain electrical activation profiling. Selvi v. State of Karnataka held that the results of all three bear a testimonial character, that compelling them violates article 20(3) and substantive due process under article 21, and expressly that these techniques cannot be read into the statutory provisions which enable medical examination during investigation, that is, into the Explanation to what were then sections 53, 53A and 54 of the Code. The same reasoning applies to the Explanation to section 51 of the Sanhita, which is in the same terms.

That last point is worth stating in an answer, because it shows exactly where the boundary of these sections lies.

A worked example

Rohit Zende is arrested at ten at night on suspicion of a housebreaking in which the occupant was injured. He has fresh scratches on his forearm.

Section 53 first. He is taken to the rural hospital and examined by a Government medical officer soon after arrest. The record notes the scratches, their appearance and the estimate that they are twelve to thirty six hours old, and a copy goes to Rohit. That record protects him from a later claim that the police caused the scratches, and protects the prosecution from a claim that it invented them.

Section 51 next. The investigating officer has reasonable grounds to believe an examination will afford evidence: the occupant says she scratched her attacker. He requests an examination. The practitioner takes fingernail clippings and swabs the forearm. The Explanation expressly covers finger nail clippings and the use of DNA profiling, so no further authority is needed.

What may not be done. The officer may not have Rohit put through a polygraph without his consent, and a court order compelling it would be bad in law on Selvi.

The paperwork. The clippings are dried, packed, sealed, entered and forwarded, and the Kattavellai directions on documentation and on the forty eight hour deadline apply because DNA evidence is involved.

Distinctions

What beginners get wrong

Merging sections 51 and 53. One gathers evidence; the other protects the arrested person. Both may happen in the same case and they are not the same examination.

Forgetting the Explanation. It is the provision that makes DNA sampling from a suspect lawful without any separate statute, and India has no DNA statute.

Saying the sections authorise narco-analysis. Selvi holds in terms that they do not.

Missing the sixteen kilometre rule in section 52 and the requirement that the report describe the material taken for DNA profiling.

Quick revision

• Section 51: examination of an arrested person at a police officer's request where there are reasonable grounds that it will afford evidence; force as is reasonably necessary; a female only by or under the supervision of a female practitioner; report to the investigating officer without delay.
• The Explanation to section 51 covers blood, blood stains, semen, swabs in sexual offences, sputum and sweat, hair samples and finger nail clippings, by modern and scientific techniques including DNA profiling.
• Section 52: a person arrested for rape; a Government or local authority hospital practitioner, or any other if none within sixteen kilometres; the report must describe the material taken for DNA profiling, state reasons, and note the times.
• Section 53: every arrested person examined soon after arrest by a Government medical officer; injuries and their approximate time recorded; a copy of the report to the arrested person.
• Section 54: court-directed identification, with safeguards and audio-video recording where the identifying person is disabled.
• The line is Kathi Kalu Oghad and Selvi: material for comparison may be compelled; testimonial techniques may not, and they cannot be read into these sections.

Test yourself

1. What does "examination" include under the Explanation to section 51? The examination of blood, blood stains, semen, swabs in cases of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling, and such other tests as the registered medical practitioner thinks necessary in the particular case.

2. Distinguish section 51 from section 53. Section 51 is an evidence-gathering power exercised at a police officer's request where there are reasonable grounds to believe the examination will afford evidence. Section 53 is a mandatory examination of every arrested person soon after arrest, whose purpose is to record injuries and marks of violence, and a copy of that report goes to the arrested person.

3. What must a report under section 52 contain? The name and address of the accused and of the person who brought him, his age, marks of injury, the description of material taken from him for DNA profiling, and other material particulars in reasonable detail; it must state the reasons for each conclusion and note the exact time of commencement and completion.

4. May a narco-analysis be conducted under these sections? No. Selvi v. State of Karnataka held that the impugned techniques cannot be read into the statutory provisions enabling medical examination during investigation, and that compelling them violates article 20(3) and substantive due process under article 21.