SEPHY vs CBI WPCRL 1729/09 07/02/23 [ CORAM:
HON’BLE MS. JUSTICE SWARANA KANTA SHARMA]

[ DELHI HIGH COURT ]

• Protection of Human Rights Act Section 12 (a) Conduct of ‘Virginity test’ Violation of fundamental right Examination of accused by medical practitioner Whether includes virginity test There cannot be two sets of views regarding virginity test being violative of fundamental right, for victim of sexual assault on one hand and woman under investigation on other hand Conduct of virginity test on a woman who is victim of sexual assault or on a woman who may be an accused of an offence, cannot be on different footing No procedure, under any law for the time being, which provides for “virginity test” of a female accused Some fundamental rights cannot be suspended or infringed or abridged even when person is in custody Right of dignity in custody however does not include ordinary stresses and anxieties that a person may feel as a result of being in custody and under interrogation.

 

Relvant Paras

50. Learned counsel for National Human Rights Commission states that the Commission had considered the matter carefully, and the case of petitioner was closed with the following observations:
“…The Hon’ble Court had already seized the matter. Hence, the Commission is not inclined to proceed with the complaint in accordance with Regulation 9 of the NHRC (Procedure) Regulations, 1994 as amended. The complainant may, if so advise, bring the allegation of violation of human rights to the notice of the Court. The case is closed with these observations…”

55. The Supreme Court in Re: Assessment of The Criminal Justice System in Response To Sexual Offences (2020) 18 SCC 540 called for the status report from all states and union territories in the country on the question, among others, as under:
“17. Thus, we consider it appropriate to call for status report with regard to the following: –
…(5) whether the medical experts have done away with the Per-Vaginum examination commonly referred to as ‘Two- finger test’ and whether any directions have been issued by the states in this regard?…”

65. The Hon’ble Apex Court in Selvi & ors. v. State of Karnataka (2010) 7 SCC 263 while dealing with the constitutional validity of narco-analysis of an accused person sans consent, examined the scheme of Sections 53 and 54 Cr.P.C., the relevant observations of which have been reproduced as under:
“145. At this juncture, it should be noted that the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973 was amended in 2005 to clarify the scope of medical examination, especially with regard to the extraction of bodily substances……

66. A bare perusal of aforesaid provisions reveal that firstly, virginity test finds no mention in the ‘explanation’ to Section 53 as a technique to be used in the medical examination of an accused person to ascertain the facts which may afford evidence. Apart from techniques to be used in examination relating to sexual offences, certain methods and techniques such as examination of sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling are mentioned. Secondly, the Indian Parliament, while introducing the ‘explanation’ to Section 53 Cr.P.C. by the Code of Criminal Procedure (Amendment) Act, 2005, and listing several forms of medical examination, left the scope for more techniques to be included within its ambit. However, as held by the Apex Court in Selvi & ors. v. State of Karnataka (supra), the said scope would be governed by the rule of ‘ejusdem generis’. As per the Apex Court in, the words “such other tests” should construe to mean and include those tests which are in the same genus as the other forms of medical examination that have been specified. Briefly stated, the ruleof ‘ejusdem generis’ commands that meaning of general words following the specific words in a provision of law should be construed in light of the meaning and intent of those specific words. A reading of ‘explanation’ to Section 53 shows that the same mandates medical examination of an accused person by “use of modern and scientific techniques”. It would not be out of context to state here, that, by no stretch of examination, ‘virginity test’ can presumably fall under the said provision. Virginity test is neither modern nor scientific, rather archaic and irrational. Modern science and medical law disapproves the conduct of such tests on women, as already discussed in the preceding paras.

85. The concept of custodial dignity i.e. ensuring dignity of an individual while in custody, whether police or judicial, has been discussed at length in the case of Sunil Batra (II) v. Delhi Administration (1980) 3 SCC 488, which dealt with the torture of persons while in judicial custody. The Hon’ble Apex Court has also held in several judgments regarding violence in police custody. The present case draws the attention of the Court to take note of the important issue of dignity of a female in police custody. This Court holds that the concept of custodial dignity of a female will include her right to live with dignity even while in police custody. Conducting a virginity test on the pretext of reaching truth regarding allegations against her will amount to infringement and violation of her right enshrined in Article 21 and explained in the judgment of D.K. Basu v. State of West Bengal (supra).
86. This Court is not impressed with the argument of the law enforcement agency that the virginity test was necessary to uphold the laws since this argument itself flouts basic principles that a person’s dignity even in custody has to be upheld. The conducting of virginity test not only amounts to interference of the investigating agency with the bodily integrity but also psychological integrity of a woman which will have serious and profound effects on the mental health of a woman.

87. Some fundamental rights cannot be suspended or infringed or abridged even when a person is in custody and right to dignity is one such fundamental right which falls within the ambit of Article 21.

Family Welfare and Secretary, Department of Health and Family Welfare, Govt. of NCT of Delhi.
(iii) The Delhi Judicial Academy is directed to include in its curriculum and in the workshops conducted for investigating officers, prosecutors and other stakeholders, the information regarding this issue.
(iv) Similarly, the Delhi Police Academy for Training shall also include the necessary information regarding this issue in its training curriculum.
(v) The Commissioner of Police, Delhi is also directed to ensure that the investigating officers are informed and sensitized in this regard.

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judgement Delhi High Court CBI & ORS. Versus SR.SEPHY (CRL) 1729:2009

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