Hyderabad: Setting aside an order directing a rape accused to undergo a potency test, the Telangana High Court has held that the prosecution had not explained how the test would assist the case when the charge was about digital, rather than penile, penetration.
Justice J. Sreenivas Rao said that the medical examination could not be justified merely by the seriousness of the allegation and the investigating agency’s power to collect evidence. The prosecution needed to show why the test was relevant and necessary, Indian White Paper (IWP) quoted.
The judge said, “Such examinations must be based on the facts and circumstances of the particular case and satisfy the requirements of relevance, necessity and proportionality, while safeguarding the accused’s privacy, bodily autonomy, personal liberty and dignity under Article 21 of the Constitution.”
Petitioner M. Uday Krishna Reddy challenged a Magistrate’s order allowing investigators to subject him to a potency test under Section 52 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).
During the investigation, rape and other charges had been added to a complaint against him.
Appearing for him, G. Ashok Reddy submitted that the allegation was one of digital, rather than penile, penetration. The prosecution had not made any connection between the potency test and that allegation, he said.
Public Prosecutor Palle Nageswara Rao submitted that the examination was needed to assess the accused’s capability to perform a sexual act and would assist in a complete investigation.
The court found that the application did not explain how the test would help investigate the alleged digital penetration. The magistrate had allowed it, as the allegations were grave and investigators were entitled to collect incriminating material.
The court allowed the petition and set aside the order permitting the potency test. It said the prosecution could make a fresh application for the examination in accordance with law.
