“The mere raising of an allegation or defence regarding the accused’s potency does not, by itself, warrant such testing or justify interference with the criminal proceedings. The question of potency, where genuinely relevant, must be determined on the basis of the evidence adduced during trial, and a potency test may be resorted to only where there exists a specific and compelling necessity for the same. Therefore, routine or mechanical conduct of potency tests is impermissible,” the court said.
The case arose from a complaint lodged in July this year alleging sexual offences against the accused. During the investigation, additional provisions related to rape were added after the complainant’s statement was recorded and with the permission of the trial court. The high court said the prosecution’s case involved an allegation of digital penetration/rape.
Potency test plea rejected once
On July 30, the prosecution sought police custody of the accused, including for recovery of a mobile phone and for conducting a potency test. On August 5, the trial court declined custody for the potency test.
Justice J Sreenivas Rao said there was no dispute that digital penetration falls within rape.
It found that the prosecution had not specifically mentioned why the test was required or explained how it would help its case. It, however, granted limited police custody for recovery of the mobile phone, subject to conditions.
Later, the prosecution filed another application seeking permission to produce the accused before a government hospital for a potency examination. According to the high court, however, the fresh application too did not give specific reasons explaining why the test was necessary or how it would assist the investigation. It also did not point to any change in circumstances after the earlier rejection.
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Still, the trial court allowed the application on August 17, relying on the gravity of the allegations and the investigating agency’s right to collect incriminating material.
How will test help probe, court asks
Noting that the prosecution’s case involved an allegation of digital penetration and the accused had argued that there was no allegation of penile penetration, the court said was no clear link between the accused’s potency and the allegation being investigated.
However, the prosecution maintained that the potency examination was necessary to determine his capability to perform a sexual act and could provide relevant medical or scientific evidence.
The court said there was no dispute that the law allows such medical examinations or that potency tests are constitutional. The question was whether the prosecution had shown why the test was necessary in this case. The judge also said there was no dispute that digital penetration falls within the meaning of rape.
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Tests need to be justified
Considering earlier judicial decisions dealing with potency tests and other scientific examinations, the high court said that a male potency test should not be insisted upon as a routine requirement in sexual offence cases.
“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,” it said. The court also said that potency testing is not a mandatory requirement in sexual-offence cases and cannot be insisted upon just because an allegation concerning potency has been raised.
The high court found that the prosecution’s second application suffered from the same deficiency identified earlier by the trial court. It said that the trial court had allowed the application principally because the allegations were grave and the investigating agency had a right to collect incriminating material.
Justice J Sreenivas Rao said there was no dispute that digital penetration falls within rape.