Kerala High Court
Ibrahim vs State Of Kerala on 26 February, 2013
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
MONDAY, THE 11TH DAY OF MARCH 2013/20TH PHALGUNA 1934
Crl.MC.No. 1189 of 2013 ()
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AGAINST THE ORDER/JUDGMENT IN CMP.NO.148/2013 OF
JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM
DATED 26-02-2013
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CRIME NO. 725/2012 OF KOTHAMANGALAM POLICE STATION ,
ERNAKULAM DISTRICT
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PETITIONER(S)/PEITIONER/ACCUSED:
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IBRAHIM, AGED 55 YEARS,
S/O. MAKKAR, CHUDALAPARAMBIL HOUSE,
CHAKKANCHIRA BHAGAM, METHALA KARA,
ASAMANOOR VILLAGE, MUVATUPUZHA.
BY ADV. SRI.R.BINDU (SASTHAMANGALAM)
RESPONDENT(S)/RESPONDENT/STATE:
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STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.
BY PUBLIC PROSECUTOR SMT. R. REMA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 11-03-2013, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Kss
CRMC.NO.1189/2013
APPENDIX
PETITIONER'S ANNEXURES:
ANNEX.1; COPY OF THE FIRST INFORMATION REPORT DTD. 05/11/2012.
ANNEX.II: COPY OF THE REPORT DTD. 22/01/2013.
ANNEX.III: COPY OF THE OBJECTION FILED BY THE PETITIONER
DTD. 01/02/2013.
ANNEX.IV: COPY OF THE ORDER PASSED BY THE JUDICIAL FIRST CLASS
MAGISTRATE COURT, KOTHAMANGALAM IN CMP NO.148/2003
DTD. 26/02/2013.
RESPONDENT'S ANNEXURES: N I L
/TRUE COPY/
P.A.TO JUDGE
Kss
P.BHAVADASAN, J.
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Crl.M.C. No. 1189 OF 2013
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Dated this the 11th day of March, 2013
O R D E R
The petitioner is the accused in Crime No. 725 of 2012 of Kothamangalam Police Station and is alleged to have committed offences punishable under Sections 376, 377 and 506(1) of IPC. The question that arise in this case is a limited one and it is unnecessary to go into the details of this case. Suffice to say that the petitioner was arrested in relation to the crime and he remains under custody for a while. He was released on bail.
2. Subsequently the Investigating Officer moved the court which granted the bail for a direction to the petitioner to appear for potency test. It was very strongly opposed by the accused. The court below by order dated 26.02.2013 allowed the petition and directed the petitioner to appear before the Superintendent, Taluk Head Quarters Hospital, Kothamangalam for undergoing potency test. The said order Crl.M.C.No.1189/2013 -2- is assailed in this petition.
3. The learned counsel appearing for the petitioner pointed out that going by Section 53A, the examination of the accused in a case with an allegation of rape is to be undertaken immediately after the arrest and Investigating Officer cannot delay the examination. In this case, neither during the custodial period nor for a period long thereafter there was any demand for subjecting the petitioner to potency test. The belated request is not entertainable in view of Section 53A of the Code of Criminal Procedure.
4. Though the arguments may look attractive, it is without any substance at all. A plain reading of Section 53A will convince anybody that, it relates to a case where the officer concerned has reasonable grounds for believing that medical examination of the person of the accused will provide evidence as to the commission of such offence. Potency test has nothing to do with the commission of the offence though it is not important for investigating process it Crl.M.C.No.1189/2013 -3- may be relevant at the time of evidence. It cannot said to be an item of evidence of the commission of offence. Moreover, no serious prejudice is caused with the direction issued by the court below under Section 482 of Cr.P.C. The court below has only directed the petitioner to appear before the Taluk Head Quarters Hospital concerned for undergoing the potency test. It is not ordered under police custody of the petitioner.
Under these circumstances, this court finds no grounds to interfere with the order of the petition and is accordingly dismissed.
P.BHAVADASAN, JUDGE ds