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(ii) Issue a writ order or direction in the nature of mandamus commanding the respondent nos. 2 & 3 to take necessary action for conducting potency test/medical examination of respondent no.5 in K.G.M.U. Lucknow as advised by the board of the doctors of District Hospital Moradabad in place of L.L.R.M. Medical College, Meerut.
(iii) Issue a writ order or direction in the nature of mandamus commanding the respondent nos. 2 & 3 to conduct fair and impartial investigation of case crime no. 34 of 2023, Under Section 498A, 323, 354, 504, 420 IPC and 3/4 D.P. Act, Police Station- Mahila Thana, District Moradabad within stipulated period."

17. So far as the legal position regarding the requirement of potency test, in cases where allegation has been made by the wife to the effect that marriage is not properly consummated and the husband is impotent and was incapable of consummating the marriage on account of his complete and total impotency is concerned, it may be pertinent to refer the judgment passed by this Court in the case of Jagdish Lal vs. Smt. Shyama Madan And Ors.3 in which it has been held as under :-

"7. Impotency means incapacity for accomplishing the act of sexual intercourse and by sexual intercourse, in this context, is meant not an incipient, partial or imperfect but a normal and complete coitus. Impotency is to be distinguished from sterility which may in some cases accompany impotency but is not necessarily associated with it, the two expressions denoting lack of two different powers. A person may be incapable of accomplishing the sexual act and yet be capable of procreating and conversely too, a person may be incapable or procreating and yet be capable of accomplishing the sexual act. The cause of impotency may be in the malformation or structural defect in the parts; in the functions, resulting in imperfect erection or premature ejaculation; in diseases, whether local or general or in the mind, manifesting itself a repugnance for the sexual act, fear, lack of confidence etc. It may also happen that a person is capable of having sexual intercourse but incapable of performing it with a particular individual, and in such a case the person must be regarded as impotent in relation to that particular individual regardless of his potency in general. These matters are too well settled to need reference to any medico-legal or legal authorities."

23. In view of the above, no comprehensive report regarding the potency test of the husband can be prepared and made without getting the petitioner medically examined along with the husband. In this case the Medical Inquiry Committee is of the opinion that the petitioner wife should also be medically examined as her husband has made a categorical statement before the Committee that his wife does not cooperate with him during sexual intercourse. There is no material available on record to substantiate the allegation made against the Inquiry Committee of LLRM Medical College necessitating the potency test/ medical examination of the respondent no.5 to be conducted by the Medical Board at KGMU Medical College, Lucknow.

24. As there is no need to issue any further direction regarding the prayer no.3 as the fair and impartial investigation is being carried out and the potency test of the husband had been conducted at the instance of the petitioner herself and this potency test was conducted at the stage of investigation as per Section 2(h) Cr.P.C. "investigation", which includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.