The Madras High Court has upheld a lower court order declining to discharge a Puducherry-based doctor in a case relating to the sexual assault of a minor girl patient in the Union Territory in 2016.
Justice V Parthiban dismissed the criminal revision petition filed recently by Dr P Rajendran challenging the order of Special Court under the Protection of Children from Sexual Offences (POCSO) Act in Puducherry, rejecting his petition to discharge him from the proceedings.
Confirming the order of the lower court, the judge said, "This court is of the considered view that the conduct of the petitioner at the time of undertaking the medical examination has to be established one way or the other only during the trial in order to conclusively come to a conclusion..."
"By facing the trial, no prejudice would be caused to the petitioner since it is always open to him to come out unscathed by establishing his professional credentials and bona fides as claimed by the petitioner himself," he observed.
"At the same time, he cannot shut out the prosecution at the threshold and seek to discharge himself by mechanical application of Section 41 of the POCSO Act," he added.
On July 9, 2016, the girl, aged about 13 years, had visited the hospital run by Rajendran along with her maternal uncle and maid servant following complaints of stomach ache.
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They met the doctor who prescribed for a scan.
Thereafter, it was alleged that the doctor had asked the minor girl to lie down on the testing bed in his room, instead of giving treatment for stomach ache and removed her top.
According to prosecution, the petitioner had misbehaved with the girl and committed aggravated sexual assault on her as defined under Section 9(e) of the POCSO Act.
Subsequently, a case was registered against the petitioner for the offences under Sections 9(e) and 10 of the POCSO Act.
During the trial, the Special Court judge had taken cognisance of the final report filed by police after the investigation and on July 31 this year, dismissed the plea filed by the petitioner.
Following this, the doctor had moved an appeal in the high court.
In his petition, the doctor submitted that absolutely no ingredients were made out by the prosecution to constitute the offence under Section 9(e) of the POCSO Act to connect him with the alleged offence.
He also pointed out that Section 41 clearly excludes medical examination done by medical examiner from the purview of Sections 3 to 13 of the POCSO Act when such medical treatment is undertaken with the consent of parents or guardian.
Refusing to discharge the petitioner, the court said, "If the case of the petitioner is to be accepted that the medical practitioners need to be protected under all circumstances under Section 41 of the POCSO Act, it would mean that no medical practitioner can ever be prosecuted and convicted even if there is involvement in POCSO offence. Such scenario would not have been the intention of Parliament while enacting the law."
"After all, the objective of the POCSO Act was to protect children from perpetrators of sexual assault and it cannot stand stymied at the threshold by discharging the person like the petitioner who stood charged for offences under Sections 9(e) and 10 of the POCSO Act, the judge noted.
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