New Delhi: The Allahabad high court has pulled up the Uttar Pradesh government for the non-availability of radiologists in various districts of the state describing it as the reason behind “undue harassment” of victims of crime, including rape, due to delays in their medico-legal radiologist examination.
The court reprimanded the state after an alleged rape victim had to face “extreme trauma” due to the non-availability of a radiologist in her native district Ballia, causing a delay in the process of ascertaining whether she was an adult or a minor.
The girl’s age was critical to the criminal case, which involved her family lodging an FIR under rape, kidnapping and aggravated penetrative sexual assault charges against a man she was in a relationship with.
Hearing the matter, the court observed that it was “unfortunate that many districts” of Uttar Pradesh do not have any radiologists posted.
Radiologists are doctors who have expertise in medical imaging for diagnosis and treatment of disease and injury.
“This court has time and again observed that the radiologists are not posted at various districts across the State,” noted Justice Krishan Pahal, while hearing the bail plea of a man accused of raping a girl and kidnapping her.
“The victims are facing undue harassment due to delays in their medico-legal radiological examination, primarily caused by the non-availability of radiologists in various districts across the state,” said Justice Pahal in an order dated August 29.
The matter concerns an FIR that was lodged in Ballia in 2023 under charges of rape of a minor, kidnapping and kidnapping to compel a woman into marriage or illicit intercourse. Relevant sections of the Protection of Children From Sexual Offences Act or POCSO Act were also slapped against the accused man P.K. Gupta.
The girl’s mother alleged that Gupta enticed away her daughter on March 16, 2023 and married her at a temple in Mumbai. She claimed that her daughter was a minor, aged 13, at the time of the alleged crime.
After the matter came to court, the judge ordered that an ossification test be conducted on the girl to ascertain her age. The test report by the chief medical officer of Ballia indicated that she was about 19 years old and not 13, as claimed by the mother.
The victim and Gupta were in a romantic relationship. Gupta told the court that she had gone along with him through her own consent, as recorded in her statement, and that she was willing to spend her life with his family.
In her statement under section 164 of CrPC, the girl told a local magistrate that she ‘married’ Gupta through her own will and was living with him in the capacity of a ‘wife’. She also said that her mother would beat her whenever she was found talking to Gupta, with whom she was in a romantic relationship for two years.
The state government counsel opposed Gupta’s bail on the grounds that the victim was allegedly a minor, aged 13, and as such her consent could not be taken into consideration in the eyes of the law.
After hearing both sides, Justice Pahal concluded that the girl’s mother “deliberately” reported her age as 13, which is below the age of consent (18). This made the case fall under the purview of POCSO Act. Justice Pahal said that “this misrepresentation has led to severe legal consequences for the accused, which is his incarceration.”
The court further noted that since the ossification test report indicated that the girl was 19 years old, it made it “inappropriate” to apply POCSO in the case.
Gupta has been in jail since February 20, 2024. “This wrongful imprisonment could have serious implications for the applicant’s life, reputation, and future,” said Justice Pahal as he granted Gupta bail.
While observing that Gupta had suffered due to the “misuse” of POCSO Act, Justice Pahal also stressed that the woman had also faced trauma due to unavailability of a radiologist in the entire district of Ballia.
The state government informed the court that the victim was taken from Ballia to neighbouring district Varanasi but she was denied a radiological examination as the court order was only for an examination by CMO Ballia.
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“This is a classic example of red tape approach,” said Justice Pahal.
The girl was then taken to Azamgarh where her ossification test was conducted at a 100-bed community health centre.
CMO Ballia, in an affidavit, informed the court that there was only one radiologist posted in Ballia but he expired on July 7, three days after the HC had ordered the ossification test.
Since there was no radiologist working in the Provincial Medical and Health Services in Ballia, the victim’s radiological examination could not be conducted there.
“The circumstances of the instant case instead of reducing have added to the woes of the victim, as she has been carried from one place to another due to the non-availability of a radiologist,” Justice Pahal said.
The court further said that it had “time and again observed” that radiologists were not posted at various districts.
“The victims are facing undue harassment due to delays in their medico-legal radiological examination, primarily caused by the non-availability of radiologists in various districts across the state,” said Justice Pahal.
The high court judge directed the CMO Varanasi and the additional director of the health department, Azamgarh to appear in person and explain the reasons for the “lethargic and irresponsible approach causing extreme trauma to the victim due to delay” in conducting her ossification test.
The court also directed the Uttar Pradesh director general (Medical and Health Services) to appear in person and explain the reasons why a radiologist was not posted in Ballia. Additionally, the court asked the senior official to submit an affidavit stating how many radiologists were posted in the various districts of the state; how many government medical colleges have radio diagnostic facilities; how many degree holders and diplomas holders in radiology there are in the state and about their present posting, and how many of them got admission in such courses through the PMHS quota.
In his eight-page bail order, Justice Pahal also observed that though the POCSO Act was “designed to protect minors,” in the above case “it appears to have been misused” due to the “false information” provided by the girl’s mother.
“This misuse not only harms the applicant but also undermines the credibility and integrity of the legal system and the POCSO Act itself. This situation exemplifies how the misuse of protective laws like the POCSO Act can lead to significant injustices,” said Justice Pahal.
The judge also commented that the POCSO Act was “never meant to criminalise consensual romantic relationships” between adolescents.
POCSO Act was formulated to protect children under the age of 18 years from sexual exploitation but “nowadays more often than not it has become a tool for their exploitation,” said Justice Pahal.
Explaining the reasons for granting bail, the court argued that the “fact of consensual relationship borne out of love should be of consideration” because it would amount to “perversity of justice” if the statement of the victim was ignored and accused was left to suffer in jail.
