Kerala HC Quashes POCSO Case Against Doctor | Bad Touch Allegation Alone Cannot Prove Sexual Intent During Medical Exam In Presence Of Kin
Sanchayita Lahkar
The High Court of Kerala Single Bench of Justice G. Girish allowed a petition seeking to quash proceedings initiated under the Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act against a medical practitioner. The Court held that the medical examination of the minor complainant, conducted in the presence of her mother and elder sister, could not establish the existence of sexual intent. Consequently, it quashed the criminal proceedings pending before the Special Court under the POCSO Act, Kozhikode, arising out of the crime registered by Kozhikode Kasaba Police.
The petitioner, a pediatrician aged 79 years, stood accused in a matter registered as S.C. No. 735 of 2023 on the files of the Fast Track Special Court (POCSO Act), Kozhikode. The allegations pertained to offences punishable under Section 354A(1)(i) of the Indian Penal Code and Sections 9(e), 9(l) read with Section 10 of the POCSO Act, 2012.
The complainant, a minor girl studying in Class 10, had visited the petitioner’s dispensary on multiple occasions in April 2023 for treatment relating to chest pain, abdominal pain, and growth deficiency. The first consultation took place on 08.04.2023, after which the petitioner allegedly advised diagnostic scanning. On 11.04.2023, the minor, accompanied by her mother, returned with the reports. During the physical examination, the petitioner was alleged to have put his hands inside the minor’s garments and pressed her breasts and naval area.
The victim reportedly communicated this incident to her elder sister, who initially dismissed it as a possible misunderstanding. A subsequent consultation on 17.04.2023, attended by the victim and her elder sister, resulted in a repeat of the alleged conduct. The elder sister reportedly became concerned after observing the victim shiver, which led to the filing of a complaint with the Kozhikode Kasaba Police Station on the same day.
Based on the complaint, Crime No. 290/2023 was registered, and the final report was filed before the Additional District and Sessions Court (for trial of offences against women and children) at Kozhikode. The petitioner moved the High Court under Section 482 of the Code of Criminal Procedure, 1973, seeking to quash the proceedings.
In support of his petition, the petitioner contended that he had performed a standard clinical examination in accordance with his decades-long medical practice, which began in 1970. He asserted that both examinations were conducted in the presence of either the victim’s mother or her elder sister, and that his conduct was strictly professional and devoid of any sexual overtures.
The victim’s First Information Statement and her statement recorded under Section 164 of the Cr.PC were produced before the Court. According to these statements, the victim indicated that the petitioner used a stethoscope initially, followed by physical contact which she perceived as inappropriate. However, neither the mother nor the elder sister had objected at the time of examination, nor did they indicate that any part of the examination occurred outside their view.
The prosecution relied upon the victim’s account to establish prima facie ingredients of offences under the IPC and POCSO Act. The petitioner, on the other hand, invoked the exemption provided under Section 41 of the POCSO Act, which safeguards medical examinations conducted with parental or guardian consent.
In the context of allegations under Section 354A(1)(i) of the Indian Penal Code, the Court stated that it must be demonstrated that the petitioner engaged in physical contact and advances involving unwelcome and explicit sexual overtures. Similarly, to establish an offence of sexual assault under Section 7 of the Protection of Children from Sexual Offences (POCSO) Act, it must be shown that the act was committed with sexual intent.
The Court recorded that the medical examination of the victim had been conducted by the petitioner in the presence of the victim’s mother on the first occasion, and in the presence of the victim’s elder sister on the second occasion. There was no assertion from either the mother or the elder sister that the examination was performed by the petitioner beyond their visibility.
The Court found it difficult to accept that the petitioner would have made sexual advances toward the victim while being in such close proximity to her mother and elder sister. It noted that the victim had reported chest pain and abdominal pain, and even according to her own version in the First Information Statement, the petitioner had initially applied a stethoscope to her breasts, following which he pressed her breasts with his hands.
Neither the statement given by the victim to the police nor her statement made before the Magistrate under Section 164 of the Code of Criminal Procedure contained any indication that the petitioner’s actions were driven by sexual intent. Although the victim did mention in her Section 164 statement that she felt the petitioner’s action constituted a “bad touch,” the Court held that it would be highly unsafe and improper to rely on such an isolated and casual remark to reach the conclusion that the petitioner had acted with sexual intent.
The Court noted that the possibility of the adolescent girl misunderstanding the petitioner’s conduct could not be ruled out. In any case, it concluded that the petitioner’s act could not be classified as an outrageous sexual act.
Referring to Section 41 of the POCSO Act, the Court stated that Sections 3 to 13 of the Act are not applicable where a medical examination or treatment is carried out with the consent of the child’s parent or guardian. In the present case, the medical examination had been conducted with the consent of both the victim’s mother and her elder sister.
The Court concluded that it could not be said that the prosecution records disclosed the petitioner had committed the alleged acts with sexual intent.
The Court allowed the petition and quashed the entire proceedings against the petitioner.
The proceedings against the petitioner/accused in S.C. No. 735 of 2023 on the files of the Special Court under the POCSO Act, Kozhikode, arising out of Crime No. 290/2023 of Kozhikode Kasaba Police Station, were ordered to be quashed.
The Court concluded that continuation of the proceedings based on the available material was unwarranted, and that the prayer for quashing was justified in law.
Advocates Representing the Parties
For the Petitioners: Shri. Nirmal S, Smt. Veena Hari, Smt. Keerthy Johnson, Smt. Mintu Jose, Smt. Gini George, Smt. Aishwarya Shivakumar
For the Respondents: Smt. Pushpalatha M.K., Senior Public Prosecutor
Case Title: XXX v. State of Kerala & Another
Neutral Citation: 2025:KER:42238
Case Number: Crl.M.C. No. 3538 of 2025
Bench: Justice G. Girish
[Read/Download order]
