Medical Examination under the | Section 51 BNSS

Medical Examination under the BNSS, 2023: Sections 51, 52 and 53, Examination of a Person Accused of Rape, DNA Profiling and Article 20(3)

The Bharatiya Nagarik Suraksha Sanhita, 2023 provides for four distinct medical examinations, and they serve two opposed purposes. Sections 51 and 52 exist to obtain evidence and are conducted at the instance of the investigating agency, with force permitted. Section 53 exists to protect the arrested person and is conducted as a matter of course on every arrest, with a copy of the report given to him. Section 184 deals with the victim of a sexual offence, and requires her consent. Confusing the first with the third is the commonest error in this area, and the consequences of the confusion are substantial.

Behind all four lies a constitutional question that has been settled for more than sixty years: does compelling a person to submit his body for examination compel him to be a witness against himself? The answer is no, because a specimen taken for comparison conveys no personal knowledge of the facts. That distinction, between a communication and a specimen, is the foundation of this topic and the reason the statutory power exists at all.

Figure 1: The four medical examinations compared

1. Section 51: Examination of the Accused at the Request of a Police Officer

Section 51, BNSS 2023

(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of Sub-Inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by or under the supervision of a female registered medical practitioner.

Explanation. — “examination” shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.

1.1 The five conditions

The person must have been arrested. The section operates on “a person arrested on a charge”. It confers no power over a suspect who has not been arrested, or over a witness.
The offence and the circumstances must be such that there are reasonable grounds for believing an examination will afford evidence. The belief must relate to the particular case; a general expectation that an examination might be useful is not enough.
The request must come from an officer not below the rank of Sub-Inspector. A constable or head constable cannot set the section in motion.
Only a registered medical practitioner may conduct it, with persons acting in good faith in his aid and under his direction.
A female is examined only by or under the supervision of a female registered medical practitioner, under sub-section (2).

Where those conditions are satisfied, the section permits the use of such force as is reasonably necessary. The words are important: the force is limited to what the examination requires, and a person who resists may be restrained to the extent necessary to permit the examination and no further. The permission to use force is what distinguishes section 51 from every other examination in the Sanhita, and it is why the conditions are drawn as tightly as they are.

1.2 The Explanation: what may be taken

Figure 2: The scope of the examination and the constitutional line

The Explanation is inclusive, so the list is not exhaustive, and it closes with a residuary clause covering such other tests as the practitioner thinks necessary in the particular case. The express mention of DNA profiling carries forward the amendment made to the Code of Criminal Procedure in 2005 and puts beyond argument that the taking of a sample for DNA analysis falls within the section.

Two limits should be noticed. The residuary clause is controlled by the words that precede it, so it covers tests of the same character as those listed, namely the taking and analysis of bodily substances. And the whole Explanation is directed at material taken from the body. It does not authorise the administration of any substance to the person, nor any procedure directed at his mental processes, and the techniques of narco-analysis, polygraph examination and brain mapping stand on an entirely different footing.

2. Article 20(3) and the Line Between Specimen and Testimony

Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself. If the compelled giving of a blood sample or a fingerprint were to be a witness against oneself, section 51 could not stand. The question was settled by a Bench of eleven Judges in 1961.

📖 State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 (Bench of eleven Judges)

Facts: The accused in a group of appeals had been compelled, while in custody, to give specimen handwriting, signatures and thumb impressions for comparison with disputed documents. It was contended that the compulsion made them witnesses against themselves within Article 20(3), and that an earlier decision of the Court had so held.

Held: The Court held that “to be a witness” means to impart knowledge in respect of relevant facts by an oral statement or a statement in writing, and does not include the mere mechanical process of producing a document or giving a specimen. Specimen handwriting, signatures, thumb impressions, palm impressions and foot impressions are given for the purpose of comparison and furnish no personal testimony: they are unchanging physical characteristics, and their production does not convey any information within the personal knowledge of the accused. Such compulsion therefore does not violate Article 20(3). The Court also held that a person in police custody is not for that reason alone under “compulsion”, and that compulsion means duress.

Ratio: Article 20(3) protects a communication of personal knowledge, not the physical characteristics of the person. A specimen taken for comparison is not testimony, and compelling it is not compelling a person to be a witness against himself.

Outside Article 20(3): a specimen for comparison	Within Article 20(3): a communication of knowledge
Fingerprints, palm and foot impressions	A confession or an admission
Specimen handwriting and signatures	An answer furnishing a link in the chain of evidence
Voice samples ordered under section 349	An answer tending to expose the person to a penalty or forfeiture
Blood, blood stains, semen, swabs, sputum, sweat, hair and nail clippings under section 51	The results of narco-analysis, polygraph examination and brain mapping administered involuntarily
DNA profiling	Any technique that extracts what the person knows without his volition

The line has been tested at its edge by techniques that operate on the mind rather than the body. Those have been held to fall on the protected side, because their results are testimonial in character: they reveal the personal knowledge of the subject and are not comparable to a fingerprint, and their involuntary administration additionally offends Article 21 as an intrusion into mental privacy. Section 51, by confining itself to the taking of bodily substances, stays on the unprotected side of the line.

3. Section 52: Examination of a Person Accused of Rape

Section 52, BNSS 2023

(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of such person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority, and in the absence of such a practitioner within the radius of sixteen kilometres from the place where the offence has been committed, by any other registered medical practitioner, acting at the request of a police officer, to make such an examination of the arrested person and to use such force as is reasonably necessary.

(2) The registered medical practitioner shall without delay examine such person and prepare a report giving his reasons for each conclusion arrived at.

(3) The report shall state the name and address of the accused and of the person by whom he was brought, the age of the accused, marks of injury, if any, on his person, the description of material taken from the person for DNA profiling, and other material particulars in reasonable detail.

(4) The report shall specifically record the exact time of commencement and completion of the examination.

(5) The registered medical practitioner shall, without delay, forward the report to the investigating officer, who shall forward it to the Magistrate as part of the documents under section 193.

Section 52 is a specialised version of section 51 for a single class of offence, and every difference between the two is directed at reliability. The examination must be by a practitioner in a Government or local authority hospital, with a fallback only where none is available within sixteen kilometres. It must be conducted without delay. The report must give reasons for each conclusion, must describe the material taken for DNA profiling, and must record the exact time of commencement and completion. It goes to the investigating officer without delay and forms part of the documents forwarded under section 193.

The requirement to record the exact times is not a formality. In a case where the identity of the offender turns on scientific comparison, the interval between the offence and the examination is material to the value of the material recovered, and a report that does not record it cannot be evaluated.

4. Section 53: Examination of Every Arrested Person

Section 53, BNSS 2023

(1) When any person is arrested, he shall be examined by a medical officer in the service of the Central Government or a State Government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made.

Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case she is not available, by a female registered medical practitioner.

(2) The medical officer or registered medical practitioner shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted.

(3) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.

4.1 Why section 53 is the most important of the four

The section is short and it is easy to read past it. It is nonetheless the principal structural protection against custodial violence in the entire Sanhita, and for three reasons.

It is mandatory and universal. The word is “shall”, and the obligation attaches to every arrest, without any threshold of gravity, any request by anyone, or any discretion in the officer. There is no category of arrested person to whom it does not apply.
It fixes the condition of the person at the moment he entered custody. The record must mention any injuries or marks of violence and the approximate time when they may have been inflicted. If the person is later found to have injuries, the report is what locates them in time; and its absence is what makes an allegation of custodial injury both difficult to prove and difficult to disprove.
The report goes to the arrested person. Sub-section (3) requires a copy to be furnished to him or to his nominee. A record held only by the authority that might be accused is of limited protective value; a record in the hands of the person protected is of a different order.

⚠ Section 51 and section 53 are opposite in purpose

Section 51 is an examination in the interest of the investigation. It is conducted at the request of a police officer, requires reasonable grounds for believing it will afford evidence, permits the use of force, and produces material for the prosecution. The report is not required to be given to the person examined.

Section 53 is an examination in the interest of the arrested person. It is conducted as a matter of course on every arrest, requires no request and no grounds, permits no force, and produces a record of his physical condition. A copy of the report must be given to him or his nominee.

The two are frequently cited interchangeably, and the error matters. An examination conducted under section 53 does not authorise the taking of samples for investigative purposes; and an examination conducted under section 51 does not discharge the mandatory duty under section 53.

Section 53 should be read with section 56, which places a duty on the person having custody to take reasonable care of the health and safety of the accused, and with section 196(3), which requires a magisterial inquiry where a person dies or disappears, or a woman is alleged to have been raped, while in the custody of the police. The three together are the Sanhita’s answer to the problem the custodial jurisprudence of the 1990s identified: a record on entry, a duty during custody, and a mandatory judicial inquiry on death.

5. Section 184: Examination of the Victim

Section 184 deals with the other side of a sexual offence and is drafted on a different principle throughout. Where the offence is one of rape or an attempt to commit rape, the woman against whom the offence is alleged shall be examined by a registered medical practitioner employed in a hospital run by the Government or a local authority, and in the absence of such a practitioner by any other registered medical practitioner, with the consent of the woman or of a person competent to give such consent on her behalf, and the practitioner shall without delay examine her and prepare a report.

Element	Section 52: the accused	Section 184: the victim
Consent	Not required; force reasonably necessary may be used	Consent of the woman, or of a person competent to give it on her behalf, is a condition
Who conducts it	A practitioner in a Government or local authority hospital; failing one within sixteen kilometres, any registered practitioner	The same, and the examination is conducted within twenty-four hours of receiving the information
Contents of the report	Name and address, age, marks of injury, material taken for DNA profiling, other particulars in reasonable detail, and the exact times	Name and address, age, description of material taken for DNA profiling, marks of injury, general mental condition, and other material particulars in reasonable detail, with reasons for each conclusion and the exact times
Where the report goes	To the investigating officer without delay, and by him to the Magistrate under section 193	To the investigating officer within seven days, and by him to the Magistrate under section 193
A statement in the report	—	The report shall specifically record that the consent of the woman or of a competent person was obtained

📖 State of Jharkhand v. Shailendra Kumar Rai, (2022) 14 SCC 299

Facts: In an appeal against an acquittal in a case of rape and murder, it appeared that the medical examination of the survivor had included the so-called two-finger test, and that the medical opinion had proceeded on whether she was habituated to sexual intercourse. The Court considered the legality and the evidentiary relevance of the practice.

Held: The Supreme Court held that the two-finger test has no scientific basis and does not prove or disprove allegations of rape. It re-victimises and re-traumatises the survivor, and is an affront to her dignity and privacy. Whether a woman is habituated to sexual intercourse is irrelevant to whether she consented on the occasion in question, and a medical opinion to that effect is inadmissible and impermissible. The Court reiterated that the practice had already been declared unconstitutional, directed the Union and State Governments to ensure that the guidelines on the medical examination of survivors are circulated to all hospitals, that the test be removed from medical curricula, and held that any person who conducts the test is guilty of misconduct.

Ratio: A medical examination directed at the sexual history of a survivor is both irrelevant and unlawful. The examination under section 184 is directed at injuries and at material capable of scientific comparison, and not at the character of the woman examined.

6. Refusal to Submit, and Other Practical Questions

Question	Position
May the accused refuse to be examined under section 51?	The section permits such force as is reasonably necessary, so refusal does not defeat the examination. The force must be proportionate and must be applied by or under the direction of the registered medical practitioner
May an adverse inference be drawn from a refusal?	Where a person refuses to give a sample which the law permits to be taken, the court may take the refusal into account in assessing the evidence, along with everything else. The refusal is not itself proof of guilt
Does the examination require an order of a Magistrate?	Not under section 51 or section 52, which operate on the request of a police officer. Section 349, which deals with specimen signatures, handwriting, finger impressions and voice samples, does require an order of a Magistrate, and requires that the person has been arrested in connection with the case
May a person not arrested be examined?	Not under section 51 or section 52, both of which apply to a person arrested on a charge. A witness cannot be compelled under these sections
Who bears the cost of the examination?	The Sanhita is silent. In practice the examination under section 53 is conducted at a Government facility, and the Explanation to section 51 contemplates examination by a registered medical practitioner acting at the request of the police
What is the evidentiary value of the report?	The report is the opinion of an expert and is not conclusive. Its admissibility and weight are governed by the Bharatiya Sakshya Adhiniyam, 2023, and the practitioner may be called to prove it and to be cross-examined
Does a defect in the examination vitiate the trial?	No. Chapter XXXVII governs, and section 511 makes failure of justice the test. A defective or absent examination goes to the weight of the prosecution case rather than to the validity of the proceeding

7. Key Takeaways

The position stated shortly

1. The Sanhita provides for four medical examinations: section 51 of the accused at the request of a police officer, section 52 of a person accused of rape, section 53 of every arrested person, and section 184 of the victim of a sexual offence.

2. Section 51 requires that the person be arrested, that there be reasonable grounds for believing the examination will afford evidence, and that the request come from an officer not below the rank of Sub-Inspector. It permits such force as is reasonably necessary.

3. The Explanation to section 51 includes blood, blood stains, semen, swabs in sexual offences, sputum and sweat, hair samples and finger nail clippings, by modern and scientific techniques including DNA profiling, and such other tests as the practitioner thinks necessary.

4. Compelling a specimen for comparison does not violate Article 20(3), because “to be a witness” means to impart personal knowledge, and a physical characteristic conveys none: Kathi Kalu Oghad.

5. The protection does extend to techniques operating on the mind, whose results are testimonial and whose involuntary administration also offends Article 21.

6. Section 52 requires a practitioner from a Government or local authority hospital, failing one within sixteen kilometres; the report must give reasons for each conclusion, describe the material taken for DNA profiling, and record the exact times of commencement and completion.

7. Section 53 is mandatory for every arrested person, records injuries and marks of violence and the approximate time of infliction, requires a female practitioner for a female, and requires a copy of the report to be furnished to the arrested person or his nominee.

8. Section 51 serves the investigation; section 53 protects the arrested person. Neither discharges the other.

9. Section 184 requires the consent of the victim, examination within twenty-four hours, and the report to be forwarded within seven days.

10. The two-finger test has no scientific basis, is irrelevant to consent, re-victimises the survivor, and its conduct amounts to misconduct: State of Jharkhand v. Shailendra Kumar Rai.

8. Frequently Asked Questions

What is the difference between section 51 and section 53 of the BNSS?

Section 51 is an examination in the interest of the investigation, conducted at the request of a police officer not below the rank of Sub-Inspector where there are reasonable grounds for believing it will afford evidence, and force may be used. Section 53 is an examination in the interest of the arrested person, conducted as a matter of course on every arrest, recording injuries and marks of violence, with a copy of the report given to him or his nominee.

Is medical examination of every arrested person compulsory?

Yes. Section 53(1) provides that when any person is arrested he shall be examined by a medical officer soon after the arrest, and where the arrested person is a female, only by or under the supervision of a female medical officer or practitioner.

Can the police compel a DNA sample?

Yes, under section 51, where the person has been arrested on a charge and there are reasonable grounds for believing that an examination will afford evidence. The Explanation expressly includes DNA profiling, and the section permits such force as is reasonably necessary.

Does a compelled blood or DNA sample violate the right against self-incrimination?

No. A Bench of eleven Judges held in Kathi Kalu Oghad that “to be a witness” under Article 20(3) means to impart personal knowledge, and that a specimen given for comparison is a physical characteristic conveying no such knowledge. Techniques operating on the mind stand on a different footing.

Who examines a person accused of rape?

Under section 52, a registered medical practitioner employed in a hospital run by the Government or a local authority, and in the absence of such a practitioner within sixteen kilometres of the place of the offence, any other registered medical practitioner, acting at the request of a police officer.

Is the two-finger test permitted?

No. The Supreme Court has held that it has no scientific basis, is irrelevant to the question of consent, re-victimises the survivor, and that any person conducting it is guilty of misconduct. The examination under section 184 is directed at injuries and at material capable of scientific comparison.

Does an arrested person get a copy of his medical report?

Yes, under section 53(3), which requires a copy of the report to be furnished to the arrested person or to the person nominated by him.

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