Report No. 37
Note on Section 51 and Medical Examination
The question of physical and medical examination of the accused at the stage of investigation can be considered under the following heads:-
(a) whether such examination is legally permissible;
(b) if it is not legally permissible, whether a provision permitting it can be inserted without violating the constitutional privilege against self-incrimination;1
(c) whether such a provision ought to be inserted; and
(d) what ought to be the form of the provision.
As to (a) above, it may be stated that any interference with the body of a person is, prima facie, unlawful, and must justify itself under some express rule of law. According to Winfield2-"Battery is intentional application of force to another person". As observed by Salmond,3 "In respect of his personal dignity, therefore, a man may recover substantial damages for battery which has done him no harm whatever, as when a man's fingerprints are taken without observing the statutory requirements."
Halsbury states the law in England thus4:-
"Without the consent of a prisoner, a judge or magistrate has no power to order an examination of his person, and if in pursuance of such an order an examination is made, the person who made the order and the person who makes the examination are guilty of an assault; but if the prisoner consents, even under a misapprehension as to the power to make such an order, the consent is an answer to the charge of assault."5
In England, the right of a constable to search a prisoner upon his arrest appears to be impliedly recognised by the Magistrate's Court Act, 1952.6 As to the metropolis, see the Metropolitan Police Act, 1839.7 As to the extent of the right of search at common law, see the under-mentioned cases.8-15
It has been specifically held,16 that a Magistrate has no right to order an examination of the person of a prisoner. An examination by medical men, in pursuance of such an order, of the person of a female, (in custody upon the charge of concealing the birth of her illegitimate child) constitutes an assault.
Examination of the body-both of the accused and of the victim-thus seems to require consent in England.17
We shall now refer to sections 4 and 5 of the Identification of Prisoners Act.18
1. Article 20(3), Constitution of India.
2. Winfield Torts, (1963), p. 150.
3. Salmond Torts, (1961), p. 302.
4. Halsbury, 3rd Edn., Vol. 10, p. 742, para. 1425; As to search, see Halsbury 3rd Edn., Vol. 10, p. 356.
5. R. v. Bulton, (1871) 12 Cox CC 87 (91) (Rest of the footnote in Halsbury is omitted).
6. Magistrates' Courts Act, 1952 (15 & 16 Geo. 6 and 1 Eliz. 2, C. 55), section 39.
7. Metropolitan Police Act, 1839 (2 & 3 Vict., C. 47), section 66.
8. Willey v. Peace, (1951) 1 KB 94 DC: (1950) 2 All ER 724.
9. Bessell v. Wilson, (1853) 20 LT OS 233.
10. R. v. Bass, (1849) 2 Car & Kir 822.
11. Leigh v. Cole, (1853) 6 Cox CC 329.
12. Dillon v. O'Brien and Davis, (1887) 16 Cox CC 245.
13. R. v. Boulton, (1871) 12 Cox CC 87 (95).
14. R. v. Boulton, (1871) 12 Cox CC 356.
15. Latter v. Braddell, (1881) 50 LJ QB 448 (CA).
16. Agnew v. Jobsom, (1877) 13 Cox CC 625.
17. See Keith Simpson Doctor's Guide to Court, (1962), pp. 124 to 127.
18. The Identification of Prisoners Act, 1920 (33 of 1920).