Dr. Dilip B. Walke
Chairperson, Ethics & Medico Legal Committee, FOGSI
Doctor’s Duty In Reporting A Rape Case To Police
Ref : Regarding Section 39crpc And
Article compiled by Dr Dilip Walke, Past Chairman, Ethics and Medicolegal Committeee (2007-2010)
Acknowledgment: Dr Ravindra Bangal, Forensic expert, Mumbai
There is a question in the minds of Obstetrician and Gynaecologist whether it is mandatory for doctors to inform to police each and every case with history of sexual abuse; given the fact that it is considered to be a cognizable offense. We are often caught between this duty of ours and the wish of the victim to keep her name secret.
During the 3rd National Medicolegal Conference at Gurgaon, there was an extensive discussion regarding this topic with some of the legal luminaries and the carry home messages are being shared here for the benefit of all FOGSIANS.
- There exists a section called Section 39 of CrPC which gives a list of offences, the information regarding which is to be mandatorily provided to the police. That is, the doctor is duty bound to provide information about these enlisted offences (in Sec 39 CrPC) to the police. Failure to do so is punishable. However, the list of offences in Sec. 39 CrPC does not include the offence of sexual abuse. And hence, legally the doctor is not duty bound to inform the matter to the police, unless the patient or her relatives express their desire to do so or if the police seeks information about a particular case. Hence the message about reporting a case of sexual abuse is as follows
- The doctor should inform the patient (if >18yrs)/ parents or guardian in case of minor that the incidence narrated by the patient in her history amounts to a punishable offence and they have a legal remedy for it. If the patient/ parent or guardian does not have any objection for reporting the matter to the police, the doctor should promptly do so.
- Whenever the patient (>18yr)/ parent or guardian in case of minor express their desire to keep the matter as secret, we should perform our ethical duty of maintaining “professional secrecy”. However in such cases should always take in writing from the patient if she is a major / parent or guardian if patient is minor the following details:
- That the doctor has explained that the incidence narrated amounts to a punishable office.
- That the patient/ parent or guardian can complain to the police about it.
- That she/ parent or guardian has requested the doctor to keep this secret to himself and not to inform the police about tit as they do not wish to file the police complaint in this matter.
- In such cases, we are duty bound to keep complete detail records of such cases (ref: Guidelines from CEHAT), including all the investigation reports, the samples taken if any and the clinical records under lock and key. In case, at a future date, if any authority (either police or judicial) asks for these documents then we are duty bound to handover the copies of these documents to the concerned authority and support the criminal investigation process. At the time of handing over such reports even to the police or judicial authority, the doctor should hand it over in a sealed envelope labeled as “PRIVILEGED COMMUNICATION”. All the enclosed pages should be numbered and attested. The number of total pages be mentioned and a due receipt to be obtained.
- Section 39CrPC:
Public to give information of certain offences.-
- Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code, (45 of 1860) namely:
- sections 121 to 126, both inclusive, and section 130 (that is to say, offences against the State specified in Chapter VI of the said Code);
- sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquility specified in Chapter VIII of the said Code);
- sections 161 to 165A, both inclusive (that is to say, offences relating to illegal gratification);
- sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of food and drugs, etc.);
- sections 302, 303 and 304 (that is to say, offences affecting life);
- section 382 (that is to say, offence of theft after preparation made for causing death, hurt or restraint in order to the committing of the theft);
- sections 392 to 399, both inclusive, and section 402 (that is to say, offences of robbery and dacoity);
- Section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.);
- sections 431 to 439, both inclusive (that is to say, offences of mischief against property);
- sections 449 and 450 (that is to say, offence of house-trespass);
- sections 456 to 460, both inclusive (that is to say, offences of lurking housetrespass);and
- sections 489A to 489E, both inclusive (that is to say, offences relating to currency notes and bank notes),
shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention.
- For the purposes of this section, the term “offence” includes any act committed at any place out of India, which would constitute an offence if committed in India.
(C) However, we also need to know the opinion of some experts who feel that doctors are still responsible under section 202 IPC, to inform to the police. The lawyers may use this to implicate the doctors. The section 202 IPC reads as follows
Section 202 IPC
Intentional omission to give information of offence by person bound to inform.
Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
- The arguments against this stand is as follows
- The words “which he is legally bound to give” plays a major role in interpreting this section. Neither section 39 CrPC or any other section puts this legal binding on the doctors to inform. And hence, the scope of Sec. 202 IPC, cannot be extended to the current issue under consideration.
- If information about sexual abuse is given to police against the will and wish of the victim or her legal guardian or parents then it is not only against the ethical consideration of confidentiality but also amount to breach of article 21 of our constitution.
Comments and disclaimer
- The above narration is as the law exists today.
- The sections of IPC are interpreted by different legal luminaries and judiciary in different ways.
- So, the above narration is also open for discussion and debate. The situation in some cases might not be as straight forward as the question suggests. So, the course of action to be taken may differ in different cases.
- If anyone has different views on these sections of IPC and CrPC, please feel free to share your views by e mail to the webmaster or me, so that the picture gets clearer.
- One suggestion which was shared by a delegate during the 3rd national Medicolegal Conference was that if the victim or her parents/guardian doesnot want us to inform the police about the case in particular, can we give a restricted information to the police that we are at that point of time treating a victim of sexual abuse, who wishes to maintain the secrecy regarding her name and other personal details?
- This point would need further debate and opinions
- While dealing with such cases, utmost respect should always be given to the law of the land by following the legal guidelines. However, at the same time, patient’s rights should be honored. Doctors should not forget their ethical duty of maintaining “professional secrecy”.
- Thus, the Legal and Ethical issues should be weighed in the perspective of each and every case.