Courts Should Not Insist On Conducting 'Potency Tests' On Accused Persons In A Routine Manner: Madras High Court

The bench of Justice Anand Venkatesh and Justice Sunder Mohan, which was constituted to monitor the implementation of provisions of the Protection of Children from Sexual Offences (POCSO) Act and the Juvenile Justice Act on the judicial side, made the observations after being informed that while there was awareness against Two-Finger tests in the state, instances of male potency tests still continued.

It may be noted that in its previous orders, the bench had observed that the male potency test, which had been practiced for a long time without any valid reasons, should be stopped forthwith and called for strict compliance with the standard operating procedure issued by the medical department. The court noted that unless the accused takes a defence in this regard, male potency test should not be ordered routinely.

However, during the hearing, the court was informed that the police continued to send the accused persons for potency tests in a routine fashion. The court was also informed that the subordinate courts are insisting on potency tests for taking the cases on file in cases involving POCSO offenses. This prompted the court to direct the courts in the state and the police department to strictly comply with the court's earlier orders and the SOP issued by the medical department. The court also directed the order to be placed before the Juvenile Justice Board to ensure that the SOP is complied with

“We also make it clear that the special courts across the state of Tamil Nadu should not insist on conducting potency tests on the accused person. For this purpose, the order passed by the court on 14.08.2023, and 15.07.2024, along with the present order shall be sent to all the Principal District and Sessions Court in Tamil Nadu and the same shall be placed before the special court dealing with POCSO cases and also the courts dealing with other sexual offenses against women and they shall strictly comply with the directions/observations of the court,” the court said.

Romantic Relationship Of Minors And Offences Under the Prohibition of Child Marriage Act

The bench also noted that despite previous orders and a circular issued by the DGP, minor boys who were involved in romantic relationships with minor girls were mechanically arrested and produced before the Juvenile Justice Boards, which then sent the minor boys to the observation homes. The court noted that such procedure ran counter to the earlier circulars and the orders of the court and thus directed the DGP to re-familiarise the police officials regarding the circular, making them aware of the procedure to be followed in such cases.

The court also directed the Juvenile Justice Boards to not send young boys to the observation homes in a routine manner and ensure compliance with the orders of the court. The court added that any non-compliance to its orders would be viewed seriously.

Another issue that the court highlighted was of FIRs being registered against the minor boys under the Prohibition of Child Marriage Act. The court highlighted that an offense under the Act would be attracted only where an adult male marries a child and not where the male was a minor boy. Thus, the court directed the DGP to issue appropriate circulars in this regard.

Case Title: Kajendran J v. Superintendent of Police and Others

Citation: 2025 LiveLaw (Mad) 53