Karnataka High Court
Sri Srinivas P M vs State Of Karnataka on 24 September, 2013
1
--
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR. JUSTICE K.N. KESHAVANARAYANA
CRIMINAL PETITION NO. 5251/2013
BETWEEN
SRI SRINIVAS P.M.,
AGED ABOUT 29 YEARS,
SON OF MARIYAPPA,
RESIDENT OF KOTTOLLI VILLAGE,
BOIKERI POST, VIRAJPET TALUK,
KODAGU DISTRICT-571 218
... PETITIONER
(BY SRI GIRIDHAR H., ADVOCATE)
AND:
STATE OF KARNATAKA,
REPT. BY MAHILA POLICE STATION,
MYSORE-571 001
REPRESENTED BY THE PUBLIC PROSECUTOR
... RESPONDENT
(BY SRI B. RAJASUBRAMANYA BHAT, HCGP)
***
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 CR.P.C PRAYING TO SET ASIDE THE
ORDER DATED 25.03.2013 PASSED BY THE II ADDL.
S.J., MYSORE IN S.C.NO.91/12 CONSEQUENTLY
DISMISS THE APPLICATION FILED BY THE
RESPONDENT U/S.53 OF CODE OF CRIMINAL
PROCEDURE.
2
--
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Petitioner is facing trial for the charge punishable under Section 376 of IPC on the allegations that he committed forcible sexual act on the prosecutrix against her will and without her consent, as a result of such forcible act she became pregnant and later delivered a child.
2. The trial is pending before the II Additional Session Judge, Mysore in SC 91/2012. During trial, the prosecution filed an application under Section 53 of Cr.P.C. seeking permission for further investigation and to collect the blood samples of the accused for the purpose of DNA test to ascertain the paternity of the child born to CW1-prosecutrix. The said application was opposed by the petitioner on various grounds including the ground that allowing of such application would be against the immunity conferred under 3
--
Article 20(3) of the Constitution of India and since the collection of blood samples is nothing but compelling him to give evidence against himself would be against the right of privacy.
3. The learned Sessions Judge, after hearing the prosecution as well as the accused, by the order impugned in this petition, allowed the said application and permitted the Investigating Officer to conduct further investigation by collecting blood samples of the accused, the complainant and her daughter through registered Medical Practitioner and to send the same to the Forensic Science Laboratory to ascertain the biological father of the child born to the complainant. Aggrieved by the same, the petitioner has presented this petition.
4. In the petition, it is urged that, the order impugned is highly perverse and it is opposed to the established and well settled principles of law reported in various decisions of the Supreme Court and other Courts and it violates the fundamental rights of the 4
--
petitioner; that the Court could not have directed for collection of the blood samples of the petitioner for ascertainment of biological father of the child born to complainant which is not a relevant factor for deciding the issue involved in the case, therefore, the order impugned is bad in law.
5. I have heard the learned counsel for the petitioner and perused the order impugned and other documents.
6. Learned counsel for the petitioner placed reliance on the decision of the APEX COURT IN BHABANI PRASAD JENA V. CONVENOR SECRETARY, ORISSA STATE COMMISSION FOR WOMEN & ANOTHER reported in AIR 2010 SC 2851 and the Judgment of CALCUTTA HIGH COURT reported in 2008 CRI. L.J. 1183 in the case of SABUR HOSSAIN BIWAS V. STATE OF WEST BENGAL & OTHERS.
7. I have bestowed my consideration to the submissions made by the learned counsel for the petitioner and also perused the decisions relied upon 5
--
by him. The Apex Court, in BHABANI PRASAD JENA'S case referred to supra, after referring to the earlier decisions on the point, summarised the legal position to the following effect:
"(1) that courts in India cannot order blood test as a matter of course;
(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.
(4) The court must carefully examine as to what would be the consequences of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis."
8. It is necessary to note that, all these principals have been laid down in relation to the 6
--
matrimonial dispute between the husband and wife, where the chastity of married woman is involved and presumption as to the legitimacy of the child could be raised as provided by the Section 112 of the Evidence Act. Whereas, in a case involving the charge for the offence under Section 376 IPC, there is no presumption as to the marriage nor as to the legitimacy of the child. Question of casting the prosecutrix either as unchaste or the child born out of such alleged forcible act as bastard, does not arise in a prosecution for offence punishable under Section 376 IPC. The necessity of such test may be relevant for finding out as to whether the allegation on the part of the victim that she had been subjected to forcible sexual act could be accepted or could be supported by other evidence. In this behalf, provisions of Section 53(A) of Cr.P.C. as amended by Act No.25 of 2005 could be profitably referred to. As per Section 53(A) of Cr.P.C. whenever a person is arrested on a charge of committing an offence of rape or an attempt to 7
--
commit rape and if the Investigating Officer believes that there are reasonable ground that the examination of such persons will afford evidence as to the commission of such offence, the Investigating Officer is empowered to take such arrested person to a registered Medical Practitioner and to subject him for such medical examination. According to Sub Section (2) of Section 53(A), a registered Medical Practitioner can conduct such examination, prepare a report of his examination giving particulars as enumerated under clause (i) to (v) therein. According to clause (iv), such reports should also disclose the description of the materials taken from the person of the accused for DNA profiling. Thus reading of Section 53(A) of Cr.P.C. indicates that, DNA profile could be resorted to if the Investigating Officer has reasonable ground to believe that such examination on the accused person will afford evidence as to the commission of such offence. In the case on hand, the accusation made against petitioner as noticed supra 8
--
is that, he committed forcible sexual act on the victim and that resulted in her pregnancy and later she delivered the child. Therefore, the question involved in this prosecution is, as to whether, the accused has committed the aforesaid act. The DNA profile of the petitioner would, having regard to the facts and circumstances of the case, may afford evidence as to the commission of such offence. In these circumstances, in my considered opinion, the trial Court is justified in permitting the Investigating Officer to collect the blood samples of the petitioner/accused and subject the same to the necessary examination. The observation of the learned Sessions Judge that, this test is for the purpose of ascertaining the biological father of the child born to the complainant is not appropriate having regard to the nature of the case of prosecution against the petitioner. As noticed supra in a case of this nature, subjecting the accused for DNA profile is not for the purpose of finding or ascertaining the 9
--
paternity of the child delivered by the prosecutrix, but on the other hand, the question is whether it affords the credibility to the accusation made against the accused person. In this circumstance, I find no good ground to entertain this petition.
Accordingly, the petition is dismissed. It is made clear that, the observations made during the course of this order are all for the purpose of disposal of this petition and it shall not in any way influence the learned trial Judge at the time of disposal of the matter.
Sd/-
JUDGE Sbs*