Madhya Pradesh High Court
Bablu @ Purshottam Sharma vs The State Of Madhya Pradesh on 20 September, 2019
Author: Vishnu Pratap Singh Chauhan
Bench: Vishnu Pratap Singh Chauhan
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : HON'BLE SHRI JUSTICE V.P.S.CHAUHAN
Cr.R.No.4303/2019
Bablu alias Purshottam Sharma
Vs.
State of M.P.
Shri Parag S. Chaturvedi, learned counsel for
the applicant.
Shri Shashank Upadhyay, learned Govt. Advocate
for the respondent/State.
O R D E R
(20/09/2019) The applicant has filed this revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 being aggrieved by the order dated 09/08/2019 passed in Sessions Trial No.233/2019 by 15th Additional Sessions Judge, Jabalpur.
2. The facts giving rise to this petition, in short, are that prosecutrix lodged FIR in Police Station, Adhartal, Jabalpur registered as Crime No.210/2019 for the offence punishable under Sections 376, 450, 506 of IPC 2 against the applicant. After investigation, charge sheet has been filed and the trial is going on as Sessions Trial No.233/2019 against the applicant. During prosecution evidence, on behalf of Police Station, Adhartal, prosecution submitted an application for providing permission of receiving blood sample of the applicant for conducting DNA test which is important for fair trial because in the vaginal slide and semen slide of the prosecutrix human spermatozoa was found, therefore, to ascertain spermatozoa belongs to the accused/applicant, it is necessary to conduct DNA test for which blood sample of the applicant is required to be collected. Learned trial Court after hearing both the parties, allowed the application and applicant is directed to provide blood sample in hospital before the concerned doctor.
3. Being aggrieved by that order, the applicant has filed this criminal revision on the ground that learned trial Court has committed grave error by allowing the 3 application and permitting the prosecution for conducting the DNA test of the applicant after completion of the investigation and filing of charge sheet before the Competent Court. The Court totally ignored the provisions of the Code of Criminal Procedure and committed error of law. Charge sheet was filed on 03/04/2019 and after spending 14 months, trial Court allowed the application filed by the prosecution. There is no provision to conduct further investigation after submitting charge sheet in the trial Court, therefore, prays to set aside the impugned order dated 09/08/2019.
4. On the other hand, learned Govt. Advocate submits that some additional investigation is required. The case has not been concluded till now, it is pending. Spermatozoa was found in the vaginal slide of the prosecutrix. It is necessary to conduct DNA test to ascertain whether spermatozoa belongs to the applicant. Additional evidence can be collected during pendency 4 of the trial. As per Section 173(8) of Cr.P.C., Investigating Officer can submit additional evidence which is directly relevant with the pending case, therefore, prays for dismissal of the criminal revision.
5. Having heard learned counsel for the parties and perused the provisions of Sections 173(2) and 173(8) of Cr.P.C. which are very much relevant, thus reproduce as under :
"(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating--
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;5
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170;
[(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under [sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB] or section 376E of the Indian Penal Code (45 of 1860)].
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports 6 as they apply in relation to a report forwarded under sub-section (2)."
6. After perusal of the provisions of Sections 173(2) and 173(8) of Cr.P.C., the Investigating Officer as soon as complete the investigation, submit a Police report in the concerned Court under Section 173(2) of Cr.P.C. and sub-section (8) of Section 173 of Cr.P.C. provides that nothing shall be deemed to preclude further investigation in respect of an offence after submission of the report under Sub-section (2) of Section 173 of Cr.P.C. to the Magistrate. This section clearly provides that if there is any need of further investigation and the Investigating Officer obtains a further evidence orally and documentary, he will collect that evidence and prepared a report thereafter forward the report as envisaged under sub-section (2) of Section 173 of Cr.P.C. A bare perusal of above both the sections, this Court finds that if important evidence is needed in 7 connection with the same offence in pending trial, the Investigating Officer collected the evidence and can submit a report thereafter.
7. The allegation against the applicant is that the applicant got entered into the house of prosecutrix and forcibly committed rape upon her. After lodging report, doctor examined the prosecutrix and prepared a slide of vaginal smear and that slide has been examined by the forensic science laboratory. Human spermatozoa found in the slide and now it is required to be examined whether these spermatozoa belong to the applicant or not, therefore, DNA test is necessary for that. In this respect, Police Station, Adhartal if requires blood sample of the applicant and they file an application before the trial Court seeking permission to take blood sample of the applicant, it is no where prohibited in any law that trial Court cannot grant permission for that if the trial is pending before the trial Court. 8
8. On the basis of forgoing legal proposition, this Court finds that the trial Court has not committed any illegality in providing permission by passing the impugned order dated 09/08/2019.
9. Accordingly, this criminal revision is devoid of substance and the same is hereby dismissed without any order as to cost.
(Vishnu Pratap Singh Chauhan) Judge ts Digitally signed by TULSA SINGH Date: 2019.09.23 10:22:05 +05'30'