Andhra HC (Pre-Telangana)
Kodi Satish Naidu vs The State Of A.P.Public Prosecutor High ... on 13 November, 2014
Author: M.Seetharama Murti
Bench: M.Seetharama Murti
THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI Criminal Petition No.7049 of 2012 13-11-2014 Kodi Satish Naidu The State of A.P.Public Prosecutor High Court of A.P., Hyderabad and another...Respondents Counsel for the Petitioner:Sri Harinath Reddy Soma Counsel for Respondent No.1:STATE Counsel for Respondent NMo.2: Sri C.Damodar Reddy <Gist: >Head Note: ? (2010) 7 SCC 263 AIR 1979 SC 1791 ORDER:
The sole accused in Crime No.122 of 2011 of Bommuru Police Station filed this criminal petition under Section 482 of the Code of Criminal Procedure, 1973 (the Cr.P.C for short) assailing the orders dated 30.07.2012 of the learned Sessions Judge, Rajahmundry of East Godavari District whereby the learned Sessions Judge has confirmed the orders dated 14.05.2012 of the learned VII Additional Judicial Magistrate of First Class, Rajahmundry in Crl.MP.No.1492 of 2012.
2. The facts leading to the filing of the present criminal petition may be stated, in brief, as follows: - A written report was given by the 2nd respondent/1st informant against the petitioner/accused and on such report the present case in Crime No.122 of 2011 was registered by the Station House Officer, Bommur Police Station for the offences punishable under Sections 376, 417 and 506 of the Indian Penal Code (the IPC for short) and also Section 3(1)(x)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. The broad allegations in the said report of the 2nd respondent/informant are to the effect that she had developed acquaintance with the accused and that the accused promised to marry her and had continued physical contacts with her without her consent having promised that he would marry her and that subsequently she had become pregnant and that on that the accused demanded her to have abortion and that when she did not agree he started avoiding her and abused her in filthy language using her caste and further threatened her with dire consequences and thus deceived and cheated her. During the course of investigation, the accused who is an advocate had obtained anticipatory bail and had subsequently surrendered before the police as per the directions of this court and was later enlarged on bail. While so, the Deputy Superintendent of Police, East Zone, Rajahmundry had filed a memo before the learned VII Additional Judicial Magistrate of First Class, Rajahmundry seeking a direction to the accused to appear before the Director, Forensic Science Laboratory, Hyderabad for the purpose of giving blood sample for conducting DNA finger print test/DNA profiling to prove the guilt of the accused. The said memo was registered as Crl.MP.No.1492 of 2012. After hearing the learned Additional Public Prosecutor and the learned advocate for the accused, the learned Magistrate by the order 14.05.2012 had directed the Deputy Superintendent of Police, East Zone, Rajahmundry to take steps for securing the presence of the de facto complainant along with her child and to serve summons upon the accused to facilitate their appearance before the Director, Forensic Science Laboratory on 18.06.2012. The learned Session Judge had confirmed the said orders when the said order was challenged in Crl.R.P.No.32 of 2012 before him. Therefore, the accused is before this court.
3. I have heard the submissions of the learned counsel for the petitioner and the learned Additional Public Prosecutor representing the 1st respondent/State and perused the material record. No submissions are made on behalf of the 2nd respondent.
4. The points for determination are
(i) Whether Article 20 (3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his blood or other sample stated in section 53 of the CrPC during the course of investigation into an offence?
(ii) Assuming that there is no violation of Article 20(3) of the Constitution of India, whether the order of the learned Magistrate as confirmed by the learned Sessions Judge directing to serve summons upon the accused for the purpose of facilitating his appearance before the Director, Forensic Science Laboratory, Hyderabad and authorising for securing his blood sample for the purpose of DNA finger print test/DNA profiling is liable to be set aside in the facts and circumstances of the case?
5. POINTS:
5. (a) The facts of the case are already stated supra, in detail. The main contention of the learned counsel for the petitioner/accused is that the Courts below have not considered all the objections raised by the petitioner/accused and that on the date, the orders were passed by the court below, the accused is not in police custody or judicial custody and that he was already enlarged on bail and that the orders are contrary to the facts and the law. He would further contend that Section 53 of the CrPC has no application and that there is no necessity to conduct DNA profiling test in the course of investigation for the offences punishable under Sections 417 or 376 IPC and that the question of paternity of the child cannot be declared in a criminal proceeding and that the relief sought would amount to testimonial compulsion and violates the constitutional rights guaranteed to the petitioner/accused under Articles 20 and 21 of the Constitution of India.
5. (b) The learned Additional Public Prosecutor would submit that the order of the learned Magistrate was confirmed in the revision filed under Section 397 and 399 of the CrPC and that a second revision before this court is not maintainable in view of the provision under Section 397(3) of the CrPC and that the present criminal petition which is filed under Section 482 of CrPC does not satisfy the legal and factual requirements for interfering with the well considered orders of the courts below and that in view of the serious allegations made by the victim against the accused, the matching of the DNA samples and conduct of DNA profiling test is very important and essential for linking the accused to specific criminal acts alleged by the 2nd respondent in her report and that DNA profiling test is now specifically included by way of explanation to section 53 of the CrPC and that therefore, the examination of accused by a medical practitioner at the request of the police officer now includes the examination of blood etcetera in case of sexual offences by use of modern and scientific techniques including DNA profiling whenever such tests are necessary in an appropriate case, particularly in a case of the present nature.
5. (c) The first contention of the accused is that a direction to him to submit to DNA profiling test would amount to testimonial compulsion and that the provisions of Articles 20 and 21 of the Constitution of India afford protection to him and that if he is directed to undergo the DNA profiling test, the protection guaranteed to him by law would be lost. In support of the said contention, reliance was placed on the decision of the Honble Supreme Court in Selvi and others v. State of Karnataka . I have carefully gone through the cited decision. In the cited case, the legality of the three scientific tests namely (i) Narcoanalysis, (ii) Polygraph test (lie-detector test) and (iii) BEAP (Brain Electrical Activation Profile) test were challenged inter alia on the grounds that a direction to the accused to undergo those tests violate the rights guaranteed to the accused under Article 20 and 21 of the Constitution of India and under Section 161(2) of CrPC. It is undisputed that for conducting Narcoanalysis test intravenous injection of Sodium Pentothal will be given to the subject of the test and due to which the subject of the test goes into hypnotic trance. In Polygraph test, some instruments like cardiographs, pneumographs, cardio-cuffs, sensitive electrodes etcetera would be attached to the subjects body before measuring physiological responses. In BEAP test, electrical waves emitted from the subjects brain would be recorded by attaching electrodes to his scalp. Therefore, considering the nature of the three tests, the Honble Supreme Court having considered very extensively the entire technical processes involved in the conduct of the said techniques/tests and the legal position had held as follows: -
The National Human Rights Commission had published Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused in 2000. These Guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the narcoanalysis technique and the Brain Electrical Activation Profile test. The text of these Guidelines has been reproduced below:
(i) No lie detector tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
(ii) If the accused volunteers for a lie detector test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
(iii) The consent should be recorded before a Judicial Magistrate.
(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a confessional statement to the Magistrate but will have the status of a statement made to the police.
(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
(vii) The actual recording of the lie detector test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
(viii) A full medical and factual narration of the manner of the information received must be taken on record.
In the conclusions in paragraphs 262, 263 and 264 of the cited decision, findings were recorded only in regard to the impugned three techniques referred to above. Coming to the case on hand, for DNA profiling, only furnishing a blood sample or such other samples like hair sample, finger nail clipping of the subject of the test would be necessary and the body of the subject will not be subjected to any scientific processes or techniques as required in the other three scientific techniques namely Narcoanalysis, Polygraph test (lie-detector test) and BEAP (Brain Electrical Activation Profile) and therefore, it cannot be said that directing the petitioner to undergo DNA profiling subjects him to any involuntary process violating the privacy and further compels him to be a witness against himself. Therefore, the decision is not helpful to the accused. In this cited decision at paragraphs 220 and 221, the Honble Supreme Court so far as DNA profiling technique has held as under:
220. In the present case, written submissions made on behalf of the respondents have tried to liken the compulsory administration of the impugned techniques with the DNA profiling technique. In the light of this attempted analogy, we must stress that the DNA profiling technique has been expressly included among the various forms of medical examination in the amended Explanation to Section 53 CrPC. It must also be clarified that a DNA profile is different from a DNA sample which can be obtained from bodily substances. A DNA profile is a record created on the basis of DNA samples made available to the forensic experts. Creating and maintaining DNA profiles of offenders and suspects are useful practices since newly obtained DNA samples can be readily matched with existing profiles that are already in the possession of law-enforcement agencies. The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts.
221. It may also be recalled that as per the majority decision in Kathi Kalu Oghad [AIR 1961 SC 1808] the use of material samples such as fingerprints for the purpose of comparison and identification does not amount to a testimonial act for the purpose of Article 20(3). Hence, the taking and retention of DNA samples which are in the nature of physical evidence does not face constitutional hurdles in the Indian context. However, if the DNA profiling technique is further developed and used for testimonial purposes, then such uses in the future could face challenges in the judicial domain.
Now it is necessary to refer to Section 53 of the Code of Criminal Procedure and its explanation, which read under:
53. Examination of accused by medical practitioner at the request of police officer:- (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of Sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.
(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.
[Explanation:- In this section and in Section 53A and 54.
(a) examination shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thins necessary in a particular case;
(b) registered medical practitioner means a medical practitioner who possesses any medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register] Section 53 of the CrPC pertains to examination of the accused by a medical practitioner at the request of a police officer. Section 53 A refers to examination of person accused of rape by medical practitioner and Section 54 refers to examination of an arrested person by a medical officer. Section 53, which is significant, is referred to supra. This section says that if a police officer feels that there are reasonable grounds for believing that an examination of the person of the accused will afford evidence as to commission of the offence, he may request a registered medical practitioner to make such examination of his person as is reasonably necessary. For such examination, it is permissible to use such force as may reasonably be necessary. Explanation
(a) to Section 53 says what examination is. The examination shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case. This explanation was substituted by the Code of Criminal Procedure (Amendment) Act, 2005. The Honble Supreme Court in Selvi case (1 supra) has accepted the submission that while bodily substances such as blood, semen, sputum, sweat, hair and finger nail clippings can be readily characterized as physical evidence, the same cannot be said for the techniques in question in that cited case namely Narcoanalysis, Polygraph test (lie-detector test) and BEAP (Brain Electrical Activation Profile) and had pointed out the distinction between physical evidence and testimonial acts. The Honble Supreme Court had approved that the substances mentioned in Explanation (a) to Section 53 are examples of physical evidence. Therefore, in view of the explanation and also considering the fact that the offences the accused is alleged to have committed are punishable under Sections 376 and 417 of the IPC, it is obvious that there is no legal bar for directing the examination of the accused by a medical practitioner at the request of the police officer particularly for the purpose of DNA profiling. Coming to the undisputed contention that the accused is not in custody and he is on bail, what is to be noted is that in the decision in Ramlal Narang v. State (Delhi Administration) the Honble Supreme Court held as under: -
Though Section 53 Cr.P.C., refers only to examination of the accused by medical practitioner at the request of a police officer, there is no reason why the Court should not have a wider power for the purpose of doing justice in criminal cases by issuing a direction to the police officer to collect blood sample from the accused and conduct DNA test for the purpose of further investigation under Section 173(8) of the Code.
The above ratio was referred to in the order impugned also. In the case on hand, the police officer had sought permission of the learned Magistrate for an appropriate direction. Therefore, the contention of the accused that the request of the police officer cannot be considered when he is not in custody is devoid of merit.
6. Viewed thus, this Court finds that Article 20 (3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, does not extend to protecting such an accused from being compelled to give his sample of blood etcetera for the purposes mentioned in Section 53 of the CrPC during the course of investigation into an offence. Therefore, I find no infirmity in the order impugned passed by the learned Sessions Judge confirming the order passed by learned Additional Judicial Magistrate of First Class, Rajahmundry.
7. In the result, the criminal petition is dismissed. Consequently, miscellaneous petitions, if any, pending, shall stand closed. ____________________ M.SEETHARAMA MURTI, J 13th November 2014