Calcutta High Court (Appellete Side)
Gopal Ghoshal vs The State Of West Bengal on 13 February, 2018
Author: Debi Prosad Dey
Bench: Debi Prosad Dey
IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Debi Prosad Dey CRR No. 4206 of 2017 Gopal Ghoshal...................Petitioner/Appellant Versus The State of West Bengal For the Appellant/ : Mr. Asismes Goswami, Petitioner : Ms. Paulomi Banerjee For the State :Mr. Saswata Gopal Mukherjee, Ld. P.P. :Mr. Ayan Basu Heard on : 02.01.2018,24.01.2018,09.02.2018 Judgment on : 13.02.2018 Debi Prosad Dey, J. :-
Challenge in this revisional application is the order dated 06.12.2017 passed by learned Additional District and Sessions Judge, Baruipur, District‐ South 24 Parganas in session trial no. 3(9)17 arising from Kultali Police Station case no. 240 dated 07.04.2017 under Section 376/417 of the Indian Penal Code read with Section 6 of Protection of Children from Sexual Offences Act, 2012 whereby and whereunder learned trial Judge has allowed the prayer for adjournment filed by the petitioner.
The petitioner has been accused of committing rape of a minor girl, who had given birth to a child recently due to her pregnancy. At the outset the present petitioner being accused in that case prayed for DNA test but the said prayer was refused on the ground that the victim was pregnant at the material point of time. However, in the meantime, the victim gave birth to a child. Revisional application before this Court being CRR no.3436 of 2017 was filed and a co‐ordinate bench of this Court gave liberty to the petitioner to renew his prayer before the trial Court. The petitioner again filed an application for DNA profiling of the victim, her child and of the petitioner and the said application was allowed by learned trial Judge relying on Section 53A of the Code of Criminal Procedure. Learned Advocate appearing on behalf of the petitioner contended that the prosecution may be directed to serve a copy of the result of such DNA profiling. It is, further, submitted that learned trial Court has been proceeding with the trial without the result of such DNA profiling which would cause irreparable injury to the cause of accused/the petitioner.
Learned Advocate appearing on behalf of the State contended that learned trial Judge has erroneously relied on Section 53A of the Code of Criminal Procedure since no prayer was made on behalf of the prosecution for DNA profiling of the petitioner, who is an accused of a case under Section 376(2)(1)/417 of the Indian Penal Code read with Section 6 of POSCO Act. It is, further, submitted that learned trial Judge has erroneously relied on Section 53A of the Code of Criminal Procedure and such order of DNA ought not to have been passed by learned trial Judge. Learned Advocate for the State has however handed over a report from the officer in charge of Kultali Police Station where from it transpires that the DNA profiling of the petitioner as well as the victim has not yet been undertaken by the Superintendent of M.R. Bangur Hospital, Calcutta.
It is, therefore, crystal clear from the facts of the case that the petitioner has been charged in a case under Section 376 of the Indian Penal Code read with Section 6 of POSCO Act. The paternity of the child of the victim is not a fact in issue in the case under reference. The prosecution will have to prove independently the charges framed against the petitioner without having any DNA test result to that effect as to if the accused is guilty for the offence under Section 376 of Indian Penal Code as well as 6 of POSCO Act. The result of DNA profiling is not an eminent need and the Court can come to a conclusion about the case under reference even without such DNA test. On the contrary, the petitioner being accused in a case of rape, cannot be permitted to procure evidence at this stage.
The Supreme Court sketched the approach for Courts while directing DNA test in a decision reported in AIR 2010 SC 2854(Bhabani Prasad Jena Vs. Convener Secretary, Orissa State Commission for Women and Another). The Apex Court observed as follows:‐ In a matter where paternity of a child is in issue before the Court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the Court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the Court to reach the truth, the Court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed. DNA in a matter relating to paternity of a child should not be directed by the Court as a matter of course or in a routine manner, whenever such a request is made. The Court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of 'eminent need' whether it is not possible for the Court to reach the truth without use of such test."
(underline by me) It is, therefore, apparent from the aforesaid observation of the Supreme Court that learned trial Court could not exercise its discretion balancing the interest of the parties and there was absolutely no eminent need to have the DNA report in order to come to a definite conclusion. The petitioner shall be presumed to be innocent unless it is proved by the prosecution that he is guilty of such offence till the completion of trial. The right of silence is always with the petitioner till the end of the trial and the petitioner in no way is bound to disprove the case of prosecution. This is the principle of law adopted in an adversial system of justice. In that view of this case and having regard to the provision of 482 of the Code of Criminal Procedure I find that the order passed by learned trial Court itself is bad in law. Moreover, the prayer in the criminal revisional application is for setting aside the order dated 06.12.2017 passed by learned trial Judge. On scrutiny of the order dated 06.12.2017, I do not find any illegality in such order. Accordingly revisional application being devoid of merit is dismissed. Learned trial Court is requested to dispose of the case as expeditiously as possible keeping in view the mandate of law as stipulated under POSCO Act.
Let a copy of this order be forwarded to the trial Court forth with. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible (Debi Prosad Dey, J.)