Madras High Court
Muthukutti vs The Deputy Director on 2 November, 2011
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02/11/2011
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)NO.653 of 2011
and
M.P.(MD)No.1 of 2011
Muthukutti .. Petitioner
Vs.
1.The Deputy Director,
D.N.A. Section,
Forensic Science Department,
Mylapore, Chennai-4.
2.State rep by
Sub Inspector of Police,
All Women Police Station,
Valliyoor,
Tirunelveli District.
3.Nagavalli
(R-3 impleaded vide order
dt.02.11.2011 in M.P.(MD)No.2 of 2011) .. Respondents
This writ petition has been preferred under Article 226 of the
Constitution of India praying for the issue of a writ of mandamus to direct the
first respondent to issue the FTA Card forthwith to conduct DNA test for the
petitioner, defacto complainant, and her child in Crime No.1 of 2010 on the file
of the second respondent within the stipulated time frame fixed by this Court
and subsequently to direct the second respondent to take necessary steps to
conduct the DNA test in the event of the receipt of the FTA Card in accordance
with law within a reasonable period.
!For Petitioner ... Mr.R.Pon Karthikeyan
^For Respondents ... Mr.M.Govindan, Spl.G.P. for RR1 and 2
- - - -
:ORDER
The petitioner in this writ petition seeks for a direction to the first respondent Deputy Director, D.N.A. Section, Forensic Science Department, Chennai, to issue the FTA Card forthwith to conduct DNA Test for the petitioner, defacto complainant and her child in Crime No.1 of 2010 on the file of the second respondent Sub Inspector of Police, All Women Police Station, Valliyur, Tirunelveli District within the stipulated time and subsequently to direct the second respondent to take necessary steps to conduct the DNA test on receipt of the FTA Card in accordance with law.
2.When this writ petition came up on 19.1.2011, this court directed the petitioner to implead the defacto complainant. Accordingly, the petitioner has filed an application in M.P.(MD)No.2 of 2011, which was ordered by this court today (02.11.2011). In the writ petition, notice was ordered to the parties.
3.The facts leading to filing of the case are as follows:
The impleaded third respondent Nagavalli, daughter of Annadurai has filed a criminal complaint against the petitioner in the All Women Police Station, Valliyur, i.e. the second respondent. The complaint was that she was a resident of Nadiparai Rosmiapuram and was studying in the Government Higher Secondary School. Her parents were doing cooli work. The petitioner was living in the house opposite to her house and used to come to her house everyday. Nine months before the date of the complaint, i.e. 22.1.2010, when the third respondent was staying alone in her house, the petitioner came and told her that he was willing to marry her and that he will only marry her. He also made a promise by touching her head. Though she was never inclined, he forced and raped her. Subsequently also, he made such promising words and frequently raped her without her consent. She did not tell her parents believing his words. Subsequently, she became pregnant. When her mother sternly questioned her about her pregnancy, she had to reveal the truth. But, the petitioner had cheated her. Therefore, she requested for an action to be initiated against him. On the basis of her complaint, an FIR was also registered in Crime No.1 of 2010 on 22.1.2010 by the second respondent Station House Officer. The offence disclosed as per the FIR revealed that it will attract Sections 417 and 376 of IPC. The FIR was forwarded to the jurisdictional Magistrate also. The petitioner was arrested and remanded to judicial custody. When he filed a petition for bail, this court had granted bail in Criminal O.P.(MD)No.1853 of 2010 vide order dated 22.2.2010.
4.Subsequently, he had also filed an another Crl.O.P.(MD)No.8457 of 2010 under Section 482 Cr.P.C. seeking for a direction to the second respondent police to conduct DNA test on the petitioner, the third respondent and her child in order to help the investigation in Crime No.1 of 2010. This court recorded that a report was called for from the concerned Magistrate and it was found that already a DNA test had been ordered and both parties were willing for the DNA test. A letter has been addressed to the first respondent. With this recording, the criminal original petition was disposed of on 27.08.2010.
5.The petitioner thereafter filed an application under Section 7 of the RTI Act seeking for information from the first respondent office claiming information making 11 queries. Pursuant to the letter sent by him, information sought for was furnished to him by the Deputy Director of DNA Section on 18.10.2010. The petitioner was informed that a request letter was received from the Judicial Magistrate, Valliyur and FTA card will be issued only after three months which will be sent to the Magistrate. The petitioner upon getting the information has filed the present writ petition seeking for a direction for the issuance of the FTA Card.
6.It is not clear as to how such directions can be issued by this court when the criminal investigation by the second respondent is still pending under the over all supervision of the Judicial Magistrate, Valliyur. In the present case, the charge is not only the offence of making a woman pregnant by false inducement and false promise, but also the offence also related to a complaint of rape under Section 376 IPC. Even before the criminal investigation is over and a charge sheet is filed, the petitioner cannot move different courts and get all kinds of orders, thereby derailing a proper investigation or divert the attention of the investigating agency.
7.It is the second round of litigation by the petitioner. Already the petitioner has moved the criminal side of this Court under Section 482 of Cr.P.C for a similar relief. In the present writ petition, except there was a slight variation in the prayer, there was no change in the substances. The attempt by the petitioner was some how to establish that the defacto complainant's parents were attempting to force him to marry the victim girl, i.e., defacto complainant. His contention was that he had not committed the offence as alleged in the FIR. The writ petition is not maintainable, especially when the investigation is in progress and the learned Judicial Magistrate is fully seized of the matter relating to the request made by the petitioner. The offence as disclosed in the FIR is not merely a claim for paternity for the child begot by the defacto complainant, but it was one of rape and cheating. The defacto complainant was a higher secondary school student and her age was yet to be ascertained.
8.It must be noted that if the defacto complainant was minor, even if the petitioner pleads any consent for sexual intercourse, that cannot be held to be a valid defence in an offence under Section 417 as held by the Supreme Court in Yedla Srinivasa Rao v. State of A.P., reported in (2006) 11 SCC 615. In paragraph 10, the Supreme Court had observed as follows:
"10.It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent. In this connection, reference may be made to a decision of the Calcutta High Court in Jayanti Rani Panda v. State of W.B.1 In that case it was observed that in order to come within the meaning of misconception of fact, the fact must have an immediate relevance. It was also observed that if a fully grown-up girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact and it was held that Section 90 IPC cannot be invoked unless the court can be assured that from the inception the accused never intended to marry her. Therefore, it depends on case to case that what is the evidence led in the matter. If it is a fully grown-up girl who gave the consent then it is a different case but a girl whose age is very tender and she is giving a consent after persuasion of three months on the promise that the accused will marry her which he never intended to fulfil right from the beginning which is apparent from the conduct of the accused, in our opinion, Section 90 can be invoked. Therefore, so far as Jayanti Rani Panda1 is concerned, the prosecutrix was aged 21-22 years old. But, here in the present case the age of the girl was very tender between 15-16 years. Therefore, Jayanti Rani Panda case1 is fully distinguishable on facts. It is always a matter of evidence whether the consent was obtained willingly or consent has been obtained by holding a false promise which the accused never intended to fulfil. If the court of facts comes to the conclusion that the consent has been obtained under misconception and the accused persuaded a girl of tender age that he would marry her then in that case it can always be said that such consent was not obtained voluntarily but under a misconception of fact and the accused right from the beginning never intended to fulfil the promise. Such consent cannot condone the offence. Reliance can also be placed on Emperor v. Soma2. In that case the question of consent arose in the context of an allegation of kidnapping of a minor girl. It was held that the intention of the accused was to marry the girl to one Daya Ram and she obtained Kujan's consent to take away the girl by misrepresenting her intention. In that context it was held that at the time of taking away the girl there was a positive misrepresentation i.e. taking the girls to the temple at Jawala Mukhi and thereafter they halted for the night in kutiya (hut), some three miles distance from Pragpur and met Daya Ram, Bhag Mal and Musammat Mansa and Musammat Sarasti was forced into marrying Daya Ram. This act was found to be an act of kidnapping without consent. But, in the instant case, a girl though aged 16 years was persuaded to sexual intercourse with the assurance of marriage which the accused never intended to fulfil and it was totally under misconception on the part of the victim that the accused was likely to marry her, therefore, she submitted to the lust of the accused. Such fraudulent consent cannot be said to be a consent so as to condone the offence of the accused. Our attention was also invited to the decision of this Court in Deelip Singh v. State of Bihar3 wherein this Court took the view that the prosecutrix had taken a conscious decision to participate in the sexual act only on being impressed by the accused who promised to marry her. But the accused's promise was not false from its inception with the intention to seduce her to sexual act. Therefore, this case is fully distinguished from the facts as this Court found that the accused's promise was not false from its inception. But in the present case we found that the first accused committed rape on the victim against her will and consent but subsequently, he held out a hope of marrying her and continued to satisfy his lust. Therefore, it is apparent in this case that the accused had no intention to marry and it became further evident when the panchayat was convened and he admitted that he had committed sexual intercourse with the victim and also assured to marry her within 2 days but did not turn up to fulfil his promise before the panchayat. This conduct of the accused stands out to hold him guilty. What is a voluntary consent and what is not a voluntary consent depends on the facts of each case. In order to appreciate the testimony, one has to see the factors like the age of the girl, her education and her status in the society and likewise the social status of the boy. If the attending circumstances lead to the conclusion that it was not only the accused but the prosecutrix was also equally keen, then in that case the offence is condoned. But in case a poor girl placed in a peculiar circumstance where her father has died and she does not understand what consequences may result from indulging into such acts and when the accused promised to marry her but he never intended to marry her right from the beginning then the consent of the girl is of no consequence and falls in the second category as enumerated in Section 375 - "without her consent". A consent obtained by misconception while playing a fraud is not a consent."
(Emphasis added)
9.On the question of DNA test being conducted by the investigating officer, the Supreme Court had dealt with the scope of constitutional right of the accused in terms of Article 20(3) and the right to privacy and the power of the investigating officer to conduct such test vide its judgment in Selvi v. State of Karnataka reported in (2010) 7 SCC 263. In paragraphs 220 and 224, the Supreme Court had observed as follows:
"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 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.
224.Moreover, a distinction must be made between the character of restraints placed on the right to privacy. While the ordinary exercise of police powers contemplates restraints of a physical nature such as the extraction of bodily substances and the use of reasonable force for subjecting a person to a medical examination, it is not viable to extend these police powers to the forcible extraction of testimonial responses. In conceptualising the "right to privacy"
we must highlight the distinction between privacy in a physical sense and the privacy of one's mental processes."
10.Therefore, merely because the petitioner had offered to subject himself to a DNA test, does not mean the defacto complainant and the minor child can also be subjected to such tests without their consent. It is entirely for the prosecution to make a request before the trial Magistrate and to get appropriate orders in this regard. Even in such cases the consent of the defacto complainant and the guardian's consent with regard to the minor child will also be relevant. No person can be forced to do against her will.
11.The petitioner's allegations that the defacto complainant's parents attempting to foist a case so as to make him to marry the defacto complainant is at the best only a defence. It is not as if courts are not aware of false complaints being lodged in such cases. A concern to that effect was also expressed by the Supreme Court in Radhu v. State of Madhya Pradesh reported in (2007) 12 SCC 57 and in paragraph 6, the Supreme Court had observed as follows:
6..... The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability.
Whether there was rape or not would depend ultimately on the facts and circumstances of each case. (Emphasis added)
12.A perusal of the above passage will clearly show that it is entirely for the investigating machinery with appropriate orders from the court to decide such issues. At this stage, the petitioner cannot, in order to establish his alleged innocence or his possible defence, move this court to get a particular direction to the investigating agency either to act in a particular manner or as to how the investigating agency should act. Therefore, this court is not satisfied with the reliefs claimed by the petitioner. It is for him to work out his rights before the learned Magistrate in accordance with the provisions of the Cr.P.C.
13.In the light of the above, the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petition stands closed.
vvk To
1.The Deputy Director, D.N.A. Section, Forensic Science Department, Mylapore, Chennai-4.
2.Sub Inspector of Police, All Women Police Station, Valliyoor, Tirunelveli District.