Jharkhand High Court
Md Azhar vs The State Of Jharkhand And Anr on 30 June, 2017
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (Cr.) No. 159 of 2016
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Md. Azhar son of Md. Alimuddin resident of village Line Mohalla
Khankah Gali, PO Chatra, PS Sadar, District Chatra
... ... Petitioner
Versus
1.The State of Jharkhand
2.Naz Parween D/o Md. Sabir, resident of Chatra Line
Mohalla, PO & PS Chatra, District Chatra ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Rajiv Kumar, Advocate
For the Respondent-State : Mr. R. R. Mishra, G.P. II
For the Respondent No. 2 : None
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7/30.06.2017Heard Mr. Rajiv Kumar, learned counsel for the petitioner and Mr. R. R. Mishra, learned G.P. II appearing for the respondent no. 1. No one appears on behalf of respondent no. 2 in spite of valid service of notice.
2. In this application the petitioner has prayed for quashing the order dated 12.05.2016 passed by the additional Sessions Judge I cum Special Judge, Chatra in POCSO Case No. 15 of 2015 whereby and whereunder the application preferred by the petitioner for getting his DNA profiling done under Section 54A(2) (iv) of Cr.P.C. has been rejected.
3. It appears that the petitioner had earlier prayed for DNA profiling of himself as well as the baby girl of the prosecutrix, which however was rejected on 02.12.2015 in Cr.M.P. No. 2344 of 2015 by this Court. However a liberty was granted to the petitioner to lead his evidence in his defence at the appropriate stage and accordingly the court below shall consider the prayer of the petitioner for DNA profiling at the stage when the right accrues to the petitioner to lead evidence in his defence.
4. It has been stated by the learned counsel for the petitioner that subsequent to the order passed in Cr.M.P. No. 2344 of 2015, the prosecutrix has been examined as P.W. 4 wherein she has clearly stated that she does not have any objection if the DNA profiling of her child and the petitioner is done. It has been stated that in view of the evidence of prosecutrix, there is no impediment for getting the DNA profiling of the petitioner as well as the baby girl of the prosecutrix be done.
-2-5. Mr. R. R. Mishra, learned G.P. II has opposed the prayer made by the petitioner.
6. It appears that in course of trial, the evidence of the prosecutrix has been concluded wherein at paragraph 35 she has fairly stated that she does not have any objection if the court orders for doing the DNA profiling. The stage at which the order dated 02.12.2015 was passed in Cr.M.P. No. 2344 of 2015 has subsequently changed as at that point of time the prosecutrix was never examined as a witness.
7. In the case of "Krishan Kumar Malik Vs. State of Haryana"
reported in (2011) 7 SCC 130, while considering Section 53 A of the Cr.P.C., it was held as follows:
44. "Now, after the incorporation of Section 53-A in the Criminal Procedure Code w.e.f. 23.06.2006, brought to our notice by the learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused.
Prior to 2006, even without the aforesaid specific provision in CrPC the prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences."
8. In view of the liberty which has earlier been granted to the petitioner in Cr.M.P. No. 2344 of 2015 and the subsequent evidence which has come on record to the effect that the prosecutrix does not have any objection with respect to the DNA profiling of the petitioner as well as her baby girl, the same was never considered by the learned trial court while refusing the prayer of the petitioner vide order dated 12.05.2016.
9. Accordingly, in view of what has been state above, the impugned order dated 12.05.2016 passed by the learned Additional Sessions Judge I cum Special Judge, Chatra in POCSO Case No. 15 of 2015 is hereby quashed and set aside. The learned trial court shall now take steps for getting the DNA profiling of the petitioner as well as the baby girl of the prosecutrix be done in accordance with law at the earliest.
This application stands disposed of.
(Rongon Mukhopadhyay, J) R. Shekhar Cp 3