Karnataka High Court
Rudresh @ Rudrachari S/O. Devendrappa ... vs The State Of Karnataka on 23 September, 2014
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23 R D DAY OF SEPTEMBER, 2014
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
CRIMINAL PETITION No.101368/2014
BETWEEN:
Sri Rudresh @ Rudrachari,
S/o Devendrappa Badiger,
Age: 27 years,
Occ:: Private Service,
R/o: Kuvempu Nagar,
Tq & Dist:Koppal.
... PETITIONER
(BY SRI. SANTOSH BMALAGOUDAR, ADV.)
AND:
The State of Karnataka,
Through P S I Koppal Town
Police Station,
Represented. by Addl. SPP office,
High Court of Karnataka,
Dharwad Bench.
... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, HCGP)
---
2
THIS CRIMINAL PETITION IS FILED U/S 482
OF CR.P.C. SEEKING TO QUASH THE ORDER
DATED 25.7.2014 PASSED BY THE COURT OF
DISTRICT AND SESSIONS JUDGE, KOPPAL IN S C
No.3/2004.
THIS PETITION COMING ON FOR DICTATING
ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is an accused charged for the offence punishable u/s 417 & 376 of Indian Penal Code The investigation is complete and charge sheet is filed. The prosecution has almost completed recording of evidence. At this juncture, the prosecution filed an application under Section 53-A and 164-A of Cr P C with a prayer to collect blood sample for D.N.A test. The application has been allowed by the order dated 20.6.2014 against which petitioner approached this Court in Criminal Revision Petition No.100148/2014 and this Court on 16.7.2014 allowed the petition, quashed the order dated 20.6.2014 and directed 3 the learned trial Judge to pass appropriate order in the light of the judgment in (2010) 8 SCC 663.
2. After the matter was so remanded, the learned Sessions Judge, reconsidered the same and allowed the application filed by the prosecution. Hence this petition.
3. The learned Sessions Judge by the order dated 25.7.2014 directed the Investigating Officer to collect blood sample from the accused, victim and the child for conducting D.N.A test.
4. The learned counsel for the petitioner submitted as follows:
(i) Application as filed for D N A test is impermissible either under Section 53-A or under Section 164-A of Cr P C. Section 53-A pertains to examination of accused person accused of rape by a 4 medical practitioner. This is available to the investigation only when a person is arrested on a charge of committing offence of rape. Once the process under these provisions is completed, there is no further provision for further investigation.
(ii) By referring Section 164-A, even the victim was also subjected to medical test immediately after report of offence of rape. The said provision does not provide for further investigation, more particularly for collecting blood sample for DNA test.
(iii) Directing investigation officer to collect blood is in violation of Article 20(3) of Constitution of India, which contemplates that no person accused of 5 any offence shall be compelled to be a witness against himself. By collecting blood sample from the accused, he is being compelled to be a witness against himself.
Hence the order impugned is sought to be set aside.
5. The learned HCGP for the respondent submitted to dismiss the petition. Section 53-A of Cr P C permits investigating officer to collect blood sample as a part of investigation. Though the petitioner was subjected to medical examination as per Section 53-A, as on that date the victim was conceived. Immediately after the victim begot the child, prosecution has filed application to collect the blood samples to prove the case beyond reasonable doubt. Under these circumstances, expressly and impliedly Section 53-A of Cr P C 6 permits to collect the blood sample for DNA test. The learned H C G P referred Section 173(8) of Cr P C, which enables the prosecution for further investigation and therefore, there is no error in the impugned order.
6. In respect of violation of constitutional provision, learned HCGP referred the judgment of this Court reported in ILR 2004 KAR 2637 (H M Prakash @ Dalivs. The State of Karnataka) and 2010 Crl.L.J 4341 (Halappa v. State of Karnataka), in which it is held that collection of blood sample for DNA test is not violation of Article 20(3).
7. I have heard both.
8. Immediately after report of offence of rape, accused has to be subjected to examination by the Medical Practitioner. The provision says that when a person is arrested, it has to be understood that he is in judicial custody even after he is 7 enlarged on bail. It is a regulated freedom and he is available and amenable on all occasions for examination and reexamination and further examination, which also includes investigation. The occasion for invoking Section 53-A Cr.P.C., for permitting Investigating Officer for further investigation, it was alleged by the complainant that the accused has committed a date rape and acquaintance rape. He had made promise to marry the victim and in that pretext he used to meet the victim time and again and he has pressurized the victim to submit herself for sexual assault and thereafter he withdrew from the said promise to marry her. In the course of time, she conceived and delivered a child. This is a new circumstance for the prosecution to prove their case. The statement of the victim that she became pregnant and the accused is father of the child, which is requires further investigation. In view of 8 the peculiar circumstance of birth of a child, it is for the prosecution to seek permission to take blood sample for DNA test. In this backdrop of the case, the order passed by the court below is strictly in accordance with Section 53-A of Cr P C.
9. Further investigation, the prosecution is entitled to do by virtue of sub-section (8) of Section 173. Hence I hold that application made by the prosecution and the order passed by the trial court are in accordance with law.
10. This court in H M Prakash @ Dali vs., The State of Karnataka (ILR 2004 KAR 2637) examined several judgments and held that it is permissible to invoke Section 53-A for further investigation. By referring decision in State of Bombay vs., Kathi Kalu Oghad (AIR 1961 SC 1808), it is held that "the constitution makers could not have intended to put obstacles in the way of efficient and 9 effective investigation into a crime and for doing justice by punishing the real culprits. Even otherwise, mere examination of a person and taking of blood sample in itself is not an incriminating circumstance and therefore, it cannot be said that by mere taking a blood sample of a person, he is compelled to be a witness against himself".
11. In Para-28 and 29 (ILR 2004KAR 2637), this is what is observed in the judgment:
"28. Thus, it takes me to the third contention urged by the learned Counsel for the petitioner. Merely because the accused is released on bail, he does not cease to be the "arrested person" or "person in custody" and that therefore, the power conferred on the Court/investigating officer under Section 53 of the Code can be exercised. Until the accused is tried, proved not guilty and acquitted of the charges leveled against him, he is the accused and under custody of the Court. The release on bail does not change the reality and 10 from that fact alone, it cannot be said that he is not a person arrested for an offence. A person released on bail is still considered to be detained in the constructive custody of the Court through his surety. He has to appear before the Court as and when required or directed. He is notionally in the custody of the Court and hence, continues to be a person arrested. Therefore, to that extent, his liberty is subjected to restraint. More over, Section 173(8) of the Code confers an express power to the investigating authority to carry out further investigation after cognizance is taken by the Court. My aforesaid view is supported by the Judgments in ANIL ANANTHRAO KOKHANDE v.
THE STATE OF MAHARASHTRA, ANANTH KUMAR NAIK v. STATE OF ANDHRA PRADESH and THANIEL VICTOR v. STATE(supra). As such, even in spite of the fact that the accused is released on bail, he continues to be a person arrested on a charge of commission of an offence and, therefore, his medical examination can be carried out under Section 53 of the Code of Criminal Procedure even after his release on bail.
29. Now coming to the fourth and last contention of the petitioner, though Section 53 of the Code discloses that the medical examination will have 11 to be conducted at the instance of a police officer not below the rank of sub-inspector, that does not prohibit other superior officers or the Court concerned from exercising said power if it is necessary for rendering justice in criminal case. If medical examination of an accused can be done at the instance of the police officer not below the rank of sub-inspector, then such a power should be deemed to be impliedly possessed by a Magistrate or Court trying the offence. There is no warrant for curtailing the scope of the Section 53 of Cr.P.C. The primary duty of the Court is to ascertain the truth. Thus, it is not correct to say that Court or Magistrate cannot direct or order the accused for medical examination as contemplated under Section 53 & 54 of the Code. In this context, a reference can be made in the judgment of the Apex Court in the case of STATE (DELHI ADMINISTRATION) v. PALI RAM, wherein, the Apex Court, while upholding the power of the Court under Section 53 of the Code to direct the accused to give his specimen writing observed thus:
"In the Revision Petition filed by the accused before the High Court a grievance is sought to be made out that the Magistrate's order will work prejudice to the defence and enable the 12 prosecution to fill gaps and loopholes in its case. This contention was devoid of force. Once a Magistrate in seisin of a case, duly forms an opinion that the assistance of an expert is essential to enable the Court to arrive at a just determination of the issue of the identity of disputed writing, the fact that this may result in the "filling of loopholes" in the prosecution case is purely a subsidiary factor which must give way to the paramount consideration of doing justice. Moreover, it could not be predicated at this stage whether the opinion of the Government Expert of questioned documents would go in favour of the prosecution or the defence. The argument raised before the High Court was thus purely speculative.
In addition to Section 73, there were two other provisions resting on the same principle, namely Section 165, Evidence Act and Section 540.The Code 1898 which between them invest the Court with a wide discretion to call and examine any one as a witness, if it is bona fide of the opinion that his examination is necessary for a just decision of the case. In passing the order which he did, the Magistrate was acting well within the bounds of this principle.13
In our opinion these observations aptly apply to the present case also. Therefore, it is open to the Court which is seized of the matter to issue direction or to grant approval or permission to the police for carrying out further investigation under Section 53 of the Code of Criminal Procedure."
12. In another judgment, 2010 Crl.L J 4341, in Para-31, this is what is stated:
"31....As stated earlier, this amendment was brought to overcome the difficulty of the prosecuting agency to detect the serious offence of rape. This section is not ultra vires of the Constitution. Drawing of the blood sample for the purpose of civil proceedings without the consent of the party is not desirable. But drawing of the blood sample for detection of the offence of rape wherein the investigating agency has to establish its case beyond reasonable doubt, cannot be termed as violative of Article 20(3) of the Constitution. The offence of rape is a very serious offence 14 and it is an offence against the society at large".
13. It is the expression of the Supreme Court that ordering DNA test is not for a roving enquiry. It is not automatic whenever application is made. The learned Magistrate has to apply his mind and his application of mind depends upon facts of each case. In the light of the observation made by the Supreme Court, the order passed by the learned trial Judge is as per its direction. This Court also in the earlier petition directed the learned Judge to examine and as to the parties ready for DNA test and further directed to examine whether DNA test is imminent in the facts and circumstances. The learned Trial Judge has referred the judgment in (2010) 8 SCC 633 and (1993) 3 SCC 418 and (2003)4 SCC 493 and assigned reasons in Para 17 & 18 or the order. There is an objective consideration by the trial Judge. When a person knocks the door of the Court seeking for justice, it is the paramount duty of Judges to render justice 15 especially in criminal proceedings where the prosecution has to prove its case beyond reasonable doubt. The parties should know for what reason he/she is convicted and for what reason he/she has lost the case.
14. In the facts and circumstances of the case, the reasons assigned by the learned Trial Judge to allow the application are sound and proper. All the grounds urged by the petitioner are considered and answered in the above judgments. I do not find any good reason to interfere. Accordingly, the petition stands rejected. However, the observations made herein shall not be taken by the Trial Judge as one way or the other expressing any opinion on the main matter.
SD/-
JUDGE akd*