The High Court of Calcutta, while allowing a revision petition passed by the learned Special Judge (POCSO) on an application filed by the prosecution for taking blood samples of the accused, the victim girl, and the minor baby of the victim girl for the purpose of DNA profiling, held that the order directing further investigation by the learned Court under section 53-A of the CrPC in the form of collecting DNA evidence to be submitted by a supplementary chargesheet was contrary to the procedure established under the CrPC.
Brief Facts:
The impugned order was passed on 20.11.2023 on an application filed by the prosecution for taking blood samples of the accused, the victim girl, and the minor baby of the victim girl for the purpose of DNA profiling. The order records that the victim girl was present before the Court on the day when the order was passed and filed her consent for the collection of her blood sample and that of her baby for DNA profiling. The learned Court directed the Investigating Officer to produce the accused, the victim girl, and the minor child of the victim girl for collection of blood samples for DNA analysis and thereafter send the samples to the CFSL laboratory for further reports.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that the application for the DNA test was made by the prosecution to fill up the lacunae in the prosecution case and after the commencement of trial. The Counsel placed the dates relevant to the argument and submitted that the application was made after the commencement of cross-examination in April 2023.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent submitted that the invocation of section 53-A of the CrPC cannot be faulted. He argued that section 53-A can be invoked for the purpose of adducing additional evidence at any point in time.
Observations of the court:
The court noted that the reasons for allowing the application appear to be the presumption of paternity of the child born to the victim girl. The Ld. Special Court was of the view that the question of paternity of the minor child should not be left undecided in light of Article 21 of the Constitution.
The court observed that the trial commenced after the framing of charges and ended the period during which any further investigative process could be carried out including any orders passed by the learned Special Court either suo moto or on an application made by the party before the learned Special Court. Thus, the order directing further investigation by the learned Court under section 53-A of the CrPC in the form of collecting DNA evidence to be submitted by a supplementary chargesheet was contrary to the procedure established under the CrPC. The Court said that section 311 cannot be used for filling up lacunae through recall or examination of witnesses for the purpose of creating fresh evidence.
The decision of the Court:
The Calcutta High Court, allowing the petition, held that the prejudice caused to the petitioner/accused was automatic and irreversible once the trial Court allowed the creation of new evidence after the stage of investigation for filling up the gaps in the prosecution case.
Case Title: Sanjay Biswas vs The State & Anr.
Coram: Hon’ble Mr. Justice Moushumi Bhattacharya
Case No.: CRR/28/2023
Advocate for the Petitioner: Mr. Deep Chaim Kabir
Advocate for the Respondent: Mr. Salim Mohammed
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