State Of Maharashtra vs Ranjit S/O Megharaj Bhillam
2003 Latest Caselaw 410 Bom

JUDGMENT

S.T. Kharche, J.

1. Rule. Rule made returnable forthwith.

2. Heard Shri Mirza, learned Additional Public Prosecutor for the State and Shri Daga, learned counsel for the respondent.

3. This is an application under Section 482 of Code of Criminal Procedure ("the Code" for short) for quashing and setting aside the order dated 21st August, 2002 passed below Ex. 27 in Sessions Trial No. 94/2001 passed by the 4th Ad hoc Additional Sessions Judge, Nagpur, who rejected the application filed by the prosecution seeking permission for medical examination of the accused for deciding the paternity of the child.

4. Brief facts are as under:--

The non-applicant accused is facing prosecution for the offences punishable under Sections 376, 417 of Indian Penal Code. During the course of investigation, sample of blood of the non-applicant-accused as well as that of the complainant and the child was sent to Chemical Analyzer, Mumbai and reports have already been received, which are filed along with the charge-sheet. Charge was framed and explained to the accused on 17-6-2002 to which he pleaded not guilty and claimed to be tried. The prosecution have examined as many as five witnesses including prosecutrix and investigating officer and the trial was adjourned to 2-8-2002 for recording the statement of non-applicant-accused under Section 313 of Code. On 2-8-2002 prosecution moved an application under Section 53 of Code and requested for allowing the prosecution to examine the accused medically for determination of paternity of the child. This application was rejected by the learned 4th Ad hoc Additional Sessions Judge, Nagpur on 21-8-2002 and it is this order, which is under challenge in this application.

5. The learned Additional Public Prosecutor contended that though the samples of blood of non-applicant/accused as well as complainant was forwarded to the Chemical Analyzer, Mumbai to decide the paternity of the child, the same has not been done by the Forensic Department. The Medical Officer, who had examined the applicant had opined that pregnancy by the accused can only be confirmed after chemical analysis of semen. It is contended that the learned 4th Ad hoc Additional Sessions Judge, Nagpur has committed an error in refusing to grant permission to the prosecution to get the accused medically examined for determining of paternity test. Because in view Section 53 of the Code, prosecution can compel the accused to undergo such an medical examination. He contended that it is necessary for the prosecution to conduct the said paternity test, which would be a conclusive proof to show as to whether the accused is guilty for the offence punishable under Section 376 read with Section 417 of Indian Penal Code. The learned A.P.P. contended that the impugned order passed by the 4th Ad hoc Additional Sessions Judge is not sustainable in law and therefore, it be quashed and set aside and the prosecution may be permitted to conduct such paternity test.

6. The learned A.P.P. contended that such paternity test could be conducted at Forensic Laboratory at Hyderabad and Mumbai and State is ready to bear all the expenses for conducting the said paternity test from those laboratories.

7. Mr. Daga, learned counsel for the non-applicant-accused contended that the prosecution has examined almost all the witnesses and at the belated stage filed application, under Section 53 of the Code, which is devoid of any substance and rightly rejected by the trial Court. He further contended that prosecution has also examined the investigating officer and exercise of sending sample of blood of the prosecutrix as well as non-applicant-accused to Chemical Analyzer for analysis has already been over and such exercise is to be conducted during the course of investigation and in such circumstances, order passed by the learned 4th Ad hoc Additional Sessions Judge, Nagpur are sustainable in law.

8. I have given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. A short question that arise for determination in this application as to whether the prosecution can avail the opportunity of examination of the accused under Section 53 of the Code for determination of paternity test. I may usefully refer Section 53 of Code, in this context, which contemplates as under:--

Section 53. "Examination of accused by medical practitioner at the request of police officer-- (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

Explanation : In this section and in Section 54, "registered medical practitioner" means a medical practitioner who possesses any recognised medical qualification as defined in Clause (h) of Section 2 of the Indian Medical Council Act, 1956 (102 of 1956), and whose name has been entered in a State Medical Register."

9. A bare reading of the aforesaid provision, it would reveal that the prosecution can avail the opportunity of getting the accused examined through medical practitioner as per the provisions of Section 53 of the Code. It is settled law that taking of sample of blood of the accused for comparison is permissible under Section 53 of the Code and thereby accused does not become witness within the meaning of Article 20(3) of Constitution. Medical Examination must logically take in examination of blood, sputum, semen, urine etc. The obtaining of such evidence, is not violation of Article 20(3) which grants protection of self incrimination.

10. In the present case though the prosecution have examined all material witnesses and closed its case for recording the statement of accused under Section 313 of Code, that by itself cannot be considered to be a ground for rejection of the application of prosecution, which is permissible under Section 53 of the Code. The contention of Mr. Daga that the said exercise has been done and there is no need to again direct the accused to undergo medical examination for determining the paternity is not acceptable especially when the reports of Chemical Analyzer indicate that blood groups only of the prosecutrix and accused are determined. The reports of Chemical Analyzer further indicate that there was no attempt by Chemical Analyzer to find out as to whether the child begotten by the prosecutrix is a child of the accused.

11. The learned 4th Ad hoc Additional Sessions Judge appears to have concluded the point by observing that the paternity test is not a conclusive proof without affording any opportunity to the prosecution to conduct the said test and in such circumstances, I am of the considered view that the impugned order passed by the 4th Ad hoc Additional Sessions Judge is erroneous. This is a fit case in which in order to secure the ends of justice, this Court is required to exercise powers under Section 482 of the Code. In such circumstances, the impugned order passed by him is set aside and the matter is sent back to him to consider the application (Ex. 27) of prosecution, which would afford opportunity for conducting the paternity test in the light of the observations mentioned above in this judgment. Record and proceedings be sent back to the trial Court immediately without delay. Application is allowed. Rule is made absolute.