Bombay High Court
Vasant Shankar Kadam vs Kavita Vasant Kadam And Anr on 3 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:343
Darshan Patil 905-wp-1115-16.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1115 OF 2016
VASANT SHANKAR KADAM ..PETITIONER
VS.
KAVITA VASANT KADAM AND ANR. ..RESPONDENTS
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Mr. Umesh Mankapure for the Petitioner.
Mr. Ranjeet H. Patil for Respondent No.1.
Ms. S.D. Shinde, APP for the State.
------------
CORAM : M. S. KARNIK, J.
DATE : JANUARY 03, 2024
ORAL JUDGMENT:
1. The petitioner- accused No.1 by this petition
challenges the order passed by the trial Court on the
application filed by respondent No.2 - State of Maharashtra
below exhibit 36 in Special Case No.12 of 2014 with a
prayer to collect a blood sample of the petitioner for D.N.A.
test. The trial Court by the impugned order dated
14/01/2016 has allowed the application.
2. To appreciate the controversy, it would be necessary
to carefully peruse the statements of respondent No.1
herein at whose instance the criminal prosecution came to
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be initiated. The petitioner herein is the original accused
No.1 in C.R. No. 102 of 2014 registered at Miraj Rural Police
Station, District Sangli in respect of the offence alleged by
respondent No.1 for the offences punishable under Sections
498-A, 494, 496, 504, 506 read with 34 of the Indian Penal
Code and Sections 3(1)(r), 3(1)(s), 4(1)(u), 6 and 3(2)(va)
of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act Amendment, 2015.
3. It is the allegation of respondent No.1- complainant
that she belongs to the Hindu-Mang community which is
recognised as a Scheduled Caste. The petitioner belongs to
the Maratha community. The petitioner was already
married. The petitioner though was a married person,
insisted the respondent No.1 to maintain a relationship with
him and expressed his desire to marry her. Respondent
No.1 initially refused but later for a period of 2½ years
maintained a relationship with the petitioner. Thereafter,
on 07/01/2014, the petitioner married respondent No.1. It
is alleged that some of the relatives of the petitioner as well
as of his first wife were present. Respondent No.1 later
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conceived. However, the petitioner was insisting that
respondent No.1 should abort the child. The petitioner and
his first wife abused respondent No.1 and assaulted her as
is the accusation. The petitioner and his first wife were after
respondent No.1 to undergo an abortion. However,
respondent No.1 gave birth to a child on 25/10/2014. The
FIR is dated 16/09/2014 and the charge-sheet was filed on
30/10/2014.
4. During the pendency of the Special Case before the
Special Court, the prosecution made an application below
exhibit 36 with a prayer to collect the blood sample of
accused No.1/petitioner for the D.N.A. test. The application
was resisted by the petitioner and filed his say at exhibit
37. The Special Court by the impugned order dated
14/01/2016 allowed the application below exhibit 36. The
Special Court on the basis of the observations from
paragraph No.3 onwards was of the opinion that the
application made by the prosecution deserves to be
allowed. The relevant portion of the orders reads thus:
"3. It is alleged by the informant that, the accused
No.1 had performed marriage with victim and
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established sexual relationship with her. In the
course of time, she delivered a male child on 25-10-
2014 and charge-sheet came to be filed on 30-10-
2014. The victim could not inform about her delivery
to the police within the said short time span. This is a
new circumstance for the prosecution to its case. The
statement of the victim is that, she became pregnant
and the accused is the father of her child, thus
requires further investigation. In view of the peculiar
circumstances of the birth of child, it is for the
prosecution to seek permission to take blood sample
of accused No.1 for DNA test.
4. On behalf of accused, it is submitted that, during
the course of investigation, the Police Officer did not
attempt to collect the DNA sample and it is also not
the case of the prosecution that, accused No.1
refused for the same that unless and until present
accused refused to give consent to the Investigating
Officer, prosecution cannot directly ask the court to
compel order of DNA. It is also one of the ground of
resisting Exh.36 that, during the course of
investigation, the Investigating Officer did not make
any effort and the present act is to fill up the lacuna
in the charge-sheet. It is also one of the ground that,
after filing charge-sheet, Court has no power to pass
an order in respect of collection of any further
evidence and further inquiry in the matter. Hence,
the application of prosecution be rejected. In support
of the contention on behalf of accused, he has relied
on the ruling of Goutam Kundu Vs. State of West
Bengal and another, reported in AIR 1993, SC 2295.
In this it is held that,
"The order of blood test cannot be permitted
whenever applications are made for such prayer
in order to have roving_ inquiry, the prayer for
blood test cannot be entertained. There must be a
strong prima-facie case in that the husband must
establish non-access in order to dispel the
presumption arising under section 112 of the
Evidence Act. The Court must carefully examine
as to what would be the consequence of ordering
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the blood test; whether it will have to the effect of
branding a child as a bastard and the mother as
an unchaste woman. No one can be compel to
give sample for blood for analysis".
Perused the entire citation. The said judgment
rises from a matrimonial dispute pertaining to
payment of maintenance under Section 125 of
Criminal Procedure Code. I am of the view that, the
citation has different set of facts and it is not
applicable to the facts in hand. So also the other
citation relied by on behalf of accused i.e. Syed
Mohd.Ghouse Vs. Noorunnisa Begum, reported in
2001 Cri.L.J. 2028 is not applicable to the facts in
hand.
5. The criminal provision says that, when a person is
arrested it is to be understood that he is in judicial
custody even after he is enlarged on bail. It is
regulated freedom and he is available and amenable
on all occasions for examination and re-examination
which also includes investigation. By virtue of Section
173(1) of the Criminal Procedure Code, the
prosecution is entitled for further investigation. In
this context, reference can be made to the judgment
of the Apex Court in the case of State (Delhi
Administration) Vs. Paliram, AIR 1979 Supreme
Court, wherein it was held that, "in the revision
petition filed by the accused before the High Court a
grievance is sought to be made out that Magistrate
order will work to prejudice the defence and enable
the prosecution to fill gap and loopholes in its case.
This contention is devoid of force. Once a Magistrate
is in session of a case, duly form a opinion that the
assistance of an expert is essential to enable the
court to arrive at a just determination of the issue of
identity of disputed writing the fact that this may
result in "filling of loopholes", in the prosecution case
as purely a subsidiary factor which may give a
paramount consideration of doing justice. Moreover,
it could not be predicated at this stage whether the
opinion of Government expert of the questioned
document would go in favour of the prosecution or
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the defence. The argument raised before the High
Court, is thus purely speculative". In our pinion these
observations purely apply to the present case also.
Therefore, it is open to the court which is a ceased of
the matter to issue direction or to grant approval or
permission to police for carrying out further
investigation.
6. In support of his request for further investigation,
the learned APP has relied on Samaj Parivartan
Samudaya & Ors. Vs. State of Karnataka & Ors. It is
held by the Hon'ble Supreme Court that,
"The provisions of Section 173(8) of Cr.P.C. pen
with nonobstante language that nothing in the
provisions of Section 173(1) to 173(7) shall be
deemed to preclude further investigation in
respect of an offence after a report under sub-
section (2) has been forwarded to the Magistrate.
Thus, under Section 173(8), where charge-sheet
has been filed, that Court also enjoys the
jurisdiction to direct further investigation into the
offence. This power cannot have any inhibition
including such requirement as being obliged to
hear the accused before any such direction is
made. The casting of any such obligation on the
Court would only result in encumbering the Court
with the burden of searching for all potential
accused to be afforded with the opportunity of
being heard".
Filing charge-sheet in a case does not by itself
bring absolute end to exercise of power by the
investigation agency or by the Court.
Investigation Agency is not required to hear
affected party prior to registration o case against
suspect."
In view of the peculiar circumstances this case and
the fact that the child is born when the charge-sheet
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was filed, just within 5 days of its birth. In such
peculiar circumstances, the request of the
prosecution for taking the sample of blood for DNA
test in order to establish prosecution case beyond
reasonable doubt, is required to be considered in the
interest of justice. There is an object to consideration
by the Trial Judge when a person seeking for justice,
it is paramount duty of the judges to tender justice
especially in criminal proceeding where the
prosecution has to prove its case beyond reasonable
doubt. The party who know for what reason he/she is
convicted and for what reason he or she has lost the
case. Hence, I hold that the application made by the
prosecution deserves to be considered."
5. I have heard the learned counsel for the petitioner
who argued in support of the grounds which are raised in
the petition memo. Learned counsel placed reliance on the
decision of the Hon'ble Supreme Court in the case of
Goutam Kundu vs State Of West Bengal And Anr. 1 to
contend that no person can be compelled to give sample of
blood for analysis and no adverse inference can be drawn
against a person on account of such refusal.
6. Learned APP and learned counsel for respondent No.1
supported the impugned order. It is submitted that the
Special Court gave cogent reasons while allowing the
application. It is further submitted that in the collateral
1993 Supreme Court Cases (3) 418
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proceeding filed under the Domestic Violence Act, the
petitioner has denied the paternity to the child and hence
the order passed by the trial Court which is in furtherance
of the interest of justice be sustained.
7. Perusal of the statements of respondent No.1 and the
relevant materials produced before the trial Court would
indicate that the complaint has been filed by respondent
No.1 under the aforesaid Sections on the accusations that
though the petitioner had married respondent No.1, the
petitioner as well as his first wife were forcing respondent
No.1 to abort the child. It is further alleged that the
petitioner was ill-treating and assaulting respondent No.1.
Having regard to the nature of the accusations and the
sections which have been invoked in the present case which
allegedly constitute an offence, in my opinion, the
application made by the prosecution below exhibit 36 was
unwarranted and not at all relevant for a decision on the
controversy. The dispute is not about the paternity of the
child. The impugned order passed is clearly beyond the
scope of the complaint which has been filed.
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8. The impugned order calls for interference and is
accordingly quashed and set aside. It is made clear that it is
always open for the prosecution or the respondent No.1 to
make an appropriate application with similar prayers as in
the application below exhibit 36, in appropriate proceedings
when the occasion so arises. I may not be construed to
have made any observations on the merits of the
application exhibit 36. I am only of the opinion that it was
not necessary to entertain such an application as below
exhibit 36 for a decision in the proceedings before the
Special Judge, having regard to the nature of the
accusations made in the complaint by respondent No.1.
9. The impugned order dated 14/01/2016 passed below
exhibit 36 in Special Case No. 12 of 2014 is set aside and
consequently the application below exhibit 36 is rejected.
10. It is once again made clear that it is always open for
respondent No.1 or the prosecution to make an appropriate
application of a similar nature as exhibit 36 if the occasion
arises in appropriate proceedings which shall be considered
on its own merits and in accordance with law without being
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influenced by the observations made hereinabove.
11. A request is made by the learned counsel for
respondent No.1 that the trial be expedited. As the
complaint is of the year 2014, the request made appears to
be reasonable and deserves consideration. Learned Special
Judge is requested to expedite the trial.
12. The writ petition is accordingly allowed and disposed
of in the above terms.
(M. S. KARNIK, J.)
Signed by: Darshan Patil
Designation: PA To Honourable Judge
Date: 05/01/2024 13:26:18
