Malappa @ Malingaraya vs The State Of Karnataka
2021 Latest Caselaw 5881 Kant

                           1


           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH
                                                    R
       DATED THIS THE 10TH DAY OF DECEMBER 2021

                        BEFORE

         THE HON'BLE MR. JUSTICE H.P.SANDESH

        WRIT PETITION No.201162/2021 (GM-RES)

BETWEEN:

MALAPPA @ MALINGARAYA,
S/O VEERESH KAVITAL,
AGE: 26 YEARS,
OCC: AGRICULTURIST,
R/O GONWAR VILLAGE,
TQ: SINDHANUR,
DIST: RAICHUR-585401.                    ...PETITIONER

          (BY SRI MAHANTESH PATIL, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA,
       REP. BY ADDL. SPP,
       HIGH COURT OF KARNATAKA,
       KALABURAGI BENCH - 585 107.
       (THROUGH BALAGNUR P.S.,
       TQ: SINDHANUR,
       DIST: RAICHUR-584101.

2.     NINGAMMA,
       D/O ALLAYYA,
       AGE: 28 YEARS,
       OCC: AGRICULTURE,
       R/O GONWAR VILLAGE,
       TQ: SINDHANUR,
       DIST: RAICHUR-584101.           ...RESPONDENTS

       (BY SRI GURURAJ V. HASILKAR, HCGP FOR R-1)
                                  2

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C. PRAYING THIS COURT TO ISSUE A
WRIT IN THE NATURE OF CERTIORARI TO QUASH THE
IMPUGNED ORDER DATED 04.01.2017 AND 05.01.2017 VIDE
ANNEXURES-E AND F PASSED BY THE LEARNED I ADDL.
JMFC,     SINDHANUR      IN     CRIME    NO.142/2016
(S.C.NO.61/2018) IN THE INTEREST OF JUSTICE AND
EQUITY AND ETC.

    THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 18.11.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                           ORDER

This petition is filed under Article 226 of the

Constitution of India read with Section 482 of Cr.P.C.

praying this Court to:

(i) issue a writ in the nature of certiorari to quash the impugned order dated 04.01.2017 and 05.01.2017 vide Annexures-E and F passed by the learned I Additional JMFC, Sindhanur in Crime No.142/2016 (S.C.No.61/2018);

(ii) issue a writ in the nature of certiorari to quash the DNA profile report bearing No.FSL/197/DNAC/8/2017 dated 27.02.2017 vide Annexure-H and final opinion dated 30.03.2017 issued by the Medical Officer, Sindhanur vide Annexure-J;

(iii) issue such other writ or order or direction as this Court deems fit in the circumstances of the case.

2. The factual matrix of the case is that the police

based on the complaint given by the victim, who has been

arraigned as respondent No.2 herein, have registered a

case in Crime No.142/2016 against the petitioner for the

offences punishable under Sections 504, 506, 417 and 376

of IPC. The complainant in the complaint vide Annexure-B

dated 04.10.2016 alleged that on 05.03.2016, this

petitioner went to her house and called her to coolie work

in his land and took her at around 9.30 a.m. and when

both were working in the land at 3.00 p.m. he told her that

he would marry her and called her to have sexual

intercourse and when she refused that she will not allow

him till he marries her and that if the said fact is known to

the family they are going to scold her. But he did not heed

to her request and forcibly committed rape on her and

threatened not to reveal the same to her family members

and if she reveals the same, he will take away the life and

as a result, she kept quiet. The petitioner repeated the

same whenever he took her to work at his land 3-4 times

and every time he was causing life threat and hence she

did not reveal anything. The family members noticed her

body development and she revealed that due to forcible

intercourse by the petitioner, she became pregnant. When

the family members enquired this petitioner and told him

to marry her, he tried to avoid and every time he was

escaping from their family members. When her parents

went to the house of the accused and enquired again, he

questioned that why they are questioning him, what

evidence they are having that her daughter became

pregnant due to the act of the petitioner and abused in a

filthy language and in a rude manner. In the meanwhile,

she became seven months pregnant. Hence, she lodged a

complaint and the police after registration of the case,

investigated the matter and filed the charge sheet against

the accused for the above offences.

3. The prosecution also filed an application before

the Magistrate to conduct the DNA test in terms of

Annexure-C dated 27.10.2016 reiterating the averments of

the complaint and requested that in order to know the

truth, it is necessary to conduct the DNA test since other

witnesses have also given the statement in consonance

with the allegations of the victim. The victim was also

subjected to medical examination and she gave statement

before the Magistrate under Section 164 of Cr.P.C. and the

accused is in custody. The copy of the application was also

furnished to the accused and the accused filed objection

statement in terms of Annexure-D and in the objection

statement, he contends that he is an innocent and

conducting of the DNA test of the accused is not tenable in

the eye of law. It is further contended that the victim has

already married one Siddappa and there is no justification

to draw the blood sample of the accused for DNA test. In

the meanwhile, the Investigating Officer filed requisition

submitting that the infant of the victim is reported to be

dead on 07.12.2016 at 3.50 a.m. at Shankara Hospital,

Sindhanur and requested that proper investigation is

necessary and as to identify the DNA of the deceased baby

boy, sought a direction to direct the Chief Medical Officer

('CMO' for short) to extract the relevant portion of the

body of the deceased boy for conducting the test for

identifying the DNA. The Court having received the

requisition, comes to the conclusion that the identification

of the DNA of the deceased boy is very much necessary for

investigation. The requisition was allowed and further

directed the CMO to take relevant extract from the body of

the infant and also directed to conduct the DNA test and

facilitate for the same and the CMO was directed to

forward the samples or report through the Investigating

Officer to FSL, Bengaluru for conducting DNA test forthwith

without any delay.

4. One more application was given to the Court

on 07.12.2016 in terms of Annexure-D1, reiterating the

grounds urged in the earlier application and also the

subsequent development of the death of the infant and

sending the extract of the infant for DNA test. In order to

determine whether the petitioner was the biological father

of the infant, which is dead, it is necessary to permit the

Investigating Officer to draw the blood sample and

accordingly ordered to put up the application and that on

04.01.2017, based on the application, the learned

Magistrate considering the grounds urged in the

application and also the offences which has been alleged

against the petitioner herein taken note of the offences

punishable under Section 376 of IPC and also taken note of

the fact that the victim was conceived and the accused has

denied the alleged relationship, found that for the proper

investigation as to find out the paternity of the infant, it is

necessary to consider the request and the accused

objected the same through the counsel. The Court

ordered for collection of blood sample of the accused for

DNA test, which is very much helpful for proper

investigation and the said test will not in any way cause in

justice to the accused. The CMO, Sindhanur, was directed

to be present before the Court to draw the blood sample of

the accused and further directed the CMO that after

drawing the blood sample should hand over the same to

the Investigating Officer in a sealed cover for further

action and the Investigating Officer after receiving the said

sealed blood sample should submit to the FSL for DNA test

and accordingly as per the direction, the CMO appeared

before the Court. The accused was also present before the

Court and he was enquired (in camera) and it is brought to

the notice of the accused regarding the drawing of the

blood sample. The accused consented the same. The

Investigating Officer also sought permission to draw the

panchanama with regard to the drawing of the blood and

panchanama was drawn and the CMO after collecting the

blood sample, sealed it and handed over it to the

Investigating Officer and the report was awaited.

Subsequently, the FSL report is received in terms of

Annexure-H, wherein it is opined that the humerus bone

and femur bone sent in item Nos.1 and 2 respectively, are

of human origin and of male sex and DNA profile of dead

male baby from whom the humerus and femur bones were

collected and sent it in item Nos.1 and 2 is consistent with

having come from the offspring of Malappa @ Malingaraya

S/o Veeresh, sample blood sent in item No.3 and given the

opinion that the petitioner is the biological father of the

infant who died immediately after the birth. This report is

dated 27.02.2017.

5. The present petition is filed on 31.05.2021

seeking a writ of certiorari to quash the order subjecting

the petitioner for DNA test and also sought to quash the

report. In the petition, the main grounds urged by the

petitioner before this Court is that the very order dated

04.01.2017, 05.01.2017 and the DNA report dated

27.02.2017 and final opinion dated 30.03.2017, which are

extracted as Annexures-E, F, H and J are against the

principle of natural justice and violative of Article 20(3) of

the Constitution of India. It is contended that the

petitioner was never consented to undergo DNA profiling

and for that purpose to give his blood sample. The

petitioner filed objections to the requisition for drawing the

sample for the purpose of DNA by the Investigating

Officer. Thereafter, one more requisition was filed for

drawing the blood sample from the petitioner and the

learned Magistrate without following the procedure

contemplated under Section 164 of the Cr.P.C., which also

resulted in violation of Article 20(3) of the Constitution of

India, ordered to draw the blood sample. The impugned

orders are not reasoned orders. There is nothing to show

that the accused was heard in the matter by explaining the

consequence of the consent given by him for drawing the

blood sample and there is no satisfaction or application of

judicious mind with respect to the voluntariness of the

petitioner in giving consent for drawing the blood sample.

Hence, the entire process is unfair and violative of

fundamental right of fair trial. The DNA report is having

serious consequences and so the consent of the accused,

must be free from force and undue influence and hence, it

requires interference of this Court by exercising the powers

under Article 226 of the Constitution of India read with

Section 482 of Cr.P.C.

6. The learned counsel for the petitioner

reiterated the grounds urged in the petition contending

that Section 164 of Cr.P.C. has not been complied and the

Court cannot entertain such an application subjecting him

for DNA test. The learned counsel also submits that the

petitioner was not explained the consequences of drawing

the blood sample. The learned counsel would submit that

Section 53A of Cr.P.C. only confers the powers, but the

same has to be subject to other provisions and there is no

any specific provision under the Cr.P.C. for drawing of the

blood samples for DNA test. The learned counsel submits

that permission was given on the second application and

no order was passed on the first application and when such

being the case, it requires to be set aside.

7. The learned counsel for the petitioner in

support of his arguments relied upon the judgment of the

Apex Court in the case of SELVI AND OTHERS v. STATE

OF KARNATAKA reported (2010) 7 SCC 263 and

brought to the notice of this Court paragraph No.167 of

the judgment and contend that contentious provision is the

explanation to Section 53 Cr.P.C. (amended in 2005). It

has been contended that the phrase "modern and scientific

techniques including DNA profiling and such other tests"

should be liberally construed to include the impugned

techniques. It is further observed that with the

development of newer technologies, their use can be

governed by older statutes which had been framed to

regulate the older technologies used for similar purposes.

The learned counsel referring this judgment would contend

that subjecting the petitioner for DNA test without the

consent amounts to violation of Article 20(3) of the

Constitution of India.

8. The learned counsel also relied upon the

judgment of the Apex Court dated 01.10.2021 passed in

Civil Appeal No.6153/2021 in the case of ASHOK

KUMAR v. RAJ GUPTA AND OTHERS, wherein it is held

that when the defendants sought for conducting the DNA

test to establish a biological link, the Trial Court rightly

dismissed the application observing lack of consent by the

plaintiff. But the High Court reversed the same. The Apex

Court comes to the conclusion that in a declaratory suit

where ownership over co-parcenary property is claimed,

the plaintiff, against his wishes, can be subjected to DNA

test and held that cannot compel the plaintiff to adduce

further evidence in support of the defendants' case. It is

further observed that when the plaintiff is unwilling to

subject himself to the DNA test, forcing him to undergo

one would impinge on his personal liberty and his right to

privacy and set aside the order of the High Court. The

learned counsel referring this judgment would contend that

the judgment of the Apex Court is aptly applicable to the

case on hand.

9. The learned counsel relied upon the unreported

judgment of this Court dated 16.07.2014 passed in

Crl.RP.No.100148/2014, wherein this Court discussed

the principles laid down in the judgment reported in 2014

Crl.L.J. 82 in the case of Anjanappa v. State of

Karnataka and also discussed the judgment of the Apex

Court reported in (2010) 8 SCC 633 in the case of

Bhabani Prasad Jena v. Convenor Secretary, Orissa

State Commission for Women and extracted paragraph

Nos.19, 21, 22 and 23 and so also relied upon the

judgment of this Court reported in ILR 2004 KAR 2637 in

the case of H.M.Prakash @ Dali v. State of Karnataka

and having considered the principles laid down in the

judgment, this Court comes to the conclusion that the

Sessions Judge has to make all his endeavour to secure

the presence of the victim lady and ascertain as to whether

she is ready and willing for the to DNA test and thereafter

the learned Sessions Judge has to pass appropriate order

and without securing the presence of the victim lady, the

order has been passed and hence set aside the order and

restored the application and directed the learned Sessions

Judge to dispose of the application in accordance with law

and bearing in mind the observations made.

10. The learned counsel also relied upon the

Division Bench judgment of this Court dated 03.09.2021

passed in Crl.A.No.227/2020 c/w Crl.R.C.No.2/2020

and brought to the notice of this Court paragraph No.26,

wherein it is discussed with regard to the serious infraction

of right to privacy of the accused in the matter of

prosecution having ventured to draw blood for the purpose

of conducting the DNA test referring the judgment of the

Apex Court in the case of Selvi (supra).

11. The learned counsel also relied upon the order

of this Court dated 29.08.2019 passed in

W.P.No.203348/2019, wherein this Court with regard to

when an application is filed under Section 164A of Cr.P.C.

or subjecting CW1, her child and himself for DNA test

referring Section 164A of Cr.P.C. and also Article 20(3) of

the Constitution of India comes to the conclusion that

there is nothing to show that the accused was heard in the

matter, let alone explaining the consequences of the

application. He was not even questioned whether he has

filed such an application voluntarily and hence set aside

the order and directed to hear the petitioner on the

application filed under Section 164A of Cr.P.C.

12. Per contra, the learned High Court Government

Pleader appearing for respondent No.1-State would

vehemently contend that with the consent of the accused

only, blood sample was drawn, that too in the Court itself

and the learned Magistrate before permitting to draw the

blood sample of the petitioner, enquired the accused (in

camera) and explained the scope of drawing of the blood

sample and thereafter after obtaining the consent only,

blood was drawn. The Investigating Officer also drawn the

mahazar for having followed the procedure. The learned

Magistrate applied his judicious mind and in compliance

with Sections 53 and 53A of Cr.P.C., directed the CMO to

follow the procedure in drawing the blood sample and after

drawing the same to keep it in a sealed cover and entrust

the same to the Investigating Officer and also given

direction to the Investigating Officer to send the same to

the FSL forthwith. The learned counsel would submit that

blood was drawn on 05.02.2017 itself and the report was

received within a span of one and half month and this

petitioner kept quiet even though report was received in

2017 itself, stating that the petitioner is the biological

father of the male child which was born to the victim and

after lapse of four years he has come up before this Court

invoking the writ jurisdiction contending that it violates

Article 20(3) of the Constitution of India. When the

procedure has been followed and with the consent of the

petitioner only blood was drawn and report was received,

after four years of the receipt of the report, the petitioner

has approached the Court, that too when the report comes

against him and hence there is no merit in the petition to

invoke Article 226 of the Constitution of India read with

Section 482 of Cr.P.C.

13. Having heard the learned counsel for the

petitioner as well as the learned High Court Government

Pleader and also considering the factual matrix of the case

and also the grounds urged in the petition, the following

points arise for the consideration of this Court:

(i) Whether the drawing of the blood sample amounts to self-incrimination which violates Article 20(3) of the Constitution of India as contended by the petitioner?

(ii) Whether the petitioner has given consent to undergo DNA profiling to give the blood sample and the same is obtained without following the procedure contemplated under Section 164 of the Cr.P.C. as contended, which resulted in

violation of Article 20(3) of the Constitution of India?

(iii) Whether the learned Magistrate has applied his judicious mind with respect to the voluntariness of the petitioner in giving consent for drawing the blood sample and whether the entire process followed by the Magistrate is violative of the fundamental right of fair trial as contended?

      (iv)     What Order?


Point Nos.(i) to (iii):

14. Having heard the learned counsel for the

petitioner and also the grounds urged in the petition, the

first and foremost count of argument before the Court is

whether the drawing of the blood sample is in violation of

Article 20(3) of the Constitution of India and whether it

amounts to self-incrimination as contended by the

petitioner. The learned counsel for the petitioner has

relied upon the judgment of the Apex Court in the case of

Selvi (supra) and brought to the notice of this Court that

the Apex Court has observed that it violates Article 20(3)

of the Constitution of India and it amounts to self-

incrimination. On entire reading of the judgment of the

Apex Court, the Apex Court having considered the

contentions raised in the said matter, in detail discussed

Articles 21 and 20(3) of the Constitution of India and also

taken note of explanation (a) to Section 53 of Cr.P.C. and

difference between the DNA profile and DNA sample and

uses of DNA profile and elaborately discussed the same,

particularly in paragraph No.165 extracted Section 53 of

Cr.P.C. regarding examination of the accused by medical

practitioner at the request of police officer and also taken

note of Section 53A and Section 54 of Cr.P.C. and in

paragraph No.166 having considered the proviso, it has

been clarified that it is within the powers of a Court to

direct such a medical examination on its own. Such an

examination can also be directed in respect of a person

who has been released from custody on bail as well as a

person who has been granted anticipatory bail. It is

further discussed that Section 53 of Cr.P.C. contemplates

the use of 'force as is reasonably necessary' for conducting

a medical examination. It is further observed that this

means that once a Court has directed the medical

examination for a particular person, it is within the powers

of investigators and examiners to resort to a reasonable

degree of physical force for conducting the same.

15. In paragraph No.167 of the judgment

discussed with regard to phrase "modern and scientific

techniques including DNA profiling and such other test"

should be liberally construed to include the impugned

techniques. Having discussed Sections 53 and 53A of

Cr.P.C. while summing up with regard to the DNA test, in

paragraph No.220 observed that in the present case, the

written submissions made on behalf of the respondents

have tried to liken the compulsory administration of the

impugned techniques with the DNA profiling technique. In

light of this attempted analogy, we must stress that the

DNA profiling technique has been expressly included

among the various forms of medical examination in the

amended explanation to Section 53 of Cr.P.C. It must also

be clarified that a "DNA profile" is different from a DNA

sample which can be obtained from bodily substances. A

DNA profile is a record created on the basis of DNA

samples made available to the forensic experts. Creating

and maintaining DNA profiles of offenders and suspects are

useful practices since newly obtained DNA samples can be

readily matched with the existing profiles that are already

in the possession of the law enforcement agencies. The

matching of DNA samples is emerging as a vital tool for

linking suspects to specific criminal acts and further held

that the taking and retention of DNA samples, which are in

the nature of physical evidence does not face constitutional

hurdles in the Indian context. However, if the DNA

profiling technique is further developed and used for

testimonial purposes, then such uses in the future could

face challenges in the judicial domain. Having considered

the principles laid down in the judgment referred supra,

the Court has to take note of the facts of each case and in

that case, it is observed that the respondents have tried to

liken the compulsory administration of impugned

techniques with the DNA profiling technique, but not in the

case on hand.

16. This Court also would like to rely upon the

judgment of the Apex Court in the case of STATE OF

BOMBAY v. KATHI KALU OGHAD reported in AIR 1961

SC 1808, wherein it is held that in majority decision by

use of material sample such as finger prints for the

purpose of comparison and identification held that it does

not amount to a testimonial act for the purpose of Article

20(3) of the Constitution of India.

17. In the case on hand, first of all, it is the

specific case of the victim that the petitioner took her to

his land for work and both of them done the work from

9.00 a.m. to 3.00 p.m. and at 3.00 p.m. he subjected her

for sexual act as against her wish and caused life threat

not to disclose the same and then she became pregnant.

The family members noticed the bodily development of the

victim and then she revealed the same. It has to be noted

that when the victim was seven months pregnant, a

request was made in the month of October for DNA test

and on 07.12.2016, the victim gave birth to a child, which

was dead and hence the DNA test permission was sought

from the Court and permission was given and sent for FSL

and simultaneously an application was given to the Court

and after giving the application almost after one month, an

order has been passed. It is also clear that the accused

was secured and he was enquired in camera, and the

Magistrate has explained the consequences and then only

he gave the consent and the same is mentioned in the

order sheet and the procedure was followed. The

Magistrate in compliance of Section 53 and 53A of Cr.P.C.

directed the CMO to draw the blood in accordance with law

and directed to handover the same in a sealed cover to the

Investigating Officer and the Investigating Officer also

drawn the panchanama to that effect and thereafter the

blood sample which was drawn was sent to the FSL. The

FSL report was also received within one and half month

i.e., in the month of February itself in terms of Annexure-H

dated 27.02.2017 and the report was received that this

petitioner being the biological father and source of DNA of

the dead male baby from the whom the humerus and

femur bones were collected and sent in item Nos.1 and 2

respectively, matches with the blood sample of this

petitioner. It has to be noted that the report was received

in the year 2017 itself in the month of March though it is

dated 27.02.2017 and having the knowledge of the same,

the petitioner kept quiet for a period of four years and

after lapse of four years approached this Court. Having

considered the facts and circumstances of the case, it is

not compulsorily drawn the blood sample to apply the

modern scientific method and techniques as observed by

the Apex Court in the case of Selvi case. Hence, the said

judgment is not applicable to the case on hand.

18. The learned counsel also relied upon the recent

judgment of the Apex Court in the case of Ashok Kumar

(supra), wherein DNA test is sought for in a declaratory

suit and hence the Apex Court comes to the conclusion

that when the plaintiff is unwilling to subject himself to

DNA test, forcing him to undergo one would impinge on his

personal liberty and his right to privacy and rejected the

prayer and hence the facts and circumstances of the case

on hand is different from the facts of this case. Hence, the

said judgment is also not applicable to the case on hand.

19. The learned counsel relied upon the unreported

judgment of this Court dated 16.07.2014 passed in

Crl.RP.100148/2014, wherein facts of the case is different

and victim lady was not even asked as to whether she is

willing to give blood sample or not and even she has not

been secured and ascertained as to whether she is ready

and willing for DNA test. Hence, this Court set aside the

order and the same is also not applicable to the facts of

the case on hand.

20. The learned counsel also relied upon the

Division Bench judgment of this Court dated 03.09.2021

passed in Crl.A.No.227/2020 c/w Crl.RC.No.2/2020

(supra) wherein the Division Bench in detail not discussed,

but only comes to the conclusion that there has been a

serious infraction of right to the privacy of the accused in

the matter of prosecution having ventured to draw the

blood for the purpose of conducting DNA test and relied

upon the judgment of Selvi case (supra). But the facts of

the case on hand is different and hence the same is also

not applicable to the case on hand.

21. The learned counsel relied upon the decision of

this Court dated 29.08.2019 passed in

W.P.No.203348/2019, wherein this Court has observed in

paragraph No.12 that there is nothing to show that the

accused was heard in the matter, let alone explaining the

consequences of the application. He was not even

questioned whether he has filed such application

voluntarily. In the said case, the very accused himself has

filed an application to keep C.W.1 present and child and

subject him for DNA test. Hence, the Court allowed the

petition and set aside the order and directed to consider

the matter afresh. But the facts of the case on hand is

different.

22. This Court would like to refer the judgment of

the Apex Court consisting of 11 Judges in the case of

Kathi Kalu Oghad (supra) with regard to the scope and

ambit of the investigation with regard to whether it affects

the privacy of an accused in conducting the investigation,

wherein the Apex has held that self-incriminatory

information given by the accused without compulsion does

not amount to violation of Article 20(3) of the Constitution

of India. If the self-incriminatory information has been

given by an accused person without any threat, that will

not be hit by the provisions of Clause (3) of Article 20 of

Constitution of India for the reason that there has been no

compulsion. The Apex Court in paragraph No.10 has held

that the taking of impressions of parts of the body of an

accused person very often becomes necessary to help the

investigation of a crime. It is as much necessary to

protect an accused person against being compelled to

incriminate himself, as to arm the agents of law and the

law courts with legitimate powers to bring offenders to

justice.

23. This Court would also like to refer to the

decision of this Court in the case of H.M. Prakash @ Dali

(supra), wherein discussed with regard to Section 53 of

Cr.P.C. i.e., prior to the amendment and also discussed

whether an order directing taking of blood sample from the

accused for DNA analysis is in violation of Article 20(3) of

the Constitution of India. It is held that 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 of blood sample of an accused, he is

compelled to be a witness against himself and such an

order will not offend against Article 20(3) of the

Constitution of India. It is further held that there is

nothing brutal or offensive or shocking in taking the blood

sample under the protective eye of law. The constitutional

mandate does not say that no person shall be deprived of

his right or personal liberty under any circumstances. On

the contrary, if such deprivation of right or personal liberty

is in accordance with the procedure established by law, the

same does not violate Article 21 of the Constitution of

India.

24. This Court would also like to rely upon the

judgment of the Apex Court in the case of BANARSI

DASS v. TEEKU DUTTA AND ANOTHER reported in

(2005) 4 SCC 449, wherein with regard to DNA test to

determine paternity, the Apex Court has held that DNA

test is not to be directed as a matter of routine; it is to be

directed only in deserving cases. Hence, it is clear that

ordering for DNA itself should not be as a matter of routine

but wherein deserving cases, the Court can direct for DNA

test and there is no prohibition for ordering DNA test and

the same is subject to each facts and circumstances of the

case.

25. This Court would also like to rely upon the

judgment of the Apex Court in the case of DIPANWITA

ROY v. RONOBROTO ROY reported in (2015) 1 SCC

365, wherein the Apex Court discussed regarding Section

112 of the Evidence Act, birth during subsistence of

marriage, as proof of legitimacy and presumption as to,

under Section 112 of the Evidence Act, conclusive rebuttal

of, by DNA test. In this case, the husband took up the

contention that the wife was leading adulterous

relationship. To establish the said contention of paternity/

adultery, husband prayed the Court to order for DNA test.

The Apex Court in this judgment relying upon the

judgment in the case of NANDLAL WASUDEO BADWAIK

v. LATA NANDLAL BADWAIK reported in (2014) 2 SCC

576 held that, this Court has therefore clearly opined, that

proof based on a DNA test would be sufficient to dislodge a

presumption under Section 112 of the Evidence Act. The

Apex Court also referred to the judgment in the case of

Bhabani Prasad Jena (supra) and held that it is borne

from the decisions rendered by this Court that depending

on the facts and circumstances of the case, it would be

permissible for a Court to direct the holding of a DNA

examination to determine the veracity of the allegations

which constitute one of the grounds, on which the party

concerned would either succeed or loose. It is further

observed that it is not disputed that if the direction to hold

such a test can be avoided, it should be so avoided. The

reason is that the legitimacy of a child should not be put to

peril. The Apex Court in the said judgment held that DNA

test being an extremely delicate and sensitive aspect, a

direction for said test, held, can be given if a strong prima

facie and an eminent need is made out for such a course.

Cautious and judicious approach prescribed, considering

that such infringement on right to privacy, may not only

bed prejudicial to rights of the parties but may have

devastating effect on the child.

26. This Court would also like to rely upon the

judgment of the Apex Court in the case of K.S.

PUTTASWANY AND ANOTHER v. UNION OF INDIA

AND OTHERS reported in (2017) 10 SCC 1, wherein

elaborate discussion is made with regard to the right to

privacy being a basic fundamental right and detail

discussion was made in the judgment by nine judges and

taken note of the issue regarding right of privacy, wherein

the Apex Court held that right to privacy has been declared

a constitutionally protected right in India. The Court

should therefore examine the proportionality of the

legitimate aims being pursued, that is whether the same

are not arbitrary, discriminatory, whether they may have

an adverse impact on the person and that they justify the

encroachment upon the privacy and personal autonomy of

the person, being subjected to the DNA test. The same is

also discussed in the judgment in the case of Ashok

Kumar (supra). Having taken note of the principles of the

right to privacy, in paragraph No.15 held that DNA is

unique to an individual (barring twins) and can be used to

identify a person's identity, trace familiar linkages or even

reveal sensitive health information. But the question is

whether a person can be compelled to provide a sample for

DNA in such matters can also be answered considering the

test of proportionality laid down in the unanimous decision

of this Court i.e., in the judgment reported in the case of

K.S.Puttaswamy (supra).

27. Having considered the factual aspects of the

case and also the principles laid down in the judgments

referred supra, it is clear that prior to amending Section 53

of Cr.P.C. and explanation and Section 53A, there was no

specific provision for conducting DNA test and it was a

practice and having felt the difficulties of the Investigating

Officer in unearthing the truth, the parliament felt that it is

necessary to bring an amendment and hence amendment

was brought in 2005 by Act 25/2005 substituting the

explanation which came to effect from 23.06.2006 in

respect of Sections 53A and 54 of Cr.P.C. i.e.,

examination by registered medical practitioner. In the

explanation it is made clear regarding examination is

concerned that it shall include the examination of blood,

blood stains, semen, swabs in case of sexual offences,

sputum and sweat, hair samples and finger nail clippings

by use of modern and scientific techniques including DNA

profiling and such other tests which the registered medical

practitioner thinks necessary in a particular case. The

other amendment is also brought in the very same Act.

Section 53A examination of person accused of rape by

medical practitioner, wherein the offence on a person is

arrested on a charge of committing an offence of rape or

an attempt to commit rape and there are reasonable

grounds for believing that an examination of his person will

afford evidence as to the commission of such offence, it

shall be lawful for a registered medial practitioner

employed in a hospital, acting at the request of the police

officer not below the rank of a Sub-Inspector, and for any

person acting in good faith in his aid and under his

direction, to make such an examination of a arrested

person and to use such force as is reasonably necessary

for that purpose. A specific amendment is made to

explanation 53 and also an amendment is brought

inserting Section 53A. No doubt under Section 164A of

Cr.P.C., a proviso is inserted - Medical examination of the

victim of rape and what the report should contain on

examination also particulars are given and explanation is

also same that for the purpose of the said Section,

"examination" and "registered medical practitioner" shall

have same meanings as in Section 53.

28. The very contention of the petitioner before

this Court is that it amounts to self-incrimination and

subjecting him for drawing of blood sample in order to test

the paternity of the child amounts to violation of Article

20(3) of the Constitution of India and in view of the

principles laid down in the judgments referred supra, the

contentions of the petitioner cannot be accepted. The

other contention that no enquiry was held as contemplated

under section 164A of Cr.P.C. also cannot be accepted. I

have already pointed out that it is the specific case of the

victim that when she was on coolie work along with the

accused, he subjected her for sexual act against her wish

and also he promised to marry her and caused the life

threat not to reveal the same. When she became

pregnant, the parents have noticed the body development

and on enquiry only, she revealed the same and the

accused retorted that what evidence they are having to

say that on account of his act, she became pregnant. It

has to be noted that a requisition is made before the

learned Magistrate for DNA test and copy was served and

the accused also filed the objections and in the objections,

he has raised the contention that the victim had already

married one Siddappa and hence there is no need of DNA

test. But the fact is that on account of the act of the

accused, she became pregnant and she gave birth to a

child and the child died and extracts of the said child was

collected and the same was sent to the FSL.

29. One more fresh requisition was given wherein

the same grounds are reiterated which are urged in the

first application and the only change made is that a male

child was born and died and the same was sent to RFSL

and the fresh application was filed reiterating the earlier

grounds and subsequent development and based on the

said application, the learned Magistrate has considered the

request. It has to be noted that the learned Magistrate

has secured the accused and examined him (in camera)

and explained the consequences and thereafter he gave

the consent and the learned Magistrate directed the CMO

and also the Investigating Officer to follow the procedure

as laid down under Sections 53, 53A and 164A of Cr.P.C.

Only in compliance of the same and on the consent of the

accused, which has been recorded in the order sheet,

ordered to draw the blood sample. The CMO as well as the

Investigating Officer complied the relevant proviso and

procedure and sealed and sent the same to the RFSL and

the report was received in the month of March itself

though blood was drawn on 05.01.2017. I have already

pointed out that this present petition is filed after lapse of

four years of receipt of the DNA report, wherein report is

specific that the petitioner is the biological father of the

child, which was born to the victim. It is clear that when

the report came against him, he approached this Court by

filing this petition, that too belatedly after four years of the

report and all the procedures have been followed by the

CMO as well as Investigating Officer. The learned

Magistrate has applied the judicious mind and having

considered Sections 53 and 53A of Cr.P.C. and in

compliance of Section 164A of Cr.P.C., an order has been

passed. Hence, I do not find any error committed by the

learned Magistrate in ordering for DNA test. The DNA test

is also available before the Court, which is marked as

Annexure-H and only in order to overcome the positive

report of the DNA, the petitioner has approached this

Court by invoking the writ jurisdiction seeking the relief to

quash the order as well as the DNA report. The very

contention of the learned counsel for the petitioner that it

amounts to violation of Article 20(3) of the Constitution of

India and also in violation of procedure contemplated

under Section 164 of Cr.P.C. cannot be accepted. The

other contention that the learned Magistrate has not

applied his judicious mind in compliance of the procedures

and amounts to fundamental right of fair trial also cannot

be accepted. It is also important to note that the Apex

Court in the judgments referred supra comes to the

conclusion that if it impinges the paternity of the child, the

Court has to be very conscious while ordering for DNA test

and the said situation does not arise in the case on hand

for the reason that the child born to the victim is no more

and it will not be having any impact on the child as held by

the judgment of the Apex Court referred supra and in over

all no merit in the petition to exercise the powers under

Section 482 of Cr.P.C. Hence, I answer point Nos.(i) to

(iii) as negative.

Point No.(iv):

30. In view of the discussions made above, I pass

the following:

ORDER

The writ petition is dismissed.

Sd/-

JUDGE

MD