Madras High Court

Muthukrishnan vs The District Collector on 23 June, 2023

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                                   BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  Dated: 23/06/2023

                                                         CORAM:

                                        THE HON'BLE MR JUSTICE G.ILANGOVAN

                                              WP(MD)No.10747 of 2023
                                                        and
                                         WMP(MD)Nos.9459 and 9460 of 2023

                     Muthukrishnan                                     : Petitioner

                                                            Vs.

                     1.The District Collector,
                       Office of the District Collector,
                       Pudukkottai District.

                     2.The Superintendent of Police,
                       Office of the Superintendent of Police,
                       Pudukkottai District.

                     3.The State through
                       The Deputy Superintendent of Police,
                       Office of the Deputy Superintendent of Police,
                       Crime Branch CID,
                       Trichy Range,
                       Trichy.

                     4.The Inspector of Police,
                       Office of the Inspector of Police,
                       Vellanur Police Station,
                       Pudukkottai District.

                                  Prayer: Writ Petition has been filed under Article
                     226 of the Constitution of India, to issue a Writ of
                     Certiorarifiled            Mandamus,    to   call    for     the   records
                     connected           with      the      impugned     communication      in
                     D.No.129/2023,         dated    18.04.2023    issued    by   the   Hon'ble
                     Special Session's Judge, Special Court for Trial of SC/ST




https://www.mhc.tn.gov.in/judis
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                     Act cases, Pudukkottai and quash the same as illegal,
                     consequently,          direct    the       respondent    No.3   for   not    to
                     compel the petitioner to undergo DNA Test in accordance
                     with law within the time stipulated by this court.


                                  For Petitioner            :    Mr.R.Alagumani

                                  For Respondents           :    Mr.N.Nambiselvan
                                                                 Additional Public Prosecutor


                                                        O R D E R

The writ petition has been filed seeking quashment

of the impugned communication in D.No.129/2023, dated

18.04.2023 issued by the Special Sessions Judge, Special

Court for Trial of SC/ST Act cases, Pudukkottai and

consequently, direct the respondent No.3 not to compel

the petitioner to undergo DNA test.

2.The right to privacy is protected as an intrinsic

part of the right to life and personal liberty under

Article 21 and as a part of the freedoms guaranteed by

Part III of the Constitution.

- The Hon'ble Supreme Court in K.S.Puttaswamy Vs. Union of India (2017)10 SCC 1.

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3.This petitioner wants to invoke the above said

decision of the Hon'ble Supreme Court in this matter

stating that his right to life, liberty and privacy of

is impinged by way of this administrative communication.

4.Challenging the communication made by the Special

Court to the Assistant Professor, Government Medical

College and Hospital, Pudukkottai, to conduct DNA test of

11 persons, this writ petition has been filed.

5.The facts need not be elaborated. Suffice to say

that a case in Crime No.1 of 2023 was registered for the

offences under section 277, 328 IPC and sections 3(1)(b),

3(1)(x), 3(2)(va) of the SC/ST (Prevention of Atrocities)

Act, 1989, when the faeces of human found in an overhead

water tank located in Vengaivayal.

6.During the course of investigation, the

Investigating Officer made request to the Special Court

to address the Assistant Professor, Government Medical

College and Hospital, Pudukkottai, for conducting DNA

test. The above said request was complied by the Special

Court and in pursuance of the above said request, the

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Assistant Professor, Government Medical College and

Hospital, Pudukkottai, also conducted DNA test. Some of

them appeared, subjected themselves to the test and some

of them did not. One among the objectors is the

petitioner herein.

7.At the time of hearing, the learned counsel

appearing for the petitioner would submit that without

properly following the procedure namely natural justice,

the above said communication has been sent, which

according to him, intrusion to his privacy under Article

21 of the Constitution of India. The second contention

was that the Investigating Agency poised to implead or

frame or fix this petitioner as one of the accused in the

above said crime. So, according to him, it also violated

Article 20(3) of the Constitution of India. On these twin

grounds, this petition has been filed.

8.Whether any judicial order was passed by the

Special Court on the request made by the Investigating

Officer, a report was called for from the concerned

Special Court. The report reads that on the basis of the

request made by the Investigating Officer, the above said

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request was made to the Department. But no judicial order

was passed in that matter. Except the above said

communication, no other materials are available in the

file, as seen from the Special Court. So, it is seen that

the above said request made by the Investigating Officer

was taken on its administrative side and communication

has been sent.

9.When the right of an individual is involved, the

Special Court ought to have taken proper proceedings.

This is the first mistake or irregularity that has been

committed by the Special Court in entertaining the above

said letter of request on the administrative side. The

second is that because of the above said mistake or

irregularity, objection or consent of this petitioner as

well as others were not ascertained. This is the issue

involved here.

10.When this issue was raised before this court, I

told the learned counsel appearing for the petitioner

that if there is any procedural irregularity, it will be

taken care of by this court by giving direction to the

Special Court. But I enquired him, why he is shying away

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from the investigation, which is scientifically

undertaken by the Special Team, when no other clues are

available. For which, he would submit that he will

convince the Special Court with relevant facts and

circumstances, as to why, they should not be subjected to

undergo DNA test. As mentioned earlier, he would also say

that he is apprehending that the Special Team is going to

fix him.

11.Here comes the contradicting interest of the

State and individual. When such contradicting interests

come, what sort of test must be undertaken has been laid

down by the Hon'ble Supreme Court in the case of

K.S.Puttaswamy and another Vs. Union of India and others

(2017)10 SCC 1.

12.Let me extract the above said passage:-

"Principle of Proportionality and legitimacy The concerns expressed on behalf of the petitioners arising from the possibility of the State infringing the right to privacy can be met by the test suggested for limiting the discretion of the State:

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(i)The action must be sanctioned by law;

(ii)The proposed action must be necessary in a democratic society for a legitimate aim;

                                              (iii)The             extent                 of       such
                                      interference        must          be    proportionate            to
                                      the need for such interference;


                                              (iv)There           must          be         procedural
                                      guarantees          against            abuse          of     such
                                      interference.


                                  13.After    passing     of the above said judgment, the

                     Government          of    India,        enacted          the         Criminal      Procedure

(Identification) Act, 2022. The object and reasoning of

the above said Act may be extracted herein:-

                                              "An   Act      to    authorise              for    taking
                                      measurements         of       convicts              and     other
                                      persons          for          the          purpose               of
                                      identification              and        investigation             in
                                      criminal       matters             and         to        preserve
                                      records       and      for         matters           connected

therewith and incidental thereto."

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14.Now, we will straightaway go to section 5 of

the Act, which would run thus:-

"5.Power of Magistrate to direct a person to give measurements.-Where the Magistrate is satisfied that, for the purpose of any investigation or proceeding under the Code of Criminal Procedure, 1973 (Act 2 of 1974) or any other law for the time being in force, it is expedient to direct any person to give measurements under this Act, the Magistrate may make an order to that effect and in that case, the person to whom the order relates shall allow the measurements to be taken in conformity with such directions."

15.The word 'measurements' is defined in section

2(b) of the Act, which would run thus:-

                                             "(b)"measurements"                    includes
                                       finger-impressions,                       palm-print
                                       impressions,      foot-print            impressions,
                                       photographs,     iris       and        retina   scan,

physical, biological samples and their analysis, behavioural attributes including signatures, handwriting or

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any other examination referred to in Section 53 or Section 53-A of the Code of Criminal Procedure, 1973 (Act 2 of 1974)."

16.Rules were also framed by the Government on 19th

September' 1992, called 'The Criminal Procedure

(Identification) Act, 2022, as to how, the above said

test must be undertaken and what will be the effect if

the person ordered to undergo DNA test refuses and

resists.

17.The above Act may be made applicable to the

present case also. The Special Court can take pretrial

process also in such matters, since there is no express

or implied bar.

18.Even though, section '5' gives complete power to

the Magistrate that power must be exercised in a judicial

manner. There must be subjective satisfaction expressed

by the Magistrate in the judicial Order. The above said

subjective satisfaction of the Magistrate must also be

subject to the test, that has been laid down by the

Hon'ble Supreme Supreme in the famous case

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K.S.Puttaswamy. All these things must be taken care by

the Hon'ble Special Court.

19.Without going into the merits of the matter and

other things, whether this will amount to self

incrimination and the petitioner can be compelled to

undergo DNA test are all the matters to be taken into

account, as provided under section 5 of the Special Act

at the time of hearing by the Special Court.

20.So, I am of the considered view, this matter can

be disposed of by giving the following directions:-

(i)Let a fresh petition be filed by the

Investigating Officer in a proper manner

before the Special Court making request.

(ii)The above said petition must be

processed and notice/summon must be issued

to the respondents. After hearing them, the

judicial order must be passed by the Special

Court.

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(iii)The above said process shall be

completed within a period of 15 days from

the date of filing of the petition by the

Investigating Officer before the Special

Court. But this will not affect the DNA

test, which was already undertaken and the

report already received. The same procedure

may also be followed by the Special Court

also, if any new request comes from the

Investigating Officer, in future.

21.With the above said directions, this writ