Madras High Court

Kanickaraj vs The Inspector Of Police on 23 April, 2025

                                                                                       Crl.R.C.(MD)No.283 of 2025

                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                           Reserved on              : 21.03.2025

                                           Pronounced on            : 23.04.2025

                                                         CORAM:

                                  THE HON'BLE MR.JUSTICE K.MURALI SHANKAR

                                           Crl.R.C.(MD)No.283 of 2025
                                                       and
                                           Crl.M.P.(MD)No.2839 of 2025


                    Kanickaraj                                                           ... Petitioner


                                                              Vs.


                    The Inspector of Police,
                    All Women Police Station,
                    Periyakulam,
                    Theni District.
                    (Crime No.268 of 2022)                                              ... Respondent

                    Prayer : This Criminal Revision Case filed under Sections 438 r/w 442
                    B.N.S.S., to call for the records pertaining to the order dated 15.10.2024
                    made in M.P.No.1 of 2024 in Special S.C.No.152 of 2023 on the file of
                    learned Sessions Judge, Principal Special Court for Exclusive Trial of
                    Cases under POCSO Act, Theni District and set aside the same and allow
                    the above criminal revision petition.



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                                                                                         Crl.R.C.(MD)No.283 of 2025




                                   For Petitioner        : Mr.G.Jeganathan

                                   For Respondent        : Mrs.M.Aasha
                                                           Government Advocate (Crl. Side)


                                                           ORDER

The Criminal Revision is directed against the order passed in

M.P.No.1 of 2024 in Spl.S.C.No.152 of 2023 dated 15.10.2024 on the file

of the Principal Special Court for Exclusive Trial of Cases under POCSO

Act, Theni, allowing the petition filed under Section 173(8) of the Code of

Criminal Procedure for further investigation.

2. On the basis of the complaint lodged by one Savithiri alleging

sexual assault against her minor daughter, FIR came to be registered in

Crime No.268 of 2022 against the petitioner herein for the alleged

offences under Sections 9(m) and 10 of the Protection of Children from

Sexual Offences (POCSO) Act, 2012. After completing the investigation,

the respondent police has filed the final report against the petitioner for the

alleged offences under Sections 5(m), 6, 9(m) r/w 10 of the POCSO Act

and Section 376(AB) IPC and the case was taken on file in Spl.S.C.No.

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152 of 2023 and is pending on the file of the Principal Special Court for

Exclusive Trial of Cases under POCSO Act, Theni.

3. It is not in dispute that when the trial was in part-heard stage, the

prosecution filed a petition under Section 173(8) Cr.P.C. seeking further

investigation alleging that DNA (Deoxyribonucleic acid) test was not at all

conducted.

4. The case of the prosecution is that on 08.07.2022 at about

06.00 p.m., when the defacto complainant's minor daughter aged about 10

years went for tuition, the petitioner, who was working as a watchman in

Seventh Day Adventist Matriculation Nursery and Primary School,

intercepted the victim child in front of the said school and took the victim

child to upstairs of the said school and committed an aggravated sexual

assault with the victim child and on coming to know about the occurrence

from the victim child, her mother lodged the police complaint.

5. The prosecution case, as projected in the petition filed under

Section 173(8) Cr.P.C., is that the Scientific Officer, Regional Forensic

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Science Laboratory (RFSL), Madurai has been examined as P.W.16 and

through him, Biology and Serological Reports came to be exhibited as

Ex.P.11 and Ex.P.12 respectively, that P.W.16 has given evidence that

semen was detected on Item No.1 gauze cloth and hence, the same was

forwarded to DNA Division RFSL, Madurai for DNA profiling, that they

came to know about the letter of the Deputy Director of RFSL, Madurai

dated 01.08.2024 that DNA typing results obtained for the Item No.1

gauze piece is kept in records of MDU/DNA/207/2022, that the

prosecution has then come to know that FTA (Flinders Technology

Associates) card was not at all collected from RFSL till date, that the

report of the DNA in MDU/DNA/207/2022 has to be compared with the

DNA of the accused, which is essential to prove the prosecution case and

to arrive at correct decision of the case and that since the investigating

agency has not taken steps to receive the FTA card from the Laboratory

and to collect the blood samples or semen from the accused, they were

constrained to file the above petition under Section 173(8) Cr.P.C.

6. The main contention of the petitioner is that no notice was given

to the petitioner in the petition filed for further investigation and that the

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learned Sessions Judge, without hearing the petitioner's side and without

giving any opportunity to oppose the petition for further investigation, has

passed the impugned order dated 15.10.2024 directing further

investigation.

7. No doubt, as rightly pointed out by the learned counsel appearing

for the petitioner, the petitioner was not given any notice in respect to the

petition in M.P.No.1 of 2024 nor was given any opportunity to oppose the

said petition.

8. Considering the above fact situation, this Court has afforded an

opportunity to the petitioner's side to raise objections with regard to the

petition filed under Section 173(8) Cr.P.C. for further investigation.

9. The learned counsel appearing for the petitioner would submit

that as per the evidence of P.W.16, blood and semen were collected from

the petitioner and the same was sent for chemical analysis, but without

considering the above aspects, the learned Sessions Judge has passed the

impugned order, that the Scientific Report has revealed that the result of

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grouping test is inconclusive and the said test is in favour of the petitioner

and that in order to deprive the right of defence of the petitioner, the

respondent police is trying to get the scientific report in their favour and

that too at the stage of examination of the investigating officer.

10. Since the trial was in part-heard stage and even according to the

prosecution, many witnesses came to be examined, the trial Court should

have given an opportunity to contest the petition in M.P.No.1 of 2024 but

the learned Sessions Judge, considering the grounds raised by the

prosecution and also taking note of the fact that blood sample of the

petitioner was not collected in FTA card, has proceeded to pass the

impugned order directing for collection of blood sample or semen from the

petitioner in FTA card and for getting of DNA report.

11. As rightly contended by the learned Government Advocate

(Criminal Side), just because the petitioner was not heard in the petition

filed under Section 173(8) Cr.P.C., that by itself is not a ground to label

the impugned order as illegal.

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12. As rightly pointed out by the learned Government Advocate

(Criminal Side), P.W.16 in his evidence nowhere stated that blood sample

or semen was collected from the petitioner in FTA card and the same was

sent for DNA analysis. According to P.W.16, DNA was extracted from

Item No.1 gauze piece recovered at the place of occurrence. Moreover, in

the report given by RFSL, Madurai, it has been specifically stated that

DNA was extracted from the Item No.1 gauze piece and the sample was

analyzed, that though intimation letter for collecting FTA card was sent

from the Laboratory on 17.07.2023, FTA card was not collected till

31.07.2024 and that therefore DNA typing results obtained for the Item

No.1 gauze piece is kept in the records of MDU/DNA/207/2022 for future

comparison. After coming to know about the said report and also the

evidence of P.W.16, according to the learned Government Advocate

(Criminal Side), the prosecution was constrained to file the above petition.

The learned Sessions Judge, by observing that the blood sample of the

accused person is not collected in FTA Card and in order to find out whose

semen was found in the occurrence place, it has become essential to

compare the DNA extracted with the DNA of the accused person and for

the said purpose, further investigation is absolutely necessary and on that

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ground, allowed the petition and consequently directed the SHO,

Thenkarai Police Station to collect the blood sample or semen from the

accused in FTA card and forward the same to RFSL, Madurai for

comparison of DNA and obtain report thereof.

13. No doubt, as rightly pointed out by the learned counsel

appearing for the petitioner, this Court is at loss to understand as to how

the police has failed to collect FTA from the Laboratory and without

getting the DNA comparison report filed the final report and more

importantly, they have not taken any action despite examination of

substantial number of witnesses at the trial. But considering the fact that

the present case is for the offence under the POCSO Act, as rightly

contended by the learned Government Advocate (Criminal Side) and as

rightly observed by the learned Sessions Judge, it is essential to get the

DNA comparison report for arriving at a correct decision of the case.

14. As rightly contended by the learned Government Advocate

(Criminal Side), DNA technology becomes a powerful tool for identifying

or eliminating suspects and it can provide definitive proof for a person's

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involvement in a crime as DNA evidence is considered to be 99%

accurate, but at the same time, no doubt, it cannot be construed as a

conclusive proof.

15. As already pointed out, it is pertinent to note that the

investigating agency has not collected the FTA card from the Laboratory

and hence, the question of collecting blood samples of the petitioner in

FTA card does not arise. Considering the above and taking note of the

evidence of P.W.16-Scientific Expert and the report of the Deputy Director

of RFSL, Madurai, the learned Sessions Judge has rightly allowed the

petition.

16. The learned counsel appearing for the petitioner would submit

that the petitioner cannot be compelled to give blood samples and the

impugned order directing the SHO to collect blood sample or semen from

the petitioner in FTA card cannot legally be sustained.

17. At this juncture, it is necessary to refer the following passages in

the case of M.Muthukumar Vs. The Inspector of Police, All Women

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Police Station, Sivagangai and another passed in Crl.O.P.(MD)No.6279

of 2017 dated 28.09.2018, wherein, the decision of this Court in Saranya

Vs. State, by the Inspector of Police reported in 2016 (6) CTC 503 was

referred:-

“55. From a conspectus of the aforesaid discussion, this Court is of the view that the source of power for a criminal Court to subject a witness and her child to DNA analysis flows from Section 91 read with the second limb of Section 311 Cr.P.C. and Section 45 of the Evidence Act.

...

57. In the case at hand, it is not the paternity of the child that is in issue. The issue before this Court is whether Manikandan [A1] has committed an offence under the POCSO Act. The issue of legitimacy would only be incidentally involved. One has to see the picture on a larger canvas and if so seen, there can be no doubt that the harm that would befall the administration of criminal justice is far greater, if witnesses like "X" and her child cannot be subjected to DNA profiling. The harm that would befall if such a power is not recognised in the trial Court will be far greater, because it will be easier for people to prey upon minor girls from downtrodden communities

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like predators and force them to turn turtle in the witness box. There is, therefore, an eminent need to subject "X" and her child to DNA profiling in order to arrive at the truth.

14.It is sufficiently clear from the above judgments that DNA profiling of an accused person will not amount to testimonial compulsion. That has been held so by the Hon'ble Supreme Court in the year 1961 itself in State of Bombay Vs Kathi Kalu Oghad, reported in AIR 1961 SC 1808 and which was subsequently, followed in Selvi and others Vs. State of Karnataka reported in 2010(7) SCC

263. It is for this purpose, Section 53 of CrPC has been suitably amended and Section 53A has been introduced in the Code of Criminal Procedure with effect from 23.06.2006 to take care of the need to draw blood samples from the accused. Therefore it will be too late in the day for the petitioner to raise a ground of self-incrimination.

15.The reliance placed by the learned Counsel for the petitioner in the judgment of the Supreme Court in Goutam Kundu Vs State of West Bengal and another, reported in AIR 1993 SC 2295, is also not sustainable in view of the fact that the subsequent judgments of the Supreme Court have virtually watered down the said judgment and expanding the scope of DNA profiling by

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propounding ?eminent need? Test. Therefore, the reliance placed by the learned Counsel for the petitioner in the judgment of the Supreme Court Goutam Kundu's case is unsustainable.