Telangana High Court
G.Hari Prasad Rao, Hyderabad., vs The State Of Telangana, Rep Pp., on 11 January, 2023
Bench: G.Radha Rani
THE HONOURABLE Dr. JUSTICE G. RADHA RANI
CRIMINAL REVISION CASE No.1092 OF 2017
ORDER:
This Criminal Revision Case is filed by the petitioner-Accused
aggrieved by the order dated 27.03.2017 in Crl.M.P. No.799 of 2017 in
C.C. No.324 of 2010 passed by the XIII Additional Chief Metropolitan
Magistrate (Mahila Court), Hyderabad in directing him to undergo
DNA test to know the paternity of the child of PW.1 (de facto
complainant).
2. The petitioner-Accused was charged for the offence under
Section 498-A IPC. The de facto complainant was examined as PW.1
in the said case. She stated in her evidence that the accused made
allegations suspecting her character disputing the paternity of the child
born out of the marriage. The accused denied the marriage between
himself and PW.1. He stated that the child was not born through him
and that they had not resided under one roof. After cross-examination
of the de facto complainant (PW.1,) she came forward with an
application to conduct DNA test on the accused for determining the
paternity of the child. As such, the prosecution filed the application to
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direct the accused to subject himself to DNA test to prove the paternity
of the child.
3. The accused filed counter opposing the petition contending
that it was not necessitated under law and the application was filed only
to protract the proceedings.
4. The trial court, on hearing both the learned Additional
Public Prosecutor and the learned defence counsel and considering
several citations produced by both sides, allowed the application
directing the accused to undergo the DNA test to know the paternity of
the child.
5. Aggrieved by the said order, the accused preferred this
revision contending that the complaint filed under Section 498-A IPC
had no nexus with the paternity of the child. The court ought to have
taken into consideration that allowing the Criminal M.P. would amount
to infringement of his fundamental right guaranteed under Article 21 of
the Constitution of India. There was no whisper in the complaint or in
the chief or cross examination of PW.1 about the paternity of the child.
The prosecution filed the application only to fill up the lacunae. The
application itself was not maintainable and the court below erred in
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misinterpreting the judgments which would clearly bar any such
petition for conducting DNA test and prayed to set aside the order
dated 27.03.2017 passed in Crl.M.P. No.799 of 2017 in C.C. No.324 of
2010 by the XIII Chief Metropolitan Magistrate (Mahila Court),
Hyderabad.
6. Heard learned counsel for the revision petitioner-accused
and the learned Additional Public Prosecutor.
7. The learned counsel for the revision petitioner submitted
that the trial was completed before the trial court and the case was at
the stage of arguments. Because of the pendency of the revision case,
the case could not be proceeded forward and submitted that if an order
was given by this Court to draw an adverse inference in case of
revision petitioner not complying the order, the interest of both the
parties would satisfy and prayed to pass orders accordingly.
8. Perused the record. The charge sheet would disclose that the
de facto complainant, who was a doctor, stated that her marriage was
performed with the petitioner-accused on 02.02.1990 in the presence of
elders and well wishers. After the marriage, she went to her
matrimonial house at Tenali and thereafter she along with her husband
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shifted to different places i.e. Guntur, Prakasham and Hyderabad. Her
husband frequently harassed her mentally and physically by suspecting
her character and fidelity. During the wedlock, she was blessed with a
male child, who was now aged 18 years. But, the harassment of her
husband was not stopped against her. Subsequently, she came to know
that her husband married another woman, by name, Sandhya and was
having a daughter, aged 7 years. When she questioned about the
second marriage, he threatened her with dire consequences and warned
her not to interfere in the affairs of his second marriage. He had beaten
her and necked out from the house at Kukatpally, Hyderabad.
9. The accused denied his relationship with the de facto
complainant and gave a suggestion that he had not resided with her.
Since the accused denied his relationship with the de facto
complainant, she came forward with this petition.
10. In the judgments relied by both sides, the issue was with
regard to paternity of the child. The paternity of the child is not in
question in this case and it is not the issue relevant to decide the
criminal case. The DNA test cannot be ordered as a matter of routine
and as observed by the trial court itself in the judgment in Bhabani
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Prasad Jena v. Convenor Secretary, Orissa State Commission for
Women and another1, the court has to consider the diverse aspects
including the presumption under Section 112 of the Evidence Act, the
pros and cons of such order and the test of eminent need whether it was
not possible for the court to reach the truth without use of such test.
11. But, without such eminent need to decide any such issue
before the court, the court ordered for such a test to be conducted. This
court does not find any necessity to order for DNA test as a matter of
course.
12. Hence, the Criminal Revision Case is allowed setting aside
the order dated 27.03.2017 in Crl.M.P. No.799 of 2017 in C.C. No.324
of 2010 passed by the XIII Additional Chief Metropolitan Magistrate
(Mahila Court), Hyderabad.
Miscellaneous Applications, if any pending, shall stand closed.
_____________________
Dr. G. RADHA RANI, J
January 11, 2022
KTL
AIR 2010 SC 2851
