Vivek Swaroop Srivastava vs State Of Uttarakhand & Others
2021 Latest Caselaw 723 UK

           IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
                    Criminal Revision No. 704 of 2019

Vivek Swaroop Srivastava                                        .......Revisionist
                                          Vs.

State of Uttarakhand & others                                  .....Respondents

Mr. Lalit Sharma, Advocate for the revisionist. Mr. Dinesh Chauhan, Brief Holder, for the State. Mr. Sudhir Kumar, Advocate, for the private respondent nos.2 and 3.

Hon'ble Sharad Kumar Sharma, J (Oral)

The present criminal revision has been filed by the revisionist challenging the order dated 22.05.2018, which was rendered in Misc. Criminal Case No.33 of 2014 "Master Shrestha Vs. Vivek Swaroop", which was instituted by the respondent no.2 by invoking the provisions contained under Section 125 of CrPC for the grant of maintenance.

2. It was during the pendency of the said case, that the revisionist has moved an application Paper No.45 Kha, praying that the DNA Test may be conducted on Master Shrestha, which was claimed by the respondent no.3, to be the son born out of the physical relationship which the revisionist carried with respondent No.3 - Smt. Jyoti. The said application was rejected vide order dated 22.05.2018. Consequently, the revision was preferred before this Court, where at the initial stage the objection was raised by the defendant with regards to the maintainability of the criminal revision as against the rejection of Application Paper No.45 Kha, which was for denying to conduct the DNA Test on Master Shrestha, who was born out of the physical relationship between revisionist with respondent no.3 on 16.08.2013.

3. The said aspect of maintainability of the revision was adjudicated by this Court vide its judgment on 24.08.2020 and so far the said order is concerned, it had attained the finality. Later on when the Revision No.704 of 2019 was taken up on 22.11.2020, the learned

Counsel for the respondent no.2, in principle had expressed that he is not averse to undergo the DNA Test; as it has been contemplated under Section 112 of the Evidence Act. Consequently, this Court had passed an order on 03.12.2020 directing the CMO, Nainital to collect the samples of the revisionist as well as the respondent no.2, for the purpose of carrying out the DNA Test, and had passed the following orders:-

"In order to lay the controversy at rest and, particularly, when it entails the interest of the minor, the CMO, Nainital is directed to collect the sample of Master Shreshtha as well as the revisionist, within a period of three weeks from today, the respondent no.1 would ensure to produce respondent no.2 Master Shrestha, before the CMO Nainital, in order to enable him to collect the samples required to be sent for its FSL Examination. Both of them would appear before the CMO, Nainital.

The CMO is further directed that after collecting the said samples, he would be sending the sample for its DNA examination to FSL Laboratory Chandigarh and place the report of the same before this Court of the present Criminal revision.

The revisionist as well as the Master Shreshtha, are directed to appear before the CMO for the purposes of providing the samples on 21.12.2020 at 11:00 a.m.

Interim order will continue till the next the next one month."

4. The samples were collected by CMO Nainital but, however, the respondents counsel has expressed an apprehension that looking into the nature of the engagement of the revisionist being the Finance Controller in the Medical Education Department, Srinagar Medical College. Their apprehension is that, in case, the DNA test is conducted within the State, they may not be getting a fair report. Hence this Court vide order dated 03.12.2020 had directed the CMO,

Nainital to collect the samples and sent it before the FSL Laboratory, Chandigarh, for getting the report of the DNA test.

5. There is an office report dated 02.02.2021, which suggests that the Registry have received the copy of the report from the Central Forensic Laboratory, Chandigarh. In fact the report which was submitting being Report No.CFSL (C)-2463/2020/DNA- 310/2020 dated 15.01.2021, was placed before this Court in a sealed envelope.

6. With the consent of the learned counsels for the parties, the seal envelope was opened in the presence of the respective counsels and the Government Advocate. The report as submitted, after the medical examination which was conducted and has reported therein, the Assistant Director/Scientist-C Biology and DNA Division of the Central Forensic Science Laboratory, has concluded its observation in the following manner, which is extracted hereunder:-

"1. The autosomal DNA STR profiles were obtained from reference blood samples i.e. Exhibit -01A (source: Vivek Swaroop Srivastava) and Exhibit - 02A (source: Shreshtha)

2. Exhibit - 01A (source: Vivek Swaroop Srivastava) is passing the all obligate paternal alleles present in Exhibit - 02A (source: Shreshtha). Cumulative Motherless Paternity Index of all the genetic loci tested is 900324.6111.

3. Y-Chromosomal DNA STR Profile of Mr. Vivek Swaroop Srivastava (source: Exhibit - 01A) is matching with Y-

      Chromosomal        DNA      STR        Profile   of   Shreshtha,
      (Source:Exhibit - 02A)."

7. In fact, if Clause (3) of the said observations of the report and the consequence derived by the Scientist, who conducted the DNA test, he has observed that the "Y - Chromosomal DNA STR profile of the revisionist which was examined as Exhibit 01A was matching with Y-Chromosomal DNA STR Profile of respondent no.2, which was placed at Exhibit 02A.

8. Hence, in view of the said report, which has been placed on record, in fact, the grievance of the revisionist while giving challenge to the order dated 02.05.2018 of the Judge, Family Court, Nainital rendered in Misc. Criminal Case No.33 of 2014 "Master Shrestha Vs. Vivek Swaroop" rejecting his Application Paper No.45 Kha for conducting the DNA test stands satisfied, as the DNA test has now already been conducted, as was directed by this Court and the report has been submitted.

9. Hence in view of the report, which was read by the Court in the presence of the learned Counsels for the parties and shown to them too, no further adjudication is required in the present Criminal Revision No.704 of 2019, for the reason that the revisionist grievance of non-conducting of the DNA test on respondent no.2 stands satisfied and redressed.

10. Since in the light of the report dated 15.01.2021, the criminal revision stands disposed of accordingly.

11. The Bench Secretary is directed to reseal the Central Forensic Science Laboratory report and place it in the seal cover accordingly, with the records of the present Criminal Revision.

(Sharad Kumar Sharma, J.) 08.03.2021 NR/