IMPORTANT POINT
Admissibility of evidence has to be decided during trial.

JUDGMENT

Dr. Arijit Pasayat, J.—

1. Leave granted in both the Special Leave Petitions.

2. Challenge in these appeals is to the judgment of a Division Bench of the Bombay High Court. The appeal relating to Special Leave Petition (Crl.) No. 1880 of 2007 has been filed by Narender Goel who was not a party before the High Court while the Criminal Appeal relating to SLP(Crl.) No. 3206 of 2007 has been filed by Pawankumar Satyanarayan Goenka who was also not a party before the High Court. Dr. Sadankumar Goel, the petitioner in Criminal Writ Petition No. 1930 of 2006 is the husband of Dr. Asha Goel (hereinafter referred to as the ‘deceased’) who was found murdered. Said Dr. Sadankumar Goel filed the Criminal Writ Peition No. 1930 of 2006 with the prayer that respondents 1 to 7 in the Writ Petition should be directed to take appropriate steps under Section 166(A) of the Code of Criminal Procedure, 1973 (in short the ‘Code’) in CPNA No. 6 of 2004 registered at DCB CID, Unit II Malabar Hill Police Station CR. No.93 of 2003, in so far as the forensic investigation is concerned and to approach the Government of Canada for seeking assistance from appropriate agencies of the said Government to investigate the offences in so far as they relate to DNA testing of the articles recovered from the accused Pawankumar Satyanarayan Goenka the appellant in the appeal relatable to Special Leave (Crl.) No. 3206 of 2007 and Pradeep Parab during the investigation and of the materials recovered from the Santro car seized during investigation along with all other materials collected in the course of investigation relevant for the purpose of such forensic and medical examination to Canada as there is no such facility available in India.

3. Stand of Dr. Sadankumar was that for want of proper medical and forensic investigation, material evidence would be lost to the prosecutor and therefore at his request office of a Chief Coroner of the Province of Ontario has written a letter to Commissioner of Police, Crawford Market, Mumbai that they are ready to assist the investigating team in their desired area and the office of the Chief Coroner for Ontario has performed a second autopsy of the deceased at the family’s request and they have preserved genetic material of the deceased which can be used to make a genetic comparison to any samples that the Investigating Agencies in India wish to have tested.

4. The High Court after hearing noted that the reply reflects the concern on the part of the office of the Chief Coroner for Ontario; the deceased was a Canadian Citizen and a resident of Ontario. The High Court called upon the investigating agency to file their short reply. In the reply filed it was accepted that the facility for Mitochondrial DNA analysis is not available in the Forensic Science Laboratory either in Kalina or at Kolkatta and if it is the writ petitioner’s belief that carrying out such an analysis on the material seized by the police during the course of investigation would bring to light with unerring certainty the culpability of the concerned accused, it will not only aid the investigation but also there cannot be any question of objection to the helping hand offered by the writ petitioner to the investigating agency.

5. The Court after considering the various submissions directed the investigating agency to get the material collected in the course of investigation examined in Canada. It noted that it will take sometime and therefore the trial court would wait for such a report which will be part of medical and forensic investigation which can be filed in the trial court under Section 173(8) of the Code.

6. The basic stand of the appellants is that the High Court has not kept in view the parameters of Section 166A of the Code. It is submitted that some evidence which is already in existence but in a country outside India can be collected. But for that purpose 1 application is required to be made by the prosecution before the Competent Court of law