The judgment established the importance of considering the proportionality and potential impact on privacy rights when ordering DNA testing in criminal cases, emphasizing the collateral nature of certain factors to the allegations.

ORDER

1. Leave granted.

2. Heard learned counsel appearing for the parties. The present proceeding arises out of an FIR lodged by the defacto- complainant (respondent no.2) followed by chargesheet pertaining to offences under Sections 498A, 323, 354, 506 and 509 of Indian Penal Code, 1860 (the 'Code'). The FIR was made against the appellants, the appellant no. 2 being her husband and the first appellant being her brother-in-law (husband's brother). Having regard to the nature of controversy involved in this proceeding, we have avoided revealing her identity in this judgment and direct the Registry to mask her identity with 'XX'. Her complaint mainly related to dowry allegations as well as harassment and physical violence committed on her by her husband and her in-laws. The Trial Court had proceeded in the case and several witnesses were examined, when the complainant filed an application under Section 45 of the Indian Evidence Act, 1872 with a prayer for direction for obtaining expert opinion for DNA fingerprint test comparing blood samples of two minor daughters of the respondent no.2 with that of the first appellant. The basis of this application was her allegation that she was forced to cohabit and develop a physical relationship with the appellant no. 1 and the two children were born out of that relationship. The Trial Court allowed her prayer and she, along with the appellants and the children, were directed to give blood samples to a specified hospital for obtaining an expert opinion on DNA fingerprint test.

3. The appellants invoked the revisional jurisdiction of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh seeking invalidation of the said Order. The revisional application, however, was dismissed. The High Court held that such DNA fingerprint test was permitted under Sections 53, 53A and 54 of the Criminal Procedure Code, 1973. It was observed in the judgment of the High Court, relying on several authorities, that it does not tantamount to testimonial compulsion. It was also held by the High Court that in the event the directions were not complied with, the Court had to draw an adverse inference. The order of the Trial Court was, thus, upheld.

4. We have been taken through the FIR and the chargesheet as well as the additional chargesheet by the learned counsel for the parties. The allegations, which we have already indicated, were primarily in respect of dowry related offences but later on the offence related to outraging modesty of the respondent no.2 was added. Paternity of the children of the complainant were not directly related to the allegations, out of which the present appeal arises.

5. In the case of Ashok Kumar v. Raj Gupta and Ors. [(2022) 1 SCC 20] decided by a Coordinate Bench, sparing use of the DNA fingerprint test was opined. This was a suit for declaration of ownership of certain property and the defendants had raised the plea that the plaintiff was not the son of the original owner thereof, from whom he claimed to have derived the title. In that case also, plea was made for conducting a DNA test. The Coordinate Bench of this Court held, referring to, inter-alia, Section 112 of the 1872 Act:-

'15. DNA is unique to an individual (barring twins) and can be used to identify a person's identity, trace familial linkages or even reveal sensitive health information. Whether a person can be compelled to provide a sample for DNA in such matters can also be answered considering the test of proportionality laid down in the unanimous decision of this Court in K.S. Puttaswamy (Aadhaar- 5 J.) v. Union of India [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1], wherein the right to privacy has been declared a constitutionally protected right in India. The Court should therefore examine the proportionality of the legitimate aims being pursued i.e. whether the same are not arbitrary or discriminatory, whether they may have an adverse impact on the perso