MOHAN SHANTHANAGOUDAR, J.

( 1 ) ASSAILING the correctness of the order dated 1-2-2003 passed by learned Judicial Magistrate First Class, Somwarpet in Crime No. 156 of 2002, whereby the Magistrate has allowed the application dated 26-11-2002 filed by the Investigation Officer seeking direction to the medical officer to conduct blood test of the accused by collecting sample of blood from him in order to ascertain as to whether the accused has caused pregnancy of the complainant or not, the accused has come forward with the present petition.

( 2 ) THE brief facts of the case giving raise to the present petition are that. Crime No. 156 of 2002 is registered in Somwarpet Police Station on the basis of the complaint lodged by one G. S. Poornima on 15-11-2002 for the offences punishable under Sections 313, 417 and 506 of the IPC. It is alleged in the said complaint that the accused-petitioner herein was in love with the complainant-Poornima; assuring the complainant that he would marry her and made her to believe so, had illicit intercourse with her on number of occasions since December 2000; when the complainant was pregnant on account of such sexual intercourse, she informed the same to the accused and requested him to marry her; but the accused asked her to terminate the said pregnancy medically and that he would bear the expenses and again promised the complainant of marrying her. However, the accused and his family members started evading her. Thereafter, the accused left the village itself and came back a week prior to lodging of the complaint and told the villagers that he has married another girl. The complainant is now having one and half year old baby boy who is born out of the sexual relationship between the accused and the complainant. During the course of the investigation, the accused was released on bail. The investigation officer filed an application before the jurisdictional Magistrate seeking permission to take blood sample of the accused for the purpose of conducting D. N. A. test in order to ascertain the fact as to whether the accused caused pregnancy of the complainant or not. The said application is allowed by the Court below under Section 53 of the Code of Criminal Procedure (hereinafter referred to as "code" for short ). The said order is assailed in this petition.

( 3 ) SRI C. H. Jadhav, learned Counsel appearing for the petitioner made four-fold submissions. Firstly, he contended that there is no provision in the Code of criminal Procedure which enables the Court or police to take sample of the blood of the accused for, determining the blood group/d. N. A. test and that the expressions used in Section 53 of the Code will have to be given a restricted meaning inasmuch as the said provision can include only physical or external examination and cannot include taking of blood sample for determination of blood group which is brutal and offensive. Secondly, he contended that the impugned order directing the accused to subject himself for blood test is violative of the fundamental right guaranteed under Article 20 (3) of the Constitution of India as it amounts to testimonial compulsion. Thirdly, he contended that Section 53 of the Code contemplates subjecting only the arrested persons for medical examination and not the persons who have been released on bail. Lastly, he contended that the provision of Section 53 of the Code contemplates that the medical examination will have to be done at the instance of a police officer not below the rank of Sub-Inspector and that the Magistrate has no role to play under Section 53 of the Cr. P. C. , and consequently, the impugned order passed by the learned Magistrate is bad in law. Based on aforesaid grounds, learned Counsel prayed for setting aside the impugned order. In support of his contentions, learned Counsel has relied on two decisions i. e. , (1) Amarjit Kaur v Harbhajan Singh and others and (2) Goutam Kundu v State of West Bengal and Another.

( 4 ) PER contra, Sri M. Ma

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