Section 53 of the Code of Criminal Procedure, 1973, authorizes the police to obtain a blood sample from an arrested person for the purpose of determining his blood group, and this provision is not violative of Articles 20(3) and 21 of the Constitution of India.

JUDGMENT - C.S. DHARMADHIKARI, J.:---This Criminal Revision Application is placed before us for hearing in view of the reference order dated the 18th December, 1979 passed by Kotwal J. The Application-accused and Original accused No. 2 Shankar are being prosecuted for an offence punishable under section 302 read with section 34 of Indian Penal Code, 1860, for committing murder of one Shoukat on 23rd September, 1978. It is not necessary to make a detailed reference to the prosecution story because we are not concerned with the merits of the case at this stage.

2. It appears from record that after completing the investigation a chargesheet was filed by the prosecution in the Court of learned Metropolitan Magistrate, Bombay who in his turn committed both the accused persons to stand their trial before the Sessions Court, Greater Bombay. Thereafter, a charge under section 302 read with section 34 of the Indian Penal Code, 1860, was framed by the Sessions Court. This charge was framed on 9th November, 1979 and on the same day the Public Prosecutor filed an application before the Additional Sessions Judge which reads as under :

“The accused No. 1 Anil may be directed to accompany the Police Officer to the Police Surgeon in order that blood sample of the accused is taken by the doctor for the determination of his blood group.”

This application was opposed on behalf of the accused on several grounds. According to the accused such an application is not maintainable under section 53 of the Code of Criminal Procedure because once the chargesheet is filed and investigation is completed the Court has no power to issue any such direction under the said section. It was also contended that the words and expression used in section 53 have got a restricted meaning and the examination of the person as envisaged by the said provision could not be extended to extraction of blood. A contention was also raised that the said provision is violative of the petitioners fundamental right guaranteed under Article 20(3) as well as Article 21 of the Constitution of India. After hearing the arguments in detail and relying upon the decision of the Allahabad High Court in (Jamshed v. State of Uttar Pradesh)1, 1976 Cri.L.J. 1680, the learned Additional Sessions Judge granted the said application and directed accused No. 1 Anil to accompany the Police Officer to the police surgeon in order to enable the doctor to take his blood sample for determination of his blood group. It is this order passed by the Additional Sessions Judge dated 14th November, 1979 which is challenged in this Criminal Revision Application.

3. Initially this revision application was placed for hearing before the Single Judge of this Court. However, as the learned Judge did not agree with some of the observations made in (State of Maharashtra v. Dnyanoba)2, 1979 Cri.L.J. 277, he thought it fit to refer the matter to a larger Bench and this is how this Criminal Revision Application is placed before us for hearing.

4. Shri Adhik Shirodkar, the learned Counsel appearing for the petitioner contended before us that the provisions of section 53 of the Code of Criminal Procedure are violative of the fundamental right guaranteed under Article 20(3) of the Constitution of India as it amounts to testimonial compulsion. He then contended that there is no provision in the Code of Criminal Procedure which enables the Court or Police to take a sample of the blood of the accused for determining the blood group. He also contended that, the words and expressions used in section 53 will have to be given a restricted meaning and the said provision can include in its import only physical external examination and cannot include taking of blood sample for determination of blood group. He also contended that under section 53 of the Code, power is conferred upon the Investigating Officer while investigation is in progress and, therefore, once a chargesheet is field the Court has no power to issue any such direction. In

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