JUDGMENT - KHARCHE S.T., J.:---Rule. Rule made returnable forthwith.

2. Heard Shri Mirza, learned Additional Public Prosecutor for the State and Shri Daga, learned Counsel for the respondent.

3. This is an application under section 482 of Code of Criminal Procedure ("the Code for short) for quashing and setting aside the order dated 21st August, 2002 passed below Exhibit 27 in Sessions Trial No. 94/2001 passed by the 4th Adhoc Additional Sessions Judge, Nagpur, who rejected the application filed by the prosecution seeking permission for medical examination of the accused for deciding the paternity of the child.

4. Brief facts are as under:---

The non-applicant accused is facing prosecution for the offence punishable under sections 376, 417 of Indian Penal Code. During the course of investigation, sample of blood of the non-applicant accused as well as that of the complainant and the child was sent to chemical analyser, Mumbai and reports have already been received, which are filed along with the charge-sheet. Charge was framed and explained to the accused on 17-6-2002 to which he pleaded not guilty and claimed to be tried. The prosecution have examined as many as five witnesses including prosecutrix and Investigating Officer and the trial was adjourned to 2-8-2002 for recording the statement of non-applicant accused under section 313 of Code. On 2-8-2002 prosecution moved an application under section 53 of Code and requested for allowing the prosecution to examine the accused medically for determination of paternity of the child. This application was rejected by the learned 4th Adhoc Additional Sessions Judge, Nagpur on 21-8-2002 and it is this order, which is under challenge in this application.

5. The learned Additional Public Prosecutor contended that though the samples of blood of non-applicant/accused as well as complainant was forwarded to the Chemical Analyser, Mumbai to decide the paternity of the child, the same has not been done by the Forensic Department. The Medical Officer, who had examined the applicant had opined that pregnancy by the accused can only be confirmed after chemical analysis of semen. It is contended that the learned 4th Adhoc Additional Sessions Judge, Nagpur has committed an error in refusing to grant permission to the prosecution to get the accused medically examined for determining of paternity test. Because in view section 53 of the Code, prosecution can compel the accused to undergo such an medical examination. He contended that it is necessary for the prosecution to conduct the said paternity test, which would be a conclusive proof to show as to whether the accused is guilty for the offence punishable under section 376 read with section 417 of Indian Penal Code. The learned A.P.P., contended that the impugned order passed by the 4th Adhoc Additional Sessions Judge is not sustainable in law and therefore, it be quashed and set aside and the prosecution may be permitted to conduct such paternity test.

6. The learned A.P.P. contended that such paternity test could be conducted at Forensic Laboratory at Hyderabad and Mumbai and State is ready to bear all the expenses for conducting the said paternity test from those laboratories.

7. Mr. Daga, learned Counsel for the non-applicant accused contended that the prosecution has examined almost all the witnesses and at the belated stage filed application under section 53 of the Code, which is devoid of any substance and rightly rejected by the trial Court. He further contended that prosecution has also examined the Investigating Officer and exercise of sending sample of blood of the prosecutrix as well as non-applicant accused to chemical analyser for analysis has already been over and such exercise is to be conducted during the course of Investigation and in such circumstances, order passed by the learned 4th Adhoc Additional Sessions Judge, Nagpur are sustainable in law.

8. I have given thoughtful consideration to the contentions canvassed by the learned Cou

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