IMPORTANT POINT
Paternity of child – DNA Test is not for mere asking but can be resorted to in deserving matters only as it helps in preventing destitution, vagrancy and bastardization.

ORDER (ORAL)

Heard learned senior counsel for the petitioner and learned APP for the State.

2. The present application has been filed for quashing the order dated 05.11.2020 passed by the learned 7th Additional Sessions Judge-cum-the Special Judge, POCSO Act, West Champaran, Bettiah, whereby the petition dated 04.07.2020 filed by the petitioner seeking DNA test to determine the paternity of the petitioner vis-a-vis the son of the victim of Sathi P. S. Case No.23 of 2019 registered under Section 376 and 506 of the Indian Penal Code read with Section 4/ 6 of the Protection of Children from Sexual Offences Act has been dismissed.

3. The learned senior counsel for the petitioner submits that the factual matrix of the case, in brief, leading to the present impugned order is that the informant alleges that he along with his son Rajesh Sah are seller of spices in retail at Darbhanga. Further, they come to their native village once in a month. It is next alleged that on 25.02.2019, he along with his son came to his village and to his shock, he came to know that his minor daughter was carrying pregnancy. It is next alleged that on enquiry, it transpired that his neighbour Banarasi Sah (petitioner) enticed her and called to his house and raped her. Further, after committing the occurrence threatened her and the minor under threat of life did not disclose the occurrence to the informant. Further, petitioner continued raping her, leading to the pregnancy. Further, on coming to know about the occurrence, the informant went to the house of the petitioner, but he fled.

4. The learned senior counsel for the petitioner next submits that from perusal of the F.I.R., it becomes clear that the informant (O.P. No.2) came to know about the occurrence on 25.02.2019. Thereafter, on 02.03.2019, the F.I.R. was instituted and the victim was examined by the doctors on 03.03.2019 and the victim was found carrying pregnancy of 26-27 weeks. It is next submitted that the statement of the victim was recorded on 05.03.2019 under Section 164 of the Cr.P.C. wherein she supported the case of the prosecution and stated that the petitioner raped her in the month of Shrawan and she was threatened for her life including the life of her parents and when she noticed the movement of the child, she disclosed it to her mother. It is further submitted that the police after investigation submitted charge-sheet no.174 of 2019 dated 15.10.2019 under Sections 376 and 506 of the I.P.C. only and thereafter, cognizance was taken on 16.10.2019. Further, charges were framed for offences under Section 376 and 506 of the I.P.C. read with Section 4 and 6 of the POCSO Act.

5. The learned senior counsel further submits that on 04.07.2020, a petition was filed by the petitioner seeking DNA Test for determining the paternity of the petitioner vis-a-vis the child of the victim, whom the victim claims to be son of the petitioner as she conceived on account of rape. The learned senior counsel submits that the child was kept by the Child Welfare Committee and the learned trial Court after receiving the reply from the side of the prosecution, heard the parties and rejected the petition dated 04.07.2020 by the order impugned dated 05.11.2020. The learned senior counsel next submits that from perusal of the impugned order, it would manifest that the learned trial Court while rejecting the petition dated 04.07.2020, held that when the child was born and handed over to the Child Welfare Committee, at that time itself the petitioner ought to have filed an application. Further, the F.I.R. was instituted on 02.03.2019, charge-sheet submitted on 15.10.2019, cognizance taken on 16.10.2019, but no such application came to be filed. It was only when the bail application of the petitioner was rejected by the Hon’ble High Court with a direction that the trial be concluded expeditiously, thereafter, the present petition came to be filed. Further, the child after completing all legal formalities has been