IMPORTANT POINT
Direction for DNA Test cannot be sustained where dispute is not about paternity of child.

JUDGMENT (ORAL)

The petitioner-accused No.1 by this petition challenges the order passed by the trial Court on the application filed by respondent No.2 - State of Maharashtra below exhibit 36 in Special Case No.12 of 2014 with a prayer to collect a blood sample of the petitioner for D.N.A. test. The trial Court by the impugned order dated 14/01/2016 has allowed the application.

2. To appreciate the controversy, it would be necessary to carefully peruse the statements of respondent No.1 herein at whose instance the criminal prosecution came to be initiated. The petitioner herein is the original accused No.1 in C.R. No. 102 of 2014 registered at Miraj Rural Police Station, District Sangli in respect of the offence alleged by respondent No.1 for the offences punishable under Sections 498-A, 494, 496, 504, 506 read with 34 of the Indian Penal Code and Sections 3(1)(r), 3(1)(s), 4(1)(u), 6 and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act Amendment, 2015.

3. It is the allegation of respondent No.1- complainant that she belongs to the Hindu-Mang community which is recognised as a Scheduled Caste. The petitioner belongs to the Maratha community. The petitioner was already married. The petitioner though was a married person, insisted the respondent No.1 to maintain a relationship with him and expressed his desire to marry her. Respondent No.1 initially refused but later for a period of 2½ years maintained a relationship with the petitioner. Thereafter, on 07/01/2014, the petitioner married respondent No.1. It is alleged that some of the relatives of the petitioner as well as of his first wife were present. Respondent No.1 later conceived. However, the petitioner was insisting that respondent No.1 should abort the child. The petitioner and his first wife abused respondent No.1 and assaulted her as is the accusation. The petitioner and his first wife were after respondent No.1 to undergo an abortion. However, respondent No.1 gave birth to a child on 25/10/2014. The FIR is dated 16/09/2014 and the charge-sheet was filed on 30/10/2014.

4. During the pendency of the Special Case before the Special Court, the prosecution made an application below exhibit 36 with a prayer to collect the blood sample of accused No.1/petitioner for the D.N.A. test. The application was resisted by the petitioner and filed his say at exhibit 37. The Special Court by the impugned order dated 14/01/2016 allowed the application below exhibit 36. The Special Court on the basis of the observations from paragraph No.3 onwards was of the opinion that the application made by the prosecution deserves to be allowed. The relevant portion of the orders reads thus:—

“3. It is alleged by the informant that, the accused No.1 had performed marriage with victim and established sexual relationship with her. In the course of time, she delivered a male child on 25-10-2014 and charge-sheet came to be filed on 30-10-2014. The victim could not inform about her delivery to the police within the said short time span. This is a new circumstance for the prosecution to its case. The statement of the victim is that, she became pregnant and the accused is the father of her child, thus requires further investigation. In view of the peculiar circumstances of the birth of child, it is for the prosecution to seek permission to take blood sample of accused No.1 for DNA test.

4. On behalf of accused, it is submitted that, during the course of investigation, the Police Officer did not attempt to collect the DNA sample and it is also not the case of the prosecution that, accused No.1 refused for the same that unless and until present accused refused to give consent to the Investigating Officer, prosecution cannot directly ask the court to compel order of DNA. It is also one of the ground of resisting Exh.36 that, during the course of investigation, the Investigating Officer did not make any effort and the present act is to fill up the lacuna in the charge