ORDER :- The learned Additional Sessions Judge, Fast Track Court No. 2 at Basirhat in the district of 24 Parganas (N) was trying the S.T. No. 3(7) of 2005 corresponding to Swarup Nagar P.S. Case No. 71 dated 6-8-2003 against the present petitioner under Section 376/417 of the IPC and after framing of charge, 14 witnesses were examined, cross-examined and discharged. Thereafter on 9-8-2007 the learned Public Prosecutor, in-charge of the case filed a petition before the learned Judge praying for DNA test of the victim girl, of the present petitioner and the child born of the girl. The learned Judge allowed the petition holding that if the DNA test is done it would almost conclusively determine the paternity or otherwise of the accused-petitioner in respect of the child and it was observed in the impugned order dated 17-8-2007 that this was the proper way of arriving at the truth. The impugned order reveals that similar petition was also filed before the predecessor of the learned Presiding Judge, but that petition was rejected on the ground that allowance of the petition would amount to interference with the investigation of the case. Since the investigation was over and trial was in progress, the learned Judge reasoned, there was no predicament now to make an order on the prayer (sic) prosecution since renewed before him for holding the DNA test.

2. This order of the learned Judge is the subject-matter of the revisional application on the ground that the order is bad in law and without application of the judicial mind.

3. I have heard learned Advocate, appearing for the petitioner, learned advocate appearing for the de facto complainant and learned Advocate appearing for the State. It has been submitted by Mr. Kallol Kumar Basu, learned Advocate appearing for the petitioner that once a petition was rejected by the learned Predecessor in office of the present learned Judge on 21-4-2006 a contrary order on the renewed prayer was illegal.

4. The question is whether the blood test, commonly called DNA test of the petitioner, of the victim and of the child is really necessary for establishment of the charge under Section 376/417 of the I.P.C.

5. In the impugned order the learned Judge's observation that previous rejection of the prayer was on the ground that allowance of such prayer would amount to interference with the investigation does not appear to be correct because the rejection of the same prayer earlier on 21-4-2006 was only when the trial was in progress and that too after examination of as many as eight prosecution witnesses. It is not that the predecessor in office of the present learned Judge rejected the petition on the ground that the matter was at the stage of investigation. Such was the ground advanced by the defence before the predecessor of the present Judge in the forum that if DNA test was ordered in course of the trial it would amount to interference with the investigation and would have the effect of directing the Investigating Agency for further investigation and this submission found favour with the predecessor of the present learned Judge. The present learned Judge who held a contrary view by his order dated 17-8-2007 reasoned that holding of DNA test would determine conclusively almost the paternity of the child.

Thus it is clear that predecessor of the present learned Judge rejected the earlier petition, rightly or wrongly on a ground, while the impugned order was passed contrary to the earlier order and both the orders were passed only during the trial of the case and not that the first order was passed at the stage of investigation. Section 362 of the Cr. P.C. clearly provides that alteration or review of the order except to correct a clerical or arithmetical error is impermissible. When an order of rejection of the prayer of the prosecution for holding DNA test was passed when eight witnesses were already examined, a contrary order on the renewal of the prayer of the prosecution is impermissible, no matter w

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