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High Court Of Calcutta
S. P. Talukdar, J.
LAKSHMI BOSE ROYCHOWDHURI - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. R. 1533 Of 2006
Decided On : 08/01/2006
DNA TEST - PATERNITY - SECTION 112 EVIDENCE ACT - CRIMINAL PROCEDURE CODE, 1973 - SECTION 173(8) - SECTION 401 - SECTION 482 - Blood sample collection for DNA testing to establish paternity is not permissible as a matter of course. A strong prima facie case must be established to dispel the presumption of legitimacy under Section 112 of the Evidence Act. The court must carefully consider the consequences of ordering a blood test, including the potential impact on the child's legitimacy and the mother's reputation. No one can be compelled to give a blood sample for analysis.
Fact of the Case:
The petitioner, Smt. Lakshmi Bose Roychowdhuri, challenged an order directing her and her child to undergo a DNA test in connection with a murder case involving her husband, Dr. Swapan Bose Roychowdhuri. The petitioner's father-in-law, Pratul Bose Roychowdhuri, had filed a complaint alleging that the petitioner and others forged Dr. Roychowdhuri's signature to facilitate a false will. The petitioner and Dr. Sharma, who was also implicated in the case, were arrested and later released on bail. The Special Superintendent of Police, C.I.D., West Bengal, filed an application before the trial court seeking permission to collect blood samples from the petitioner, her son, and others for DNA testing to determine the child's paternity.
Finding of the Court:
The court held that the impugned order directing the petitioner and her child to undergo a DNA test was illegal and unsustainable. The court found that the prosecution did not establish a strong prima facie case to dispel the presumption of legitimacy under Section 112 of the Evidence Act. The court also considered the potential consequences of ordering the blood test, including the impact on the child's legitimacy and the mother's reputation. The court further held that the investigating authority could not be permitted to collect materials that may only be relevant in other proceedings, such as property disputes.
Issues: 1. Whether the court can order a blood test to establish paternity as a matter of course? 2. What are the requirements for rebutting the presumption of legitimacy under Section 112 of the Evidence Act? 3. Can the investigating authority collect blood samples against the will of the person concerned? 4. Is motive indispensably essential in every criminal case?
Ratio Decidendi: 1. Blood test to establish paternity cannot be ordered as a matter of course. 2. To rebut the presumption of legitimacy under Section 112 of the Evidence Act, the husband must establish non-access. 3. No one can be compelled to give a blood sample for analysis. 4. Motive is not indispensably essential in every criminal case.
Final Decision: The court allowed the petitioner's application and set aside the impugned order directing the DNA test. The court directed the trial court to proceed with the case expeditiously.
Certainly. Based on the provided legal document, the key points are as follows:
The court emphasized that blood sample collection for DNA testing to establish paternity is not permissible as a matter of course. Such testing requires a strong prima facie case to rebut the presumption of legitimacy under Section 112 of the Evidence Act [judgement_subject][judgement_act_referred].
To rebut the presumption of legitimacy, the party contesting paternity must establish non-access, meaning the absence of opportunities for marital intercourse, and proof must be clear and satisfactory [judgement_subject][judgement_act_referred].
No individual can be compelled to give a blood sample for analysis; the collection of such samples must respect the person's will and fundamental rights [judgement_subject].
The court held that the collection of blood samples cannot be justified solely on the grounds of establishing motive or for purposes unrelated to the core criminal case, especially when such collection is long after the submission of the chargesheet and may infringe on basic human rights [judgement_subject][judgement_act_referred].
The decision underscores that motives are not indispensable in every criminal case, and the relevance of blood tests must be carefully scrutinized to avoid unnecessary infringement of individual rights [judgement_subject].
The court found that the impugned order directing DNA testing was illegal and misdirected, and it set aside that order, emphasizing that investigations should not encroach upon fundamental rights or involve extraneous matters irrelevant to the criminal proceedings [judgement_subject].
The court highlighted that scientific methods like serological testing are not yet perfect and can only exclude certain possibilities rather than conclusively establish paternity, which makes such tests unsuitable as investigative tools in criminal cases without proper legal safeguards [judgement_subject].
The court pointed out that collection of blood samples for establishing paternity or motive must adhere to legal procedures, respecting the rights of individuals, and should not be used as a tool for harassment or extraneous disputes such as property inheritance [judgement_subject].
The court directed the trial to proceed expeditiously and clarified that the investigation should not involve collecting materials relevant only to other proceedings or disputes, reaffirming the importance of legal propriety in evidence collection [judgement_subject].
Overall, the judgment reaffirmed that individual rights, including the privilege against self-incrimination, must be upheld, and courts should exercise caution when ordering biological tests, ensuring that such orders are legally justified and proportionate to the case at hand [judgement_subject].
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( 1 ) PETITIONER, Smt. Lakshmi Bose Roychowdhuri, by filing an application under section 401 read with section 482 of the Code of criminal Procedure sought to assail the order dated 24th April, 2006 passed by the learned Additional Sessions Judge, Fast Track Court, Haldia, District purba Midnapore, in connection with Sessions Trial No. V/march/2005. The said case arose out of Durgachak Police Station Case No. 6 of 2000 dated 19. 01. 2000 under section 302/201/34/120b of the Indian Penal Code.
( 2 ) GRIEVANCES of the petitioner, as ventilated in the present application, may briefly be stated as follows: petitioner got married to Dr. Swapan Bose Roychowdhuri on 20. 08. 1991. After marriage, she left for her matrimonial home at Barauni, Bihar. She gave birth to a male child on 18. 05. 1993. In June, 1999, the husband of the petitioner was posted as Medical Officer in Indian Oil Refinery, Haldia and he started residing in the quarter allotted to him along with his family members. On 19. 01. 2000, Dr. Sawpan Bose Roychowdhuri was found dead on the bank of a river in front of Hindustan Petrochemicals Limited. Over such death, Durgachak Police Station Case No. 6/2000 dated 19. 01. 2000 was instituted on the basis of a written complaint lodged by one Balai Barik, with the Officer-in-Charge of the police station, inter alia, alleging commission of offences punishable under section 302/201/34 of Indian Penal Code.
( 3 ) THE father-in-law of the petitioner namely, Pratul Bose Roychowdhuri and other members of her matrimonial home were incessantly torturing the petitioner, physically and mentally and this led the petitioner with no choice but to lodge a complaint before the learned Court of Additional Chief judicial Magistrate, Tamluk, for commission of offences punishable under section 498a/380/384/308/506 of the Indian Penal Code against the said Pratul bose Roychowdhuri and others. The said case was numbered as M. P. Case no. 487 of 2000. On 23. 11. 2000, learned Additional Chief Judicial Magistrate, tamluk, directed the concerned police authority to investigate into the allegations made in the said complaint after treating the same as FIR under section 156 (3) of the Criminal Procedure Code. Pursuant to that, Haldia police Station Case No. 4/2001 dated 08. 02. 2001 under section 498a/380/ 384/308/506 of the Indian Penal Code was registered for investigation.
( 4 ) AFTER completion of investigation the said Haldia Police Station Case no. 4/2001 dated 08. 02. 2001 ended in submission of final report being f. R. M. F. No. 17/2001 dated 30. 06. 2001. In response to the same, notice was issued upon the de facto -complainant. The present petitioner, as de facto-complainant, filed a "protest petition". After hearing learned Counsel for the parties, the learned Magistrate by order dated 27. 08. 2003 directed further investigation of the case which was directed to be conducted by Sub-Divisional police Officer, Haldia.
( 5 ) THE petitioner filed a probate application with regard to the last Will and testament dated 09. 01. 2000 of her husband Dr. Swapan Bose roychowdhuri in the Court of the learned District Judge, Alipore, 24-Parganas (South ). The said case was numbered as Probate Case No. 441/ 2001. On 06. 01. 2001 a probate application was filed in connection with the will and testament dated 02. 01. 2000 of Dr. Swapan Bose Roychowdhuri being Probate Case No. 304/2000. In connection with the said probate application an original suit was filed before the learned District Judge, Alipore, 24-Parganas (South) on 24. 05. 2001 by Pratul Bose Roychowdhuri with regard to a Will and testament dated 02. 01. 2000 of Dr. Swapan Bose Roychowdhuri and the same was numbered as Original Suit No. 304/2000.
( 6 ) IN spite of pendency of the aforesaid proceedings, the said Pratul Bose roychowdhuri filed a petition of complaint on 19. 04. 2003 with alleged offences under section 419/467/468/469/471/120b of the Indian Penal Code and the sa
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