IMPORTANT POINT
The main legal point established in the judgment is that the court's power to summon witnesses or examine persons present at any stage of the trial does not extend to creating fresh evidence, especially after the trial has commenced.

JUDGMENT :

Moushumi Bhattacharya, J.

1. The present criminal revision arises out of an order passed by the learned Special Judge (POCSO), South Andaman District in Special Case No. 58/2018 and Special Trial No. 68/2019.

2. The impugned order was passed on 20.11.2023 on an application filed by the prosecution for taking blood samples of the accused, the victim girl and the minor baby of the victim girl for the purpose of DNA profiling. The order records that the victim girl was present before the Court on the day when the order was passed and filed her consent for collection of her blood sample and that of her baby for DNA profiling.

3. The learned Court directed the Investigating Officer/Station House Officer (IO/SHO) of the Pahargaon Police Station to produce the accused, victim girl and the minor child of the victim girl before the Medical Superintendent of GB Pant Hospital for collection of blood samples for DNA analysis and thereafter send the samples to CFSL laboratory for further reports.

4. The petitioner was the Accused before the Special Court .

5. Learned counsel appearing for the petitioner argues that the application for DNA test was made by the prosecution to fill up the lacunae in the prosecution case and after commencement of trial. Counsel places the dates relevant to the argument and submits that the application was made after commencement of cross-examination in April, 2023. Counsel submits that a Special Public Prosecutor appointed under section 32 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 does not have the power to direct the police to act in an investigative capacity. Counsel submits that the accused was prejudiced since the Special Court directed the victim to appear once again after the examination of the victim had been completed.

6. The Learned Public Prosecutor appearing for the prosecution urges that the invocation of section 53-A of the Cr.PC cannot be faulted. Counsel relies on (Malappa @ Malingaraya vs. State of Karnataka and another) Single Bench decision of the Karnataka High Court in writ petition No. 201162/2021 in support of his argument. It is submitted that section 53-A can be invoked for the purpose of adducing additional evidence at any point of time.

7. The dates relevant to the adjudication on the legality of the impugned order are as follows. The statement of the victim girl, who was 17 years on the date of the complaint, was recorded on 29.09.2028. The victim girl and the accused had a physical relationship and the victim girl became pregnant thereafter. The FIR was lodged on 29.09.2018 under section 6 of the POCSO Act, 2012 and registered at Pahargaon Police Station. The Chargesheet was submitted on 17.02.2019. The victim girl in the meantime delivered a child on 22.01.2019. Charges were framed on 06.09.2019. Examination of the witnesses commenced on and from 21.04.2023 with the examination PW-1 (victim), PW-2 (doctor) on 08.08.2023 and PW-3 (victim’s mother) on 01.11.2023. The application of the prosecution for collecting the blood samples of the accused, the victim girl and her child was made on 11.09.2023. The impugned order was passed on 20.11.2023.

8. From a careful reading of the impugned order, the reasons for allowing the application appears to be the presumption of paternity of the child born to the victim girl. The Ld. Special Court was of the view that the question of paternity of the minor child should not be left undecided in light of Article 21 of the Constitution. The Ld. Court relied on section 53-A of the Cr.PC which provides for examination of the accused suspected of committing rape and 3 decisions of the Supreme Court and of the Madhya Pradesh High Court on the necessity of a DNA test report in that regard.

9. The invocation of section 53-A of the Cr.PC must be placed in the context of the stage in which the application was made by the prosecution. The relevant part of section 53-A is set out:

“53-A Examination of person accused of rape b