Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Del) 914

IN THE HIGH COURT OF DELHI AT NEW DELHI
Manoj Kumar Ohri, J.
Ram Udagar Mahto - Appellant
Versus
State - Respondent
Crl.M.C. 3125 of 2019 and Crl M.A. 12857 of 2019
Decided On : 14-09-2021

Advocates appeared:
Mr. Arvind Kumar Gupta, Advocate, with Mr. Rishi Bhardwaj, Advocate, Mr. Vikas Pahwa, Sr. Advocate, (Amicus Curiae) with Ms. Raavi Sharma, Advocate, for the Appellant; Ms. Radhika Kolluru, APP for State with SI Jay Kishan, P.S. Saket, for the Respondent.

The impugned direction for obtaining fresh blood samples at the stage of trial did not amount to further investigation, reinvestigation, or fresh investigation, and it did not infringe the petitioner's fundamental right against self-incrimination. The court emphasized the importance of fair and speedy trial in the dispensation of justice.

Headnote:
Section 482 Cr.P.C. - Challenge to order dated 15.05.2019 passed by the learned Additional Sessions Judge-01 (South), Special Court (POCSO), Saket Courts, New Delhi in CIS/SC No. 7202/2016 arising out of FIR No. 220/2014 registered under Section 377 IPC and Sections 4/6 of the POCSO Act - The court discussed the legality of obtaining fresh blood samples of the accused at the stage of trial and its implications on the investigation. The court analyzed the concepts of further investigation, reinvestigation, and fresh investigation and their applicability in the present case. It also examined the constitutional rights of the accused against self-incrimination and the need for fair and speedy trial. The court upheld the impugned order and dismissed the petition, directing the Trial Court to proceed further with the case.
Fact of the Case:

The petitioner filed a petition under Section 482 Cr.P.C. challenging the order passed by the Additional Sessions Judge-01 (South), Special Court (POCSO), Saket Courts, New Delhi. The case arose from an FIR registered under Section 377 IPC and Sections 4/6 of the POCSO Act, involving allegations of sexual assault on a child. The petitioner contested the direction for obtaining fresh blood samples at the stage of trial, citing violation of constitutional rights and delay tactics by the prosecution.
Finding of the Court:

The court held that the impugned direction did not amount to further investigation, reinvestigation, or fresh investigation, as it did not wipe out the earlier investigation. It also concluded that the direction did not infringe the petitioner's fundamental right against self-incrimination. The court emphasized the importance of fair and speedy trial, upholding the impugned order and dismissing the petition.
Issues: The primary issue involved whether the direction for obtaining fresh blood samples of the petitioner amounted to further investigation, reinvestigation, or fresh investigation. The court also addressed the constitutional rights of the accused against self-incrimination and the potential delay in the trial due to the impugned direction.
Ratio Decidendi: The court clarified the concepts of further investigation, reinvestigation, and fresh investigation, emphasizing the continuation of the earlier investigation in the present case. It also highlighted the applicability of constitutional rights against self-incrimination and the need for fair and speedy trial in the dispensation of justice.
Final Decision: The court upheld the impugned order and dismissed the petition, directing the Trial Court to proceed further with the case. The Trial Court was instructed to ensure expeditious examination of the relevant blood samples by the FSL.

JUDGMENT

Manoj Kumar Ohri, J. - The present petition has been filed under Section 482 Cr.P.C. assailing the order dated 15.05.2019 passed by the learned Additional Sessions Judge-01 (South), Special Court (POCSO), Saket Courts, New Delhi in CIS/SC No. 7202/2016 arising out of FIR No. 220/2014 registered under Section 377 IPC and Sections 4/6 of the POCSO Act at P.S. Saket, Delhi.

2. The brief facts necessary for the disposal of the present petition are that on 28.03.2014, the complainant had sent her son, aged about 4 years, along with her driver Ram Avtar (the petitioner herein) to her parental house. On the next day, the child victim complained to his mother of pain in his rectum. On being asked by the complainant/mother, the child victim narrated that the petitioner had inserted his penis in the child's anus. After the arrival of complainant's brother from abroad, a police complaint was made. During investigation, the medical examination of the child victim as well as the petitioner was conducted and the MLCs prepared. The relevant samples, including blood samples of the petitioner and the child victim and the underwear of the child victim were seized by the Investigating Officer for forensic examination. On 11.04.2014, these samples were taken to the FSL, Rohini. While the FSL report was awaited, the Investigating Officer filed the charge sheet under Section 377 IPC and Sections 4/6 of the POCSO Act on 05.05.2014 without annexing the FSL report.

3. Subsequently, charge was framed and vide order dated 16.07.2015, the Trial Court allowed an application filed by the complainant for alteration of the charge. On this date, the Director, FSL, Rohini was also asked to explain the delay in preparation of the FSL report. The case was put up on 14.08.2015 for examination of the child victim.

4. On receipt of the FSL report dated 07.08.2015, the Investigating agency filed it before the learned Addl. Sessions Judge. In the FSL report, it was stated that though a DNA profile was generated from the underwear of the child victim, no DNA profile could be generated from the blood samples of the petitioner and the child victim. As a result, the DNA profile generated from the underwear of the child victim could not be matched with the DNA of the petitioner. It was stated in the report that if required, fresh blood samples of both the child victim as well as the petitioner may be provided to determine whether or not the DNA generated therefrom matches with the DNA profile generated from the underwear of the child victim.

5. In the meantime, the trial had proceeded and twelve prosecution witnesses were examined. The FSL report was proved by Indresh Kumar Mishra, who was examined as PW-13, on 17.07.2018. After his examination, the Investigating Officer filed an application before the Trial Court on 26.10.2018 seeking permission for obtaining fresh blood samples of the petitioner and the child victim as the ones collected earlier had putrefied.

6. This application was contested on behalf of the petitioner. It was not only contended that the application filed by the Investigating Officer was an attempt to delay the proceedings and fill up the lacuna in the prosecution case, but also that asking for the petitioner's fresh blood sample at the stage of trial amounted to reinvestigation which could prejudice his defence. It was also contended that the same was violative of Articles 20(3) and 21 of the Constitution of India. After hearing arguments of both sides, the Trial Court vide the impugned order held that there was no bar in Section 53 Cr.P.C. for retaking of the blood sample of an accused at the stage of trial. It was also observed that the Investigating Officer had the right to further investigate under Section 173(8) Cr.P.C even at the stage of trial. The application was allowed and it was directed that the petitioner and child victim be medically examined by a registered medical practitioner to obtain their fresh blood samples.

7. Aggrieved by the