Point of law: Examination of the accused contemplated under Section 53 of Cr.P.C includes taking of blood from the accused and even an accused on bail falls within the ambit of Section 53 of Cr.P.C.

ORDER :

Accused Nos.1 and 2 in crime No.128 of 2016 in Kenichira Police Station, Wayanad have filed this petition under Section 482 of Cr.P.C. with the following prayers.

“1. To call for the Original of Annexure 4 order dated 24.08.2022 in CMP No.216/2022 in SC No.219/2020 of the Special court, Mananthavadi and all records connected to it and to quash the same as illegal and unjustifiable.

2. To effectively mould the remedy and grant such other and further relief/reliefs as the petitioners may pray for from time to time and which this Honourable Court deems fit and proper to grant in the interests of justice”.

2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor.

3. Pertinent legal questions arise for consideration in this matter;

(a) whether a direction can be issued by a competent court to the accused to subject himself/themselves for blood test?

(b) Can such a direction be issued even after filing final report?

4. In this matter, after filing final report and when the Forensic Science Laboratory requested the Investigating Officer to furnish the blood samples found in the materials collected from the place of occurrence, the sample of the blood to be tested also was required, the Investigating Officer approached the court and sought for a direction to the accused (petitioners herein) to appear before the Investigating Officer for collecting their blood samples. The learned Special Judge allowed the application after appreciating the contention raised by the Investigating Officer as well as the petitioners herein, as per Annexure A4.

5. It is submitted by the learned counsel for the petitioners that Annexure A4 order is illegal. Annexure A4 is intended to fabricate evidence against the petitioners and the same is not permissible under law. He further submitted that as per the letter issued by the Investigating Officer to the Forensic Director, presence of bloodstain in the materials forwarded was sought to be ascertained and on finding presence of bloodstain, the same was sought to be tested for the purpose of identifying blood group, DNA etc. Thereafter, a letter was issued by the Analyst seeking further materials and acting on the said letter, initially, the Investigating Officer directed the petitioners to appear before him for collecting the blood samples, on the premise that there was court order in this regard. When the petitioners noticed that no such order was passed by the court, immediately, the Investigating Officer filed a petition as CMP 216 of 2022 in this regard. Annexure A2 is the copy of said petition and Annexure A3 is the copy of the objection filed by the petitioners.

6. After appraising the contentions, as per Annexure A4 dated 24.08.2022, the Special Court directed the petitioners to appear before the Investigating Officer for collecting their blood samples as and when required in writing by the Investigating Officer.

7. According to the learned counsel for the petitioners, the above order is illegal and the same would prejudice the accused. Further, the same amounts to testimonial compulsion and right against self incrimination protected under article 20(3) of the Constitution of India.

8. Controverting this contention, the learned Public Prosecutor would submit that the Investigating Officer is having ample power under Section 53 of Cr.P.C. to collect blood samples and therefore, he sought assistance of the court in this regard and accordingly, Annexure A4 was passed. Since Annexure A4 does not suffer from any infirmity, the same is not liable to be interfered. He submitted further that directing the accused to give blood samples for examination as provided under Section 53 of Cr.P.C. does not violate right against self incrimination.

9. Be on the crux of the matter, it is to be noted that as per the allegation of the police in crime No.128 of 2006, which was later re-numbered as crime No. 106/CB/KKB & WYD/18, the prosecution alleges commission of offences under Sections 302,