Back
MADRAS HIGH COURT
RAMASWAMI
Subayya Gounder
Versus
Bhoopala Subramanian
Criminal Revn. Case No. 348 and Criminal Revn. Petn. No. 342 of 1957
Decided On : 6 August, 1957
MAINTENANCE - BLOOD TEST - COMPULSORY BLOOD TEST - SECTION 488 CR.P.C. - ARTICLE 20(3) OF THE CONSTITUTION - TESTIMONIAL COMPULSION - SCOPE AND APPLICABILITY - CRIMINAL CASES - QUASI-CIVIL PROCEEDINGS - DISTINCTION - MAINTENANCE PROCEEDINGS - NOT CRIMINAL PROCEEDINGS - NO COMPULSORY BLOOD TEST - REFUSAL TO SUBMIT TO BLOOD TEST - RELEVANCE AND CONSEQUENCES.
Fact of the Case:
In a maintenance proceeding under Section 488 Cr.P.C., the petitioner, a minor, sought an order directing the respondent, Subbayya Gounder, to give his blood for blood grouping test to decide the paternity of the petitioner. The Magistrate allowed the petition, but Subbayya Gounder challenged the order, contending that there was no provision in the Code of Criminal Procedure or the Indian Evidence Act permitting the court to direct such a test and that the order was made without his lawyer being present.
Finding of the Court:
The court held that there is no provision in the Code of Criminal Procedure or the Indian Evidence Act empowering courts to direct a blood test in maintenance proceedings. The court further held that the compulsory direction by the Magistrate to the defendant to give his blood for blood test being made cannot be supported as it would amount to testimonial compulsion, which is prohibited under Article 20(3) of the Constitution. The court distinguished between criminal cases and quasi-civil proceedings like maintenance proceedings, holding that the object of maintenance proceedings is not to punish the husband or parent and that the sanctions of criminal procedure are remissable by the crown or State, while in quasi-civil matters, the claims must succeed or fail based on the burden of proof as set out in the Indian Evidence Act.
Issues: 1. Whether a court can direct a compulsory blood test in maintenance proceedings under Section 488 Cr.P.C.? 2. Whether such a direction would amount to testimonial compulsion prohibited under Article 20(3) of the Constitution?
Ratio Decidendi: 1. The court held that there is no provision in the Code of Criminal Procedure or the Indian Evidence Act empowering courts to direct a blood test in maintenance proceedings. The court relied on the decision of Raghava Rao, J. in Venkateswarlu v. Subbayya, wherein it was held that if the parties are unwilling to submit to such a test, the Court has no power to direct them to submit themselves to such a test. 2. The court held that the compulsory direction by the Magistrate to the defendant to give his blood for blood test being made cannot be supported as it would amount to testimonial compulsion, which is prohibited under Article 20(3) of the Constitution. The court distinguished between criminal cases and quasi-civil proceedings like maintenance proceedings, holding that the object of maintenance proceedings is not to punish the husband or parent and that the sanctions of criminal procedure are remissable by the crown or State, while in quasi-civil matters, the claims must succeed or fail based on the burden of proof as set out in the Indian Evidence Act.
Final Decision: The court allowed the revision petition and set aside the Magistrate's order directing the respondent to give his blood for blood grouping test.
ORDER :- This is a Criminal Revision filed against the order made by the learned Additional First Class Magistrate, Coimbatore in M. C. No. 5 of 1957.
2. Minor Bhoopala Subramanian by his mother Muthammal filed a petition for maintenance under Sec. 488 Cr. P.C. The respondent Subbayya Gounder was containing that he is not the father of the petitioner. In these circumstances the mother of the petitioner prayed for an order that the respondent be directed to Rive his blood for being sent to the Chemical Examiner of Madras along with that of the petitioner for blood grouping test to decide the paternity of the petitioner. The learned Magistrate passed an order that no objection was advanced by the other side and that hence the petition was allowed.
3. The contention of Subbayya Gounder is that on the date when this order was made his lawyer was unavoidably absent from Court and that therefore the order that there was no objection and hence the petition was allowed is incorrect. In addition it is contended that the learned Magistrate ought to have upheld the contentions of this Subbayya Gounder that there is no provision under the Code of Criminal Procedure or under the Indian Evidence Act which would permit the court to direct that the blood of this Subbayya Gounder be taken for blood grouping.
4. The points for exposition in this Revision are five in number viz., (a) technique of blood test; (b) the value of blood test; (c) the law on this subject in various countries; (d) how far such order could in criminal cases be held to be testimonial compulsion offending Art. 20(3) of the Constitution and (e) how far this compulsory blood test can be extended to proceedings under S. 488 Cr. P.C.
5. Point (a) : The principle on which blood grouping is done is as follows : Human blood contains two distinct sets of characters; one set are called A and O, the other M and N. The possible combinations of these make definite number of blood groups. The blood group of a person is determined by the characters which it contains. It must contain at least one character of each set, and the characters are inherited according to fixed rules. A child cannot have a character which he does not inherit from one or other of his parents.
The technic of this blood grouping which has been developing with the passage of years and a vast literature on this subject has now sprung up and the gist of which can be studied in the authoritative treatises on Medical Jurisprudence and cannot be further dealt with here : See Glaisters Medical Jurisprudence and Toxicology, Ninth Edition (1953) page 342 and following; Taylors Principles and Practice of Medical Jurisprudence, Tenth Edition, page 417. Vol. I, for details of the test, and for references to Rhesus factor, see pages 419 and 423 of Vol. I., and the Addendum to volume II; Gonzales, Vance. Helporn and Umberger on Legol Medicine. Pathology and Toxicology, Second Edition (U.S.A.) Chapter 27, under the heading; "The Human Blood Groups"at page 634 and following; Modis Medical Jurisprudence and Toxicology. 12th Edition, at page 100 and following; and Lyons Medical Jurisprudence for India by Greval, Tenth Edition, page 324 and following.
6. Point (b) : The value of the test is however limited. Glaister (Ibid) has the following to say :
"Blood grouping may be of considerable value forensically in helping to establish the guilt or innocence of accused persons or in disproving parenthood in certain cases of disputed paternity. The blood of all persons falls within one of four main groups classified as Group O, Group A, Group B. and Group AB. It must be admitted that, from the medico-legal point of view, the grouping test has many limitations at the present time, but the advances which are being made both rapidly and progressively by many research workers are steadily rendering it more valuable. One of the most important of these limitations lies in the fact that approximately 89 per cent of all bloods belong to groups O
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
