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2018 Supreme(Mad) 3684
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. ANAND VENKATESH, J.
M. Muthukumar - Appellant
Versus
Inspector of Police All Women Police Station - Respondent
Criminal Original Petition No. 6279 of 2017, Criminal Miscellaneous Petition No. 4216, 4974, 6644 of 2017
Decided On : 28-09-2018
D. Shanmugaraja Sethupathi, Adv., K. Suyambulinga Bharathi, Adv., P. Krishnasamy, Adv.
An accused person, even if released on bail, can be considered to be detained in the constructive custody of the Court and can be subjected to DNA testing. DNA profiling of an accused person does not amount to testimonial compulsion.
Headnote:
DNA Test - Criminal Procedure - Section 53, Section 53A of the Code of Criminal Procedure - The court discussed the applicability of Section 53 and 53A of the Code of Criminal Procedure in the context of an accused person obtaining anticipatory bail and resisting a DNA test. The court referred to various judgments including Thaniel Victor Vs State, Anil Anatrao Lokhande Vs The State of Maharastra, Krishnan Kumar Malik Vs. State of Haryana, Saranya Vs. State, and Goutam Kundu Vs State of West Bengal to establish that an accused person, even if released on bail, can be considered to be detained in the constructive custody of the Court and can be subjected to DNA testing. The court also highlighted that DNA profiling of an accused person does not amount to testimonial compulsion and that Section 53A of the Code of Criminal Procedure was introduced to facilitate the prosecution to prove its case against the accused. The court concluded that the case had no merits and dismissed the criminal original petition.
Fact of the Case:
The petitioner, an accused in a rape case, challenged the order directing him to undergo a DNA test. The petitioner argued that since he had obtained anticipatory bail, he could not be subjected to a DNA test under Section 53 and 53A of the Code of Criminal Procedure. The petitioner also contended that the order for DNA testing amounted to self-incrimination and violated Article 20(3) of the Constitution of India.
Finding of the Court:
The court found that an accused person, even if released on bail, can be considered to be detained in the constructive custody of the Court and can be subjected to DNA testing. The court also established that DNA profiling of an accused person does not amount to testimonial compulsion and that Section 53A of the Code of Criminal Procedure was introduced to facilitate the prosecution to prove its case against the accused. The court concluded that the case had no merits and dismissed the criminal original petition.
Issues: The issues involved in the case were the applicability of Section 53 and 53A of the Code of Criminal Procedure to an accused person who had obtained anticipatory bail, and whether the order for DNA testing amounted to self-incrimination and violated Article 20(3) of the Constitution of India.
Ratio Decidendi: The court established that an accused person, even if released on bail, can be considered to be detained in the constructive custody of the Court and can be subjected to DNA testing. The court also highlighted that DNA profiling of an accused person does not amount to testimonial compulsion and that Section 53A of the Code of Criminal Procedure was introduced to facilitate the prosecution to prove its case against the accused.
Final Decision: The court found that the case had no merits and dismissed the criminal original petition.
N. ANAND VENKATESH, J.
1. This petition has been filed by the accused, aggrieved by the order passed by the learned Judicial Magistrate-I, Sivagangai, dated 21.04.2017, wherein the petitioner has been directed to subject himself to DNA test and for that purpose to give his blood sample.
2. The first respondent Police have registered an FIR in Crime No.4 of 2017 against the petitioner, based on a complaint given by the second respondent for the offence under Sections 417, 376 and 506(ii) of IPC.
3. The sum and substance of the allegation made by the second respondent is that the petitioner called her to his house on 22.09.2015 at about 7.00pm and when the second respondent went to the house of the petitioner, he forcibly tied Thaali in the second respondent's neck. When the second respondent protested, the petitioner again asked her to come home next day in order to remove the Thaali and believing him, the second respondent went to the petitioner's house and at that point of time, the petitioner raped the second respondent. The second respondent became pregnant and she gave birth to a female child on 24.06.2016. It was on this ground, the complaint was given and the FIR was registered by the respondent Police.
4. The respondent Police during the course of investigation, filed an application before the Judicial Magistrate-I, Sivagangai, seeking for taking DNA test for the petitioner, the second respondent and also the child and for that purpose, wanted to direct the petitioner to give his blood sample. The Judicial Magistrate passed an order on the requisition made by the respondent Police.
5. The learned Counsel for the petitioner would submit that the learned Judicial Magistrate should have given an opportunity to the petitioner before directing the petitioner to subject himself to the DNA test. The learned Counsel for the petitioner further submitted that under Section 53 and 53A of the Code of Criminal Procedure, only a person, who has been arrested on a charge of committing of an offence of rape can be subjected to DNA test. In the present case, the petitioner obtained an anticipatory bail and he was not arrested and therefore the respondent Police do not have power to invoke Section 53 and 53A of the Code of Criminal Procedure. The learned Counsel would further submit that Article 20(3) of the Constitution of India gives protection to an accused person against self-incrimination and the order passed by the Court below will subject the petitioner to self-incrimination and therefore, the order passed by the Court below has to be set aside.
6. The learned Government Advocate would submit that an accused in a rape case has to subject himself to DNA test in the course of investigation and the Hon'ble Supreme Court has already held that the protection under Article 20(3) of the Constitution of India will not be available to such an accused person. The learned Government Advocate also brought to the notice of this Court Section 53 and Section 53A of the Code of Criminal Procedure and submitted that the Police have sufficient powers to seek for a direction from the Court to make an accused person undergo a DNA test in a case of rape. The learned Government Advocate also brought to the notice of this Court that the Police have already filed a final report and the same has taken cognizance by the Court below and the case is pending trial. Therefore, the present petition filed by the petitioner challenging the order passed by the learned Judicial Magistrate -I, Sivagangai in the course of investigation, has become infructuous and there is nothing to be decided in this Criminal Original Petition.
7. The learned Counsel for the second respondent/wife apart from adopting the arguments of the learned Government Advocate also submitted that the petitioner has committed a grave crime and has stalled the entire proceedings before the Court below by citing the pendency of this Criminal Original Petition. The learned Counsel would therefore
