The court ruled that failure to provide notice to the petitioner regarding further investigation does not render the subsequent order invalid; DNA evidence collection is vital in POCSO cases.

ORDER :

K.Murali Shankar, J.

The Criminal Revision is directed against the order passed in M.P.No.1 of 2024 in Spl.S.C.No.152 of 2023 dated 15.10.2024 on the file of the Principal Special Court for Exclusive Trial of Cases under POCSO Act, Theni, allowing the petition filed under Section 173(8) of the Code of Criminal Procedure for further investigation.

2. On the basis of the complaint lodged by one Savithiri alleging sexual assault against her minor daughter, FIR came to be registered in Crime No.268 of 2022 against the petitioner herein for the alleged offences under Sections 9(m) and 10 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. After completing the investigation, the respondent police has filed the final report against the petitioner for the alleged offences under Sections 5(m), 6, 9(m) r/w 10 of the POCSO Act and Section 376(AB) IPC and the case was taken on file in Spl.S.C.No. 152 of 2023 and is pending on the file of the Principal Special Court for Exclusive Trial of Cases under POCSO Act, Theni.

3. It is not in dispute that when the trial was in part-heard stage, the prosecution filed a petition under Section 173(8) Cr.P.C. seeking further investigation alleging that DNA (Deoxyribonucleic acid) test was not at all conducted.

4. The case of the prosecution is that on 08.07.2022 at about 06.00 p.m., when the defacto complainant's minor daughter aged about 10 years went for tuition, the petitioner, who was working as a watchman in Seventh Day Adventist Matriculation Nursery and Primary School, intercepted the victim child in front of the said school and took the victim child to upstairs of the said school and committed an aggravated sexual assault with the victim child and on coming to know about the occurrence from the victim child, her mother lodged the police complaint.

5. The prosecution case, as projected in the petition filed under Section 173(8) Cr.P.C., is that the Scientific Officer, Regional Forensic Science Laboratory (RFSL), Madurai has been examined as P.W.16 and through him, Biology and Serological Reports came to be exhibited as Ex.P.11 and Ex.P.12 respectively, that P.W.16 has given evidence that semen was detected on Item No.1 gauze cloth and hence, the same was forwarded to DNA Division RFSL, Madurai for DNA profiling, that they came to know about the letter of the Deputy Director of RFSL, Madurai dated 01.08.2024 that DNA typing results obtained for the Item No.1 gauze piece is kept in records of MDU/DNA/207/2022, that the prosecution has then come to know that FTA (Flinders Technology Associates) card was not at all collected from RFSL till date, that the report of the DNA in MDU/DNA/207/2022 has to be compared with the DNA of the accused, which is essential to prove the prosecution case and to arrive at correct decision of the case and that since the investigating agency has not taken steps to receive the FTA card from the Laboratory and to collect the blood samples or semen from the accused, they were constrained to file the above petition under Section 173(8) Cr.P.C.

6. The main contention of the petitioner is that no notice was given to the petitioner in the petition filed for further investigation and that the learned Sessions Judge, without hearing the petitioner's side and without giving any opportunity to oppose the petition for further investigation, has passed the impugned order dated 15.10.2024 directing further investigation.

7. No doubt, as rightly pointed out by the learned counsel appearing for the petitioner, the petitioner was not given any notice in respect to the petition in M.P.No.1 of 2024 nor was given any opportunity to oppose the said petition.

8. Considering the above fact situation, this Court has afforded an opportunity to the petitioner's side to raise objections with regard to the petition filed under Section 173(8) Cr.P.C. for further investigation.

9. The learned counsel appearing for the petitioner would submit that as per the evidence of P.W.16, blood