The trial court can use its inherent powers to order a blood test of the accused, depending on the facts and circumstances of the case, even in the absence of specific provisions.

JUDGMENT

Arvind Singh Sangwan, J. - Prayer in this petition is for setting aside the order dated 26.02.2021, vide which the trial Court has allowed an application, filed by the prosecution, for taking blood sample of the petitioner for DNA test.

2. Learned counsel for the petitioner has argued that as per allegations in the FIR, the petitioner has committed rape on a minor girl and the FIR No. 151 dated 30.09.2020 was registered under Sections 363, 366-A, 376(3) of the IPC and Section 6 of the POCSO Act, 2012 at Police Station Sadar, District Hoshiarpur.

3. Learned counsel further argued that after the registration of the aforesaid FIR, the petitioner was arrested and during investigation, while conducting the medico-legal examination of the prosecutrix, her blood sample was taken and sent to FSL, Mohali but the FSL raised an objection that the blood sample of the accused be also sent to give a definite opinion.

4. Therefore, the prosecution moved an application before the trial Court seeking permission to get the blood sample of the petitioner/accused for sending the same to FSL, Mohali and the same was allowed, vide impugned order dated 26.02.2021. The operative part of the order reads as under:

"4. After having heard the learned counsel for the parties and after having perused the record, it is found that accused is facing charges before this Court under Sec. 363, 366A, 376(3) IPC 1860 and Sec. 4 of POCSO Act, 2012, for kidnapping the minor prosecutrix from the lawful guardianship of her parents, for committing repeated rape upon prosecutrix under 16 years of age and for coming penetrative sexual assault upon minor prosecutrix. Report under Sec. 173 Cr.PC submitted in this court also reveals that it is mentioned therein that the parcel of medical swabs sent to FSL, Mohali for examination, but the same have been returned back with objections. The copy of said objections dated raised by Scientific Officer (Serology), Forensic Science Laboratory, Punjab Phase-IV, SAS Nagar, dated 18.11.2020 is placed on the record, in which it is mentioned that blood sample of accused is also necessary in this case. Now by moving present application, the prosecution/Investigating Agency is seeking permission of the court to take the blood sample of accused in order to comply with the objection raised by the FSL, Mohali. The said application has been assailed mainly by the learned counsel for accused on the ground that the accused has already been medically examined, investigation is over, challan is already filed and at this stage, he cannot be reexamined for taking his blood sample and it is against his fundamental right. In reply to this, the learned Addl. PP for the State has submitted that since there are allegations of rape against the accused, therefore, his blood sample is necessary for DNA test, especially when the FSL raised objection in this regard where the medical swabs of prosecutrix were sent for examination. In this case, no doubt report under Sec. 173 Cr.PC is already filed, but while presenting the report under Sec. 173 Cr.PC, it is particularly mentioned that in the present case, two swab parcels of prosecutrix went sent vide Road No. 409/20 dated 18.11.2020 along with Docket No. 961/FSL dated 17.11.2020 through ASI Balbir Singh for depositing the same in Forensic Science Laboratory, SAS Nagar, Mohali, but the same were returned in the police station with objections and now the objections are being complied with. After getting the needful done from the concerned Doctor, the same will be deposited in FSL, Mohali and after receiving report, the same will be attached with the challan. In such type of cases, taking of blood sample of accused for DNA test is necessary. The citation Krishan Kumar Malik versus State of Haryana (supra) relied upon by the learned counsel for accused, is not applicable to the case in hand, being distinct from case in hand. However, in AK Partap versus Central Bureau of Investigation, Crl. MC 4013 of 2017,