The procedure for collection and forwarding of samples for DNA fingerprinting analysis is merely directory and not mandatory, and the court has the discretion to direct the collection of blood samples in the presence of the prosecutrix and an appointed authority.

G.S. AHUWALIA, J.

1. This petition under Section 482 of Cr.P.C. has been filed against the order dated 16.1.2009 by which it was directed that the blood samples of the applicant be recollected in the presence of the prosecutrix as well as a lady advocate who has standing of at least 10 years of practise for the purposes of sending the same for DNA test from any lab except the State Forensic Science Laboratory, Sagar.

2. The necessary facts for the disposal of this application lies in a narrow compass.

The prosecutrix had filed a complaint against the applicant alleging that she was subjected to rape on 22.7.2007. An order under Section 156(3) of Cr.P.C. was passed and the police after recording FIR started the investigation. During investigation the DNA test of the applicant was conducted and a report was received from the State Forensic Science Laboratory, Sagar that the DNA of the applicant does not match with the sperms found on the Petikot as well as vaginal swab of the prosecutrix. An objection was raised by the prosecutrix that as the applicant is financially sound, therefore, he has got the DNA test report managed. Accordingly, it was prayed that a fresh DNA test be conducted.

3. By order dated 16.1.2009 it was directed that the blood samples of the applicant be recollected in the presence of the complainant and a lady advocate having a standing of 10 years of practise. The said order has been challenged by filing this petition under Section 482 of Cr.P.C.

4. During the pendency of the petition, a report was submitted by SDO(P), Ambah, District Morena before the Court of JMFC, Ambah on 19.6.2015 in which it was mentioned that in view of the DNA report sent by State Forensic Science Laboratory, Sagar it is clear that the applicant has not committed the offence of rape. The said report was objected by the counsel for the respondent No.1 alleging that she is not satisfied with the report of the State Forensic Science Laboratory, Sagar and, therefore, a fresh DNA test be conducted and the report be summoned from any private laboratory. The said submission of the respondent No.1 was opposed by the Public Prosecutor. By the order dated 19.6.2015 it was directed that the fresh DNA test be got conducted from any State Forensic Science Laboratory except Sagar and a fresh report be submitted. On 23.12.2015, it was further directed that in compliance of the order dated 16.1.2009 since the fresh report has not been submitted, therefore, prosecution was directed to file the fresh DNA test report of the applicant.

5. It is submitted by the counsel for the applicant that as it is clear from the order dated 23.12.2015 that the Magistrate had directed to comply with the order dated 16.1.2009 and, therefore, it cannot be said that a fresh cause of action has arisen by order dated 19.6.2015, thus the present petition against the order dated 16.1.2009 is still maintainable.

6. It was submitted by the counsel for the applicant that once a report has been given by the State Forensic Science Laboratory, Sagar to the effect that the DNA of the applicant do not match with the DNA found on the clothes and the vaginal swab of the prosecutrix, therefore, merely on the saying of the prosecutrix it would not be appropriate to direct for fresh DNA test.

7. Per contra, it is submitted by the counsel for the respondent that it is the case of the prosecutrix that she was subjected to rape by the applicant on 22.7.2007 and as the applicant is financially sound, therefore, he has managed to get a favourable DNA test report from the concerning Forensic Science Laboratory. Under these circumstances, in order to do complete justice, if the Magistrate has directed for conducting a fresh DNA test then it cannot be said that any illegality has been committed by the Magistrate.

8. Heard the learned counsel for the parties and perused the documents filed along with the petition.

During the course of argument, learned counsel for the applicant confined his argumen