The court affirmed that the right to a fair trial encompasses the collection of crucial evidence, even if there are delays in procedural matters.

ORDER

This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita , 2023, challenging Annexure A6 order in CMP.No.403/2024 dated 29.07.2024 in S.C.No.679/2022 on the files of the Special Court for the trial of offences against Children from Sexual Offences Act (`POCSO' for short), Haripad, arose out of Crime No.903/2016 of Mannar Police Station.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents, including Annexure-A6 order.

3. It is submitted by the learned counsel for the petitioner that, in this matter, the prosecution evidence was completed, where the petitioner alleged to have committed offence punishable under Section 376 of the Indian Penal Code (` IPC ’ for short) as well as Section 3 r/w S.4 and Section 8 read with S.7 of the POCSO Act. At this stage, the learned Special Judge considered a petition filed by the prosecution earlier in 2017, and in consideration of the same, the learned Special Judge ordered the accused to appear before the S.H.O, Edathua Police Station, on 09.08.2024 and the SHO was directed to produce the accused before the Forensic Department of the Medical College Hospital, Alappuzha, for taking blood sample to conduct D.N.A. profiling of the blood sample of the accused with the human semen and spermatozoa found in the material objects collected during the investigation of the case, for getting report of D.N.A. profiling of the petitioner/accused. It is submitted by the learned counsel for the petitioner further that even though as per the decision of this Court reported in [2022 KHC OnLine 747] , Thankappan V.E and another v. State of Kerala , this Court held that even after filing the final report, the investigating officer has ample power to investigate a crime and to file further report in view of the mandate of Section 173 (8) of Cr.P.C, on the basis of further evidence, either oral or documentary and Annexure-A6 order was passed relying on the said decision, that doesn’t take away the right of the accused for fair trial in a case where evidence was already recorded. He also submitted that though the petition was filed much earlier, the court failed to consider the same in time. Belated consideration of the same would go against the interest of the accused and in such view of the matter, Annexure A6 would require interference.

4. Opposing this contention, the learned Public Prosecutor submitted that, in fact, this petition for conducting D.N.A. profiling of the accused was filed much earlier on 16.08.2017 and the Special Court, which dealt with the matter during the relevant time, failed to consider the same and it was noticed by the Special Court now dealing with the matter, and accordingly, the learned Special Judge allowed the same, with a view to collect a very material piece of evidence. Therefore, the order doesn’t require any interference, as no prejudice would be caused to the accused when the prosecution seeks further investigation to collect material evidence.

5. Having considered the rival arguments, the legal position regarding the power to investigate further under Section 173 (8) of Cr.PC is well settled. In Thankappan V.E and another v. State of Kerala’s case (supra), in paragraph No. 16, this Court stated as under:

16. The above discussion would lead to the conclusion that collection of blood samples from the accused is legally permitted as part of the investigation under Section 53 of Cr.P.C. read with Explanation(a). Therefore, it is well within the power of a competent criminal court to direct an accused to subject himself for blood test and the said power can be exercised even after filing final report, in an appropriate case involving facts narrated in this case. Hence, the Special Court rightly allowed the application of the Investigating Officer directing the petitioners herein/accused to subject themselves for blood test.

6. In this case the application nu