O R D E R

Both the above Criminal Appeals are filed by the de facto complainant in S.C.No.363 of 2014 on the file of the Sessions Court, Pathanamthitta, under section 14A of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989. The 2nd respondent herein is the sole accused in the said case, where the offence alleged against him are under Sections 376 and 420 IPC read with Section 3(1)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter refers to SC ST Act for short). Criminal Appeal No.543 of 2018 is filed challenging the order passed by the Sessions Court in Crl.M.P.No.1137 of 2018, wherein prayer of the appellant for conducting DNA test of her child to establish that the accused is the biological father of the said child, was rejected by the Sessions Court. Criminal Appeal No.546 of 2018 is filed challenging the order passed in the petition submitted by the prosecution (Crl.M.P.No.196 of 2018), seeking permission for further investigation under Section 173(8) Cr.PC and to conduct potency test of the accused. As per the impugned order, the said prayer was rejected by the Sessions Court.

2. Brief facts of the case which is necessary for adjudication of the issues involved in this case are as follows: Crime No.725 of 2010 was registered by the police against the 2nd respondent herein for the offences mentioned above. The case of the prosecution is that; the 2nd respondent, by inducing the de facto complainant under the promise of marriage, had sexual intercourse with her and thereby impregnated her. Subsequently, he had withdrawn from the promise. As the consent for sexual intercourse was obtained under a false promise of marriage, it was not a valid consent and hence the said acts of the accused attract the aforesaid offences. After investigation, charge sheet was submitted by the police for the offences mentioned above and cognizance was taken by the Sessions Court as SC.No.363 of 2014.

3. During the course of trial, the prosecution submitted Crl.MP.No.196 of 2018 seeking further investigation under Section 173 (8) Cr.P.C by conducting potency test of the 2nd respondent. The said application was rejected as per order dated 23.02.2018. The de facto complainant filed Crl.M.P.No.1137 of 2018 seeking for a direction to conduct DNA test of her child, which was also dismissed as per separate order dated 22.03.2018. These orders are impugned in the above appeals.

4. Heard Sri.Karthik Bhavadasan, learned counsel for the appellants, Smt.S.Ambika Devi, learned Special Government Pleader for Prevention of Atrocities against Women and Children and Sri.Manu Ramachandran, learned counsel for the 2nd respondent.

5. The learned counsel for the appellant contends that the orders passed by the Sessions Court rejecting the applications are improper as the same are against the statutory mandate as contained under Section 53A of Cr.P.C. Failure in conducting the potency test during the course of investigation was a serious lapse on the part of the investigating agency and it has seriously affected her right to get justice as a victim of the crime. Similarly, by placing reliance upon Section 53A, he contends that, there is a statutory mandate to conduct DNA test, in a case where Section 376 of IPC is involved. He places reliance upon decisions in Abdul Latheef & Ors. v. State of Kerala [2014(3) KLJ 819], Ramlal Narang and Ors. v. State (Delhi Administration) [AIR 1979 SC 1791], Krishan Kumar Malik v. State of Haryana [(2011) 7 SCC 130], Sathishkumar Nyalchand Shah v. State of Gujrat and Ors. [(2020) 4 SCC 22] and Sindhu Gopalakrishnan v.

Sebastian and Ors.[ILR 2011 (1) Kerala 231].

6. Learned Special Government Pleader would contend that, the prosecution was compelled to submit the application for further investigation as they could not conduct the potency test during the course of investigation, due to the fact that the 2nd respondent accused was absconding at the relevant ti