IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PRANAY VERMA th ON THE 5 OF DECEMBER, 2024 MISC. CRIMINAL CASE No. 51409 of 2024 HIMMAT @ HIMANSHU Versus THE STATE OF MADHYA PRADESH AND OTHERS Appearance:

Shri Romil Malpani - Advocate for the petitioner.

Shri Kushal Goyal - Govt. Advocate for respondent/State.

ORDER

1. This petition under section 428 of the BNSS Act has been preferred by the petitioner / accused challenging the order dated 21/11/2024 passed by the trial Court whereby his blood sample has been directed to be sent for DNA examination with the articles seized in the proceedings. The petitioner is facing prosecution for an offence registered vide Crime No.386/2022 at police station Chatripura, District Indore for offences punishable under Section 376(3) of the IPC and Section 3/4, 5-A/6 of the Prevention of Children from Sexual Offences Act (POCSO Act).

2. The allegation against the petitioner is that he committed rape upon the prosecutrix. After completion of the investigation charge sheet was filed by the police before the Court concerned after which the prosecution adduced its evidence and closed the same. Thereafter the accused statement was also recorded. During proceedings of the case FSL report was obtained and filed Signature Not Verified Signed by: SHAILESH by the prosecution from FSL, Gwalior. Thereafter an application was preferred by it for examination of the articles of the prosecutrix seized in the proceedings with the blood sample of the petitioner and for obtaining a DNA report. On the said application the trial Court by order dated 8/11/2023 observing that by order dated 22/7/2023 it has already observed that in the matter DNA examination is necessary, directed the police station Chatripura / prosecution to submit its report as to whether DNA proceeding in the matter is possible. The report was submitted by the police station stating that DNA test in the matter is possible. On receipt of the said report by the impugned order, the trial Court has directed for conducting the DNA examination. 3. The said order has been assailed by the petitioner the ground that there has been inordinate delay in the matter of seeking the DNA report. The proceedings have been taken after closure of evidence of both the parties. The samples have been kept for a considerable period of time and there is every possibility of the same having been tampered with. Even in the report from the FSL, Gwalior it was stated that no swab slides were found. The procedure being adopted is contrary to Section 53-A of the Cr.P.C. Since the samples have obviously been tampered with there is no justification for calling the DNA report. The impugned order hence deserves to be set aside. Reliance has been placed on decision of Calcutta High Court in Sanjay Biswas V/s. State & Another, Criminal Revision No.28 of 2023 decided by order dated 9/2/2024.

4. Learned counsel for respondent / State has opposed the petition and has submitted that the order passed by the trial Court is perfectly just and Signature Not Verified Signed by: SHAILESH legal in the facts and circumstances of the case and does not warrant any interference.

5. While it is true that the process of getting the DNA report has been initiated by the prosecution after closure of the evidence but merely for that reason the same cannot be denied. For the purpose of doing complete justice in the matter obtaining the DNA report is perfectly justified. It is well settled that each and every possible evidence ought to be brought on record. If the DNA report has been called for it does not appear as to how the same would be prejudicial to the petitioner. Section 53-A of the Cr.P.C only provides that the procedure of sampling has to be done as early as possible. It nowhere indicates that even after sampling, if there is some delay in sending the same for chemical examination, the same cannot be done. There is no provision under the law which prohibits obtaining the DNA r