Crl. Rev. No.1262 of 2007

1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH.

Crl. Rev. No.1262 of 2007

Date of Decision: 19.11.2009

Salauddin

.....Petitioner

Vs.

State of Haryana

....Respondent

....

CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA

****

Present :

Mr. R.S. Sihota, Sr. Advocate with Mr. B.R. Rana, Advocate

for the petitioner.

Mr. Ajay Chaudhary, DAG, Haryana for respondent no.1.

....

RAJIVE BHALLA, J

This order shall dispose of Criminal Revision Nos.1262 of

2007 and 1830 of 2007.

The complainant and the State of Haryana have filed separate

revisions challenging the order dated 3.5.2007, passed by the Additional

Sessions Judge, Fast Track Court, Gurgaon, dismissing an application for

taking the blood sample of the accused. Surat alias Sujja, is an accused in

FIR No.318 dated 12.9.2004, registered under Sections 302/102-

B/216/201/148/149 IPC and Sections 25/54/59 of the Arms Act. After his

arrest the police filed an application, before the J.M.I.C. Ferozepur Jhirka

for being allowed to take his blood sample. On 7.12.2004, the Surat @ Sujja

made a statement before the Judicial Magistrate Ist Class, Ferozepur Jhirka

that he has no objection if his blood sample is taken. The Magistrate,

Crl. Rev. No.1262 of 2007

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therefore, directed the civil Surgeon, Gurgaon to take the blood sample of

the accused. Surat @ Sujja, filed Criminal Revision No.34 of 2004/2006,

challenging this order. Vide order dated 3.5.2007, the revision was

dismissed. It appears that when the doctor visited the jail to take a blood

sample but Surat @ Sujja refused to cooperate, thus compelling the doctor

to return.

The petitioner/complainant filed an application praying that the

prosecution should be directed to take the blood sample of the accused by

using force as prescribed by Section 53 of the Code of Criminal Procedure

(hereinafter referred to as `the Code'). The trial court dismissed the

application by holding that a second application, for taking a blood sample

is not maintainable and even otherwise an accused cannot be forced to

furnish his blood sample.

Counsel for the petitioner submits, that Section 53 of the Code,

allows the use of “reasonable force” for “examination” of the person of an

accused. The accused agreed and, thereafter, refused to undergo a blood

test. The trial court should have, therefore, directed the Civil Surgeon,

Gurgaon to use “reasonable force”, for the purpose of drawing a blood

sample for the purpose of D.N.A. profiling. It is further submitted that the

courts below misconstrued the prayer in the application as in essence, the

prayer is to carry out the order dated 7.12.2004 in accordance with the

provisions of Section 53 of the Code.

Counsel for the accused, on the other hand, submits that though

he does not dispute the facts but in view of Article 20(3) and Article 21 of

the Constitution, the accused cannot be forced to give a blood sample. It is

argued that though Section 53 of the Code includes the taking of a blood

Crl. Rev. No.1262 of 2007

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sample within the meaning of the word “examination”, the prosecution or a

medical examiner cannot be allowed to use force. It is further submitted that

as the respondent had already refused to furnish his blood sample, the

second application for the same purpose is not maintainable.

I have heard learned counsel for the parties and perused the

orders passed by the courts below. It is not disputed that respondent no.2

voluntarily agreed to provide a blood sample but later refused to cooperate.

The question that falls for adjudication is whether the prosecution can be

allowed to use force to take a blood sample of an accused.

The argument against the use of force for an invasive

“examination” of the person of an accused flows from Article 20(3) and

Article 21 of the Constitution. Article 20(3) mandates that no person

accused of an offence shall be compelled to be a witness against himself.

Article 21