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Right To Know : Directs DNA Tests In Baby Swap Case
A Case More Humane Than Criminal: Court's Opening Observation
The
has directed DNA testing of two young children as part of a criminal investigation into an alleged baby swap at a Durgapur hospital, observing that the case is
"
"
as it concerns the
and welfare of the children. Justice Kausik Chanda, hearing a criminal revision petition, held that the pursuit of biological truth must be balanced against privacy and emotional consequences, but refused to allow the uncertainty to continue indefinitely.
The Alleged Swap: How the Case Began
The case originates from a complaint filed by Nargish Bano, who alleged that her newborn daughter was exchanged with another baby at in July 2023. According to the petitioner, she noticed on that the identification tag attached to her child bore the name "B/O Baishakhi Guin" — referring to another mother who had also delivered a girl child on the same date. Despite the nurse changing the tag, a discrepancy in blood-group entries deepened the petitioner's suspicion that the babies had been swapped.
An FIR was registered at on under . The investigating agency initially sought DNA testing of the petitioner, her husband and the child in their custody. After the Magistrate rejected the prayer, a coordinate bench of the High Court directed the test. The DNA report dated did not establish the petitioner and her husband as the biological parents of the child in their custody.
The petitioner then sought DNA profiling of the opposite parties (the other couple) and the child in their custody, arguing that comparative analysis was the only reliable means to determine which child belonged to which parents. The Magistrate rejected this prayer on on the ground that the opposite parties had not consented. This order was challenged before the High Court.
Arguments For and Against DNA Profiling
, appearing for the petitioner, argued that without comparative DNA profiling, it would be impossible to identify the victim of the alleged offence. He placed strong reliance on , which empowers a Magistrate to direct any person to give measurements for the purpose of investigation or proceedings under the CrPC. He submitted that under Section 5, and that DNA profiling is the only scientifically precise means of establishing the of the children.
Opposite parties, represented by , opposed the prayer on grounds of of the child. They argued that compelling DNA testing after more than two years would cause serious psychological consequences. They contended that the investigating agency could instead rely on hospital records, identification marks and medical documentation. Citing the 's decision in , they argued that DNA testing should not ordinarily be directed during investigation where documentary evidence is available.
The Court's Legal Framework: Sections 5 and 6 of the Identification Act
The High Court examined the scope of the in detail. Section 3 of the Act requires certain categories of persons — convicts, those ordered to furnish security, and arrested persons — to allow their measurements to be taken. Section 5 confers a wider power on the Magistrate to direct "any person" to give measurements if it is for any investigation or proceeding. Section 6 provides consequences for resistance or refusal to comply.
The court held that the Magistrate's rejection solely on the ground of non-consent was erroneous.
"Consent, by itself, cannot be regarded as an absolute condition precedent to the exercise of jurisdiction under Section 5,"
the court observed, noting that Section 6 itself contemplates consequences for refusal.
However, the court cautioned that the power under Section 5 is not to be exercised mechanically.
"The Magistrate must independently satisfy himself that obtaining such measurement is
in the facts and circumstances of the particular case,"
the court stated, adding that where the person does not fall under Section 3, the Magistrate must exercise corresponding care.
Balancing with Privacy and Child Welfare
The court acknowledged the competing interests at play. On one hand, the children had developed strong with the families who raised them over three years. On the other hand, the interest of a child in knowing his or her true is a significant consideration.
"If the children were, in fact, exchanged at birth, allowing the uncertainty to continue indefinitely may result in two children continuing to grow up with families who are not their biological families, while the truth remains capable of being scientifically established,"
the court observed.
Referring to the 's decision in , the court noted that the right to privacy must be balanced against the child's legitimate interest in a definitive answer concerning .
What the Court Ordered: Limited DNA Testing, No Compulsion
The court issued the following directions:
- The petitioner, her husband, and the child in their custody shall undergo a repeat DNA examination at the .
- The child in the custody of the opposite parties shall also undergo DNA examination for the limited purpose of determining biological relationship.
- The opposite parties (the other couple) may voluntarily undergo DNA testing at the same laboratory, but the investigating agency shall not compel them to do so, having regard to their privacy and bodily autonomy.
- The DNA examination shall be confined strictly to determining biological relationship.
- The samples shall, as far as practicable, be collected from the children's respective residences.
- The Director of the State Forensic Science Laboratory shall complete the examinations within ten days of communication of the order.
'DNA Examination Should Not Be Regarded as End of '
The court made it clear that even if the DNA results confirm an exchange, that alone would not warrant immediate
.
"The DNA examination, therefore, should not be regarded as the end of the
. It would, at best, establish a biological fact which may necessitate further consideration of the welfare, identity, and future care of the children,"
the court observed.
The court directed that the matter be listed on under the heading "To Be Mentioned," and expressly clarified that nothing in the order shall be construed as a direction for transfer or exchange of custody based solely on the DNA result.
