Daneshwar Patel vs Deputy Superintendent Of Police

This Petition has been filed under Section 482 Cr.P.C against the order dated 11.10.2022 passed by the Additional Sessions Judge (FTC) Special Judge, POCSO Act, whereby the Superintendent of Jail, Durg, Chief Medical Officer, Durg and Deputy Superintendent of Police (Ajak) were directed to take blood sample of the Petitioner for conducting DNA test.

Brief facts of the case are that charge sheet has been filed against the Petitioner for the offence under Sections 376(2)(n) and 506 IPC, under Sections 5(i) and 6 of the POCSO Act as also under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act on 7.10.2022 before the trial Court for conducting DNA test and by the order impugned, a direction was given to take the blood sample of the Petitioner.

Shri Agrawal, learned Counsel for the Petitioner submits that taking the blood sample of the Petitioner without his consent is violation of privacy of human life and taking the blood sample forcibly in order to comply with the order amounts to abuse of process of law. He placed reliance on the judgment rendered in the matters of Selvi and Others vs. State of Karnataka reported in (2010) 7 SCC 263 and Ritesh Sinha vs State of Uttar Pradesh an Another reported in (2013) 2 SCC 357.

On the other hand, Shri Singh learned State Counsel supports the order impugned and submits that the Petitioner is bound to cooperate with the investigation for the purpose of collecting blood sample for conducting DNA test and it is within the powers of the investigator under Section 53-A Cr.P.C to resort to a reasonable degree of physical force for conducting the same as in the matter of Krishna Kumar Malik vs. State of Haryana reported in (2011) 7 SCC 130, it has been categorically held that after incorporation of Section 53-A in Cr.P.C w.e.f 23.06.2006, it has become necessary for prosecution to go in for DNA test in such cases, facilitating prosecution to prove its case against the accused.

Heard learned Counsel for the parties and perused the documents annexed herewith carefully.

In the matter of Selvi and Others vs. State of Karnataka (supra), in para-166, it was observed as under:-

“166. The respondents have urged that the impugned techniques should be read into the relevant provisions i.e. Sections 53 and 54 CrPC. As described earlier, a medical examination of an arrested person can be directed during the course of an investigation either at the instance of the investigating officer or the arrested person. It has also been clarified that it is within the powers of a court to direct such a medical examination on its own. Such an examination can also be directed in respect of a person who has been released from custody on bail as well as a person who has been granted anticipatory bail. Furthermore, Section 53 contemplates the use of “force as is reasonably necessary” for conducting a medical examination. This means that once a court has directed the medical examination of a particular person, it is within the powers of the investigators and the examiners to resort to a reasonable degree of physical force for conducting the same.”

Now after insertion of Section 53-A in Cr.P.C, DNA profiling test must be conducted immediately after the arrest and the result of the test would constitute clinching evidence for an offence in a prosecution for rape.

Ritesh Sinha vs State of Uttar Pradesh an Another (supra) relates to voice sample, which is not included in the definition of Section 53-A Cr.P.C, therefore, the facts of the said case are distinguishable from that of the present case.

Accordingly, the Petition has no merits and therefore, the same is hereby dismissed.