Parmjit Singh Dhaliwal vs State of Punjab

T.P.S. Mann, J.—The Petitioner is seeking quashing of order passed by Judicial Magistrate Ist Class, Jagraon on 13.3.2006, whereby application moved by the prosecution for directing the Petitioner for medical examination to supply his samples for DNA test, was accepted by directing him to make up his mind as to whether he wants to undergo medical examination for conducting DNA test.

As per the Petitioner, he along with Baldev Singh and Jasbir Singh was arrested in FIR No. 72 dated 28.5.1997 registered at the instance of Harbans Singh, brother of deceased Jaswant Singh. They were then sent up for trial but acquitted by the Additional Sessions Judge, Ludhiana. In January, 2002, the matter was re-investigated on the request submitted by Pritam Singh, father of deceased Jaswant Singh. It was alleged that the Petitioner was having illicit relations with the wife of deceased Jaswant Singh and when he was in England, he conspired with her to kill Jaswant Singh for which purpose he came to India and managed to get Jaswant Singh murdered through some persons. It is further alleged that in September 2005, the Petitioner travelled to India as his father had passed away, however, was arrested at the Air Port by the police. He was shown to be arrested on September 20, 2005 and produced before the Court. After the conclusion of the investigation, challan was presented in the Court on 17.12.2005.

On 22.12.2005, the Investigating Officer moved an application u/s 53 of the Code of Criminal Procedure (hereinafter referred to as `the Code'') that as there were allegations that the Petitioner was having illicit relations with the wife of the deceased, who had given birth to one son, namely, Manpreet Singh on 23.4.2993, DNA test was required to be conducted so as to ascertain the parentage of Manpreet Singh and, accordingly, a request was made that the Petitioner be asked to supply his samples for DNA test so that the same may be sent to U.K. authorities for conducting the said test. The Petitioner opposed the same by filing reply dated 4.1.2006. After hearing the arguments, Judicial Magistrate Ist Class, Jagraon passed the impugned order, as mentioned above.

Learned Counsel for the Petitioner has submitted that the impugned order passed by learned Judicial Magistrate was patently wrong and illegal as the challan had already been presented in the Court and the copies supplied to the accused and therefore, the case was required to be committed to the Court of Sessions, the offence being triable exclusively by the said Court. The Judicial Magistrate had no role to play other than committing the case. He could not make any enquiry in the case as it was exclusively triable by the Court of Sessions. In fact, the proceedings before the Judicial Magistrate were merely formal in nature. Reliance was placed upon

Learned Counsel for the State of Punjab as well as the complainant opposed the prayer of the Petitioner that in view of the provisions of Section 53 of the Code, accused could be subjected to medical examination at the instance of Investigating Officer and the Magistrate had full powers to entertain such a request and direct the necessary medical examination of the accused.

I have heard learned Counsel for the parties and perused the impugned order.

Though, it is a fact that supplementary challan had been presented by the police against the Petitioner, yet the police made an application on 22.12.2005 before the learned Judicial Magistrate for issuance of a direction to the Petitioner to supply his samples for DNA test. Further investigation could not be ruled out merely because the supplementary challan had been presented in the Court and its cognizance taken. Section 2(h) of the Code defines investigation as under:

2(h) `Investigation'' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

This definition includes all the proceedings under the Code for the collection of evidence by a Police Officer, who after completion of investigation is expected to submit a report u/s 173 of the Code. Sub-section (8) of Section 173 was introduced in the Code of Criminal Procedure in 1974 and the true import of this Sub-section was considered by the Supreme Court in Ram Lal Narang Vs. State (Delhi Administration), . The Supreme Court in the said case, after referring to decisions of various High Courts and the report of the Law Commission, observed that further investigation is not all together ruled out merely because the Court has taken cognizance of the case. Defective investigation coming to the light during the course of trial may be cured by further investigation if circumstances permit it. In para 22 of the said decision the Supreme Court held as follows:

As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication barred the right of the police to further investigation after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted u/s 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation.

This being the position prior to amendment of the Code and before Sub-section (8) of Section 173 of the Code was introduced, in my view, the new provision, i.e. Section 173(8) of the Code has clarified this position. This Sub-section confers such an express and specific power upon the Investigating Officer.

Section 53 of the Code makes a provision for the examination of the person of the accused by a registered medical practitioner at the request of a police officer not below the rank of Sub-Inspector in order to ascertain the fact which may afford evidence and also to use such force as is reasonably necessary for that purpose. This is a part and parcel of the process of investigation.

In this view of the matter, through Section 53 of the Code refers only to examination of the accused by medical practitioner at the request of a police officer, there is no reason why the Court should not have a wider power for the purpose of doing justice in criminal cases by issuing a direction to the police officer to collect blood sample from the accused and conduct DNA test for the purpose of further investigation u/s 173(8) of the Code.

In Raj Kishore Prasad (supra), the controversy did not relate to the provisions of Section 53 of the Code but centered around summoning of additional accused u/s 319 of the Code.

In The State (Delhi Administration) Vs. Pali Ram, the Hon''ble Supreme Court upheld the power of the Court u/s 53 of the Code to direct the accused to give his specimen writing. It observed as under:

In the Revision Petition filed by the accused before the High Court a grievance is sought to be made out that the Magistrate''s order will work prejudice to the defence and enable the prosecution to fill gaps and loopholes in its case. This contention was devoid of force. Once a Magistrate is seisin of a case, duly forms an opinion that the assistance of an expert is essential to enable the Court to arrive at a just determination of the issue of the identity of disputed writing, the fact that this may result in the "filling of loopholes" in the prosecution case is purely a subsidiary factor which must give way to the paramount consideration of doing justice. Moreover, it could not be predicated at this stage whether the opinion of the Government Expert of questioned documents would go in favour of the prosecution or the defence. The argument raised before the High Court was thus purely speculative.

Relying upon the aforementioned decision of Hon''ble Supreme Court, Karnataka High Court in justified the power of the Magistrate u/s 53 of the Code in directing or ordering the accused for medical examination. It was held as under:

Now coming to the fourth and last contention of the Petitioner, though Section 53 of the Code discloses that the medical examination will have to be conducted at the instance of a police officer not below the rank of Sub- Inspector, that does not prohibit other superior officers of the Court concerned from exercising said power if it is necessary for rendering justice in criminal case. If medical examination of an accused can be done at the instance of the police officer not below the rank of Sub-Inspector, then such a power should be deemed to be impliedly possessed by a Magistrate or Court trying the offence. There is no warrant for curtailing the scope of the Section 53 of Code of Criminal Procedure The primary duty of the Court is to ascertain the truth. Thus, it is not correct to say that Court or Magistrate cannot direct or order the accused for medical examination as contemplated under Sections 53 and 54 of the Code.

In view of the above, no relief can be afforded to the present Petitioner. The petition is without any merit and is, accordingly, dismissed.