DATE OF JUDGEMENT:
10th December 2021
JUDGES:
Justice H.P Sandesh
PARTIES:
Petitioner (s): Malappa @ Malingaraya
Respondent (s): The State of Karnataka
SUBJECT
The High Court of Karnataka, in the present case, dismissed a writ petition filed under Article 226 of the Constitution to issue a writ of certiorari to quash the DNA profile report of the petitioner. The Court possesses the power to order DNA tests when the circumstances of the case demand the same, held the Court.
OVERVIEW
1.In the present case, a writ petition was filed under Article 226 and Article 227 of the Constitution read with Section 482 Cr.P.C. to issue a writ of certiorari to quash the DNA profile report of the petitioner. Dismissing the petition, the court held that ordering DNA tests in deserving cases can’t be prohibited and the results of such tests aren’t self-incriminatory or violative of Article 20(3) of the constitution of India.
2.Relevant facts of the case are as follows:
a)The complainant/victim on 4th October 2016 lodged an FIR that the petitioner on 5th March 2016 collected the victim from her house for coolie work at the petitioner's land. During the work, the petitioner asked the victim to marry her and called her to have sexual intercourse. After the victim refused the proposal, the petitioner forcibly raped her and then threatened her to not reveal anything to her family. The petitioner also threatened to kill her. The petitioner repeated the same 3-4 times and threatened the victim for her life as well. Consequently, the victim got pregnant.
b)After inquiry, her parents approached the petitioner with a proposal of marriage between him and the victim. However, the petitioner refused the proposal and also denied the fact of forcible intercourse due to a lack of evidence. Meanwhile, when the victim became 7 months pregnant, she complained against the petitioner. A charge sheet was filed against the petitioner for offenses punishable under Section 504, 506, 417, and 376 of the Indian Penal Code, 1908.
c)On 27th October 2016, the prosecution filed an application for a DNA test of the accused. The petitioner refused to undergo the DNA test. Objecting to the application, the petitioner stated that the DNA test is not tenable in the eyes of law and he is innocent. The petitioner also contended that the victim has already married one Sidappa and drawing his blood sample for the DNA test is not justified.
d)Meanwhile, the Investigating Officer (IO) filed an application on 7th December 2016 that the infant of the victim is reported to be dead. The IO requested extraction of the relevant portion of the infant’s body for DNA testing to successfully carry out the investigation. The application was allowed.
e)On 7th December, another application was filed in the court for DNA testing of the petitioner. The Court ordered the DNA test of the accused to successfully carry out the investigation. The blood sample was then drawn in the presence of CMO Sindhanur, and handed over to the IO. The report opined that the petitioner is the biological father of the infant who died shortly after birth.
3.The petition at hand was filed on 31 May 2021 seeking a writ of certiorari against the order of the lower court that subjected the petitioner to take a DNA test and also to quash the subsequent report of the test. The petitioner contended that the DNA test violated his fundamental right against self-incrimination under Article 20(3) of the constitution. The petitioner also contended that he never consented to undergo DNA profiling and for that purpose give his blood sample.
4.The petitioner stated that he was not explained the consequences of drawing his blood sample. The DNA report holds serious consequences and that’s why it must be free from undue influence. Hence, the entire process was unfair and against the principles of the free trial.
5.The counsel for the petitioner argued that section 164 of Cr. P.C was not complied with and the Court can’t subject the petitioner to the DNA test. The counsel further submitted that there is no specific provision in Cr.P.C. that authorizes DNA testing.
6.The counsel for the petitioner relied on the judgment of the Supreme Court in the case of Selvi and others V. State of Karnataka. The judgment calls for a liberal interpretation of section 53 of Cr. P.C to include DNA testing in ‘modern and scientific techniques. The counsel contended that the use of such techniques without consent violates article 20(3) of the Constitution.
7.The counsel for the petitioner also relied on the judgment in the case of Ashok Kumar V. Raj Gupta and Others where the court observed that forcefully subjecting someone to undertake a DNA test violates their liberty and right to privacy.
8.Per Contra, the counsel for the respondent submitted that the blood sample of the petitioner was only obtained after his due consent. The learned Magistrate also enquired the accused and sufficiently explained to him the scope of drawing the blood sample in front of a camera. The counsel also contended that the report of the test was made available in 2017 and the petitioner has approached the court after a lapse of 4 years. Hence, there is no merit to the writ petition.
ISSUES
1.Whether drawing of the blood sample amounts to self-incrimination?
2.Whether the petitioner consented to give his blood sample?
LEGAL PROVISIONS
Indian Penal Code, 1908
Section 376- Punishment for Rape.
Section 417- Punishment for cheating.
Section 504- Intentional insult with intent to provoke breach of the peace.
Section 506- Punishment for criminal intimidation
Code of Criminal procedure, 1973
Section 482- Saving of inherent powers of High Court.
Section 164- statements recorded by Magistrate.
Section 53- Examination of accused by medical practitioner at the request of police officer.
Constitution-
Article 226- Power of High Courts to issue certain writs.
Article 227- Power of superintendence over all courts by the High Court.
Article 20(3)- Right against Self-incrimination in India
JUDGMENT
1.The Court first referred to the judgment cited by the petitioners in the case of Ashok Kumar V. Raj Gupta and Others. The Court held that “on the entire reading of the judgment” it is clear that it is within the power of the courts to order a medical examination. Section 53 of Cr. P.C even authorizes “use of force as is reasonably necessary” for conducting a medical examination. The judgment also clarifies that the definition of “medical examination” in the said section must be liberally construed to include “DNA profiling and such other tests.”
2.The Supreme Court dismissed the argument of the petitioner concerning judgment in the case of Ashok Kumar V. Raj Gupta and Others due to differences in facts and circumstances.
3.The Court then referred to multiple judgments that better suit the case in hand:
a)The Court firstly relied on the judgment in the case of Kathi Kalu Oghad. The Apex Court in the present case held that “self-incriminatory information given by the accused without compulsion does not amount to a violation of Article 20(3).” It was further stated that taking impressions of parts of the body of an accused person very often becomes necessary to help the investigation.
b)The Court then referred to the judgment in the case of H.M Prakash @Dali V. State of Karnataka wherein the court held that mere examination of a person and “taking of blood sample itself is not an incriminating circumstance” and therefore it cannot be said to violate Article 20(3). It was further held that there is nothing “brutal or offensive or shocking” in taking a blood sample under the “protective eyes of law.” The right to liberty when exercised with the procedure of law does not violate Article 21.
c)In the case of Banarsi Das V. Teeku Datta and Another, the Supreme Court noted that DNA tests shall not be directed as a matter of routine but only in deserving cases. There is no prohibition on directing DNA tests after considering the relevant circumstances of each case.
d)The Court also relied on the landmark judgment in the case of K.S Puttaswamy and Another V. Union of India and Others. The Court stated that to determine if the person can be compelled to provide for a sample for DNA in such matters can be answered by referring to a test of proportionality laid down in the case. The Court should examine the proportionality of the legitimate aims being pursued, that is whether the same is not arbitrary, discriminatory, or have an adverse impact on the person.
4.The court then stated that the provisions of Section 53 of Cr. P.C after the amendment of 2005 include examination of blood, semen, hair sweat, fingernails, etc. by use of modern and scientific techniques including DNA profiling.
5.In the light of judgments referred by the Court, it held that the contention of the petitioner that drawing of blood violates his fundamental right against self-incrimination cannot be accepted. Moreover, the court has the power to direct a medical examination that could include DNA profiling. Consequently, the court dismissed the writ petition.
CONCLUSION
The judgment in the present case could be dubbed as one of the most important judgments concerning DNA profiling of the accused to facilitate the investigation. The Court also clarified the stance of law that in modern times, the Court could resort to any means necessary within the bounds of the law to derive justice
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