IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 16.02.2010 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl. O.P.No.36969 of 2007 and M.P.Nos. 1 of 2007 and 2 of 2008 S.Vidhya .. Petitioner Versus State by 1.Deputy Superintendent of Police, Mamallapuram, Kancheepuram District. 2.The Sub Inspector of Police, E-9, Thalambur Police Station, Kancheepuram District. (Crime No.11 of 2002) 3. Sivagnanam ... Respondents (Impleaded as 3rd respondent as per order of this Court dated 06.03.2008 in M.P.No.1 of 2008) Prayer.: This Criminal Original Petition is filed under Article 482 Cr.P.C., to order re-investigation by an officer not less than the rank of Deputy Superintendent of Police for the crime registered in Crime No.11 of 2002 which is pending trial in S.C.No.134 of 2005 on the file of Principal Sessions Judge, Chengalpattu. For Petitioner : Mr.V.Padmanabhan For Respondents 1 and 2 : Mr.A.Saravanan Government Advocate (Crl.Side) For Respondent 3 : Mr.V.Krishnamurthy https://hcservices.ecourts.gov.in/hcservices/ O R D E R This petition seeks re-investigation in Crime No.11 of 2002, on the file of E-9, Thalambur Police Station, Kancheepuram District, presently pending trial in S.C.No.134 of 2005 on the file of Principal Sessions Judge, Chengalpattu. 2.The petitioner is the defacto complainant in the case. She preferred a complaint with the jurisdictional police informing that while she was working as a Machine Operator in a Company at Pudhupakkam, the 3rd respondent, enticed her by saying that he had property of value of Rs.12 lakhs and that he would marry and take good care of her. The complainant was taken in by the fond words of the 3rd respondent and one day while she was alone at her residence, the 3rd respondent sought to have sexual relationship, which she tried to avoid informing that the same should await their marriage. However, the 3rd respondent raped her. Thereafter on several occasions, when the complainant's mother was not at home, the sexual relationship continued. The complainant became pregnant and informing such fact to the 3rd respondent, asked him to marry her, which request was turned down by him. 3.Stating that she into her fourth month of pregnancy and had been cheated by the 3rd respondent, the complainant preferred a complaint on 06.01.2002, which came to be registered for offences under Sections 417 and 376 IPC. The complaint also informs that the petitioner herein belongs to Adi-dravida community, while the 3rd respondent was a member of Yadhava community. Upon completion of investigation, charge sheet has been filed for offences under Sections 417, 376 and Section 3(1) (XII) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. 4.The trial has progressed in the case, eight prosecution witnesses have been examined and the Investigating Officer was to be examined. At such stage the Public Prosecutor moved an application under Section 173(8) Cr.P.C., seeking re- investigation on the ground that as the case involved offence under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, it was a mandatory requirement that the case be investigated by an officer not below the rank of Deputy Superintendent of Police and in the instant case, the investigation had been conducted by Sub-Inspector of Police. As the case had not been properly investigated by the duly authorised officer and the investigating officer has failed to send the accused, victim and the child for a DNA test, prejudice https://hcservices.ecourts.gov.in/hcservices/ is caused to the victim and hence, further investigation was necessary. 5.Upholding the opposition thereto on behalf of the defence that no fresh facts or no special ground which require further investigation was made out and on the contrary, the prosecution was trying to wipe out the investigation done by the Sub- Inspector of Police, who was not authorised to conduct investigation and replace it with entirely new evidence on the basis of the investigation, which was to be conducted by the Deputy Superintendent of police and accepting the submission made on the strength of the decision of the Hon'ble Apex Court in The Director, Central Bureau of Investigation and Another Vs. State of Kerala and Others, 1998 SCC (Cri) 1292, that section 173(8) contemplates further investigation, but not fresh investigation or re-investigation and that further investigation would be the continuation of the earlier investigation and not fresh investigation or re-investigation to be started ab initio wiping out the earlier investigation altogether, the lower Court found that no reason was put forth for further investigation and also that the case was at a part-heard stage and dismissed the petition. 6.The State has not filed any revision against such order. It is in these circumstances that the defacto complainant has moved the present petition before this Court. 7. It is contended by the learned counsel for the petitioner that as the investigation in respect of offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, has not been conducted by an officer authorised to investigate, as per Rule (7) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules which required that offences under the Act be investigated by an officer not below the rank of Deputy Superintendent of Police, the prosecution necessarily would fail in respect of such offence. Again, as the Sub-Inspector of Police, who conducted the investigation has not subjected the accused, petitioner/complainant and the child to the DNA test, it is well likely that the case would end in an acquittal of the accused. Where the acquittal of the accused is likely to be entailed owing to the defects pointed out both in law and by way of lacuna in the investigation, this Court would exercise its inherent powers towards ensuring that real and substantial justice was done. It was necessary that justice be meted out not only to the accused but also to the Victim of the crime. https://hcservices.ecourts.gov.in/hcservices/ 8.Learned counsel drew the attention of this Court to a decision in H.Thenmozhi Vs. Inspector of Police, PRC Unit, Chennai and another, 2002 (2) MLJ (Cri) 463, wherein on the reasoning that since the investigation had been conducted by the Inspector of Police in respect of an offence under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, the entire proceedings were vitiated, this Court had confirmed the order of acquittal passed by the lower Court. The learned counsel impressed upon this Court that the present case would meet a similar fate. 9.Learned counsel for the respondent on the other hand submitted that the alleged occurrence was of the year 2002, the case was taken up for trial in the year 2006, as many as eight prosecution witnesses had been examined and the only witness, who remained to be examined was the Investigation Officer. It was at such stage the prosecution had moved the petition under Section 173(8) for re-investigation and for reasons stated, the lower Court rightly had rejected the same. The State having not moved against the said order, it would not be open to the petitioner/defacto complainant to move this court as the case was the outcome of a police investigation and charge sheet. Learned counsel further submitted that it would be highly unjust to make any order as prayed for after a lapse of eight years. 10.The Constitutional Bench of the Apex Court in the case of P.Ramachandra Rao Vs. State of Karnataka, 2002 SCC (Cri) 830 had reaffirmed its earlier decision in A.R.Antulay case 1992(1) SCC 225, that the right to speedy trial, also forms part of the fundamental rights ensured under Article 21 of the Constitution of India. It is the submission of the learned counsel that the accused who had already faced accusation from 2002 and the rigour of trial from 2006 ought not to be put to further hardship, which necessarily would flow to him if there was to be a fresh investigation and consequential commencement of proceedings anew before the trial Court. 11.Considering the rival submissions, this Court is of the opinion that though it cannot be said as a blanket rule that the complainant cannot move this Court by way of petition under Section 482 Cr.P.C., seeking a fresh investigation in the case, the instant case would not be one which warrants the grant of such relief at the hands of this Court. In arriving at such conclusion, this Court has considered both the nature of relationship between the petitioner and the accused, the nature of offences alleged and is of the opinion that though the facts do suggest that there could be no conviction for offence under Scheduled Castes and the Scheduled Tribes (Prevention of https://hcservices.ecourts.gov.in/hcservices/ Atrocities) Act, in the proceedings pending before the lower Court, it would not be proper to order fresh investigation and put the accused to the ordeal thereof and of consequential trial. Any such order of this Court, would vitiate the fundamental right of the accused to a speedy trial, which also stands guaranteed under Article 21 of the Constitution of India. 12.Accordingly, the Criminal Original Petition shall stand dismissed. Consequently, the connected miscellaneous petition is closed. 13.However, in the circumstances of the case, it would be open for the trial Court to consider whether the conduct of a DNA test would serve the interest of justice. DNA testing has been found to be scientifically accurate. Of course, it was submitted by the learned counsel for the 3rd respondent that requiring the accused to submit himself to a DNA test would amount to testimonial compulsion. The constitutional Bench of the Honourable Apex Court in State of Bombay v. Kathi Kalu Oghad AIR 1961 Supreme Court Cases 1808 has held as follows: "(16)In view of these considerations, we have come to the following conclusions:- (1)An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement. (2)The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'. (3)'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving https://hcservices.ecourts.gov.in/hcservices/ materials which may be relevant at a trial to determine the guilt or innocence of the accused. (4)Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showings parts of the body by way of identification are not included in the expression 'to be a witness'. (5)'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise. (6)'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing. (7)To bring the statement in question within the prohibition of Art.20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made." Thus, the position is quite clear that requiring an accused to submit himself to a DNA test would not amount to testimonial compulsion. The above observations are not meant to impose any particular conduct on the trial Court and the lower Court will deal with the case on merits. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gm/ars https://hcservices.ecourts.gov.in/hcservices/ To 1.The Deputy Superintendent of Police, Mamallapuram,Kancheepuram District. 2.The Sub Inspector of Police, E-9, Thalambur Police Station, Kancheepuram District. 3.The Public Prosecutor, High Court, Madras. 4.The Principal Sessions Judge, Chengalpattu. +1cc to M/s. K.Elangovan, Advocate Sr 2981 +1cc to Mr.V.Krishnamurthy, Advocate Sr 10457 TRM(CO) km/8.3. Crl. O.P.No.36969 of 2007 and M.P.Nos. 1 of 2007 and 2 of 2008 https://hcservices.ecourts.gov.in/hcservices/