IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 Crl.Rev.Pet.No. 1806 of 2004() ------------------------------------------- C.M.P.1423/2004 IN CC.NO.336/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... REVN. PETITIONER/PETITIONER/DEFACTO COMPLAINANT -------------------------------------------------------------------------------------- OMANA ALIAS THRESIAMMA, MUNDAMATTATHIL HOUSE, MANATHANA P.O., PERAVOOR-VIA, KANNUR DIST. BY ADV. SRI.K.V.SOHAN, SMT.SREEJA SOHAN.K. RESPONDENTS/1ST ACCUSED/1ST RESPONDENT & STATE --------------------------------------------------------------------------------------- 1. EDATHAZHA THOMAS, S/O.VARKEY, KANICHAR AMSOM, ANANGODE, MANATHANA P.O., VIA-PERAVOOR, KANNUR DIST. 2. STATE, (S.I. OF POLICE, KELAKOM-CR.NO. 43/99), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR MR.ALEX M.THOMBRA. R1 BY ADV. SRI.M.RAMESH CHANDER. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs N.K.BALAKRISHNAN, J. -------------------------------- Crl.R.P. No.1806 of 2004 --------------------------------- Dated this the 1st day of September 2011 O R D E R The revision petitioner is the de facto complainant in C.C.No.336/2000 which is now pending before J.F.C.M., Kuthuparamba. The allegation made by the de facto complainant is to the effect that first accused married her suppressing the fact that he had undergone vasectomy operation before marriage and that he had also undergone a reversal operation which was not successful. So according to the de facto complainant she was actually cheated by the first accused/her husband. In order to collect evidence regarding the fact that the accused had undergone vasectomy operation, she filed petition before the Magistrate to cause the first accused to be examined by a medical practitioner or medical board to ascertain that he had undergone vasectomy operation and the reversal Crl.R.P. No.1806 of 2004 -: 2 :- operation as alleged by her. That petition was dismissed by the learned Magistrate holding that it would amount to testimonial compulsion and as such it is violation of Article 20(3) of the Constitution of India. 2. The learned counsel for the petitioner would submit that the finding so entered by the learned Magistrate is unsustainable. Here, there is no question of testimonial compulsion, because the accused was not asked to state anything against himself so as to attract the prohibition contained in Article 20(3) as mentioned above. The learned counsel would submit that Sec.53 of Cr.P.C. enables the Investigating Officer to get the accused examined by a medical practitioner with regard to the nature of the allegations as to the commission of the offence, complained of. 3. The learned counsel for the accused/first respondent would submit that though the doctor who was stated to have conducted vasectomy operation upon the Crl.R.P. No.1806 of 2004 -: 3 :- accused was not available earlier as he was employed abroad, he came down to the native place thereafter and so there was no difficulty for the complainant to get that witness summoned and examined. Of course, the question of examining that witness by the court would arise only during trial but the complainant wanted to get that evidence collected even earlier. Even if that doctor is not available, another doctor who would be conversant with the handwriting and signature of the other doctor can be examined to prove the records if any, prepared by the doctor who conducted the operation, to prove that the vasectomy operation was conducted upon the accused. Be that as it may, the trial has to proceed. The observation made by the learned Magistrate that the request for examination of the accused by a medical practitioner/medical board is violative of Article 20(3) of the Constitution cannot be sustained as there is no testimonial compulsion in it. It is hence set aside. Crl.R.P. No.1806 of 2004 -: 4 :- 4. The learned counsel for the accused would submit that the prosecution evidence was over and that the case is actually posted for examination of the accused under Sec.313 Cr.P.C. Since that is the position as of now, the de facto complainant can file a petition under Sec.311 Cr.P.C. if required, to summon the doctor, who was stated to have conducted vasectomy operation on the accused as mentioned above. With these observations, the Crl.R.P. is disposed of. N.K.BALAKRISHNAN, JUDGE. Jvt