IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.07.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.OP.No.18771/2006 Cr.MP.Nos.1/06 & 1/07 Shankar @ Palanisamy Petitioner/Accused Vs State by Inspector of Police All Women Police Station, Sankari Respondent/Complainant Prayer:- This Criminal Original Petition is filed to call for the records of FIR and the summon dated 10.7.2006 in Crime No.15/2005 on the file of the Inspector of Police, All Women Police Station, Sankari. For Petitioner : Mr.C.D.Johnson For Respondents : Mr.S.Senthilmurugan for PP ORDER The Petitioner, who is facing charges by the Respondent Police for the offences under Sections 417 and 506(ii) of IPC, has filed this Criminal Original Petition to quash the summons dated 10.7.2006 issued to him in Cr.No.15/2005 by the Respondent Police. 2. The Respondent Police has registered a case against the Petitioner on the complaint given by one P.Rajeswari Alias Sakthi. The allegation in the complaint is that the Petitioner gave a false promise of marrying her and had sexual intercourse with her and she had become pregnant and at the time of lodging the complaint, it appears that she had delivered a baby. 3. According to the Petitioner, he was arrested by the Respondent Police and was in judicial custody from 19.5.2005 and was granted bail by the learned Judicial Magistrate II, Sankari in CMP.No.1417/2005 on 9.6.2005. It appears that a summons was pasted on the door of his house, calling upon him to appear before the learned Magistrate on 13.2.2006 and on his appearance, the learned Magistrate had directed the Petitioner to appear on 15.2.2006 and on 16.2.2006 for taking DNA Test at Chennai on 17.2.2006. 4. The contention of the Petitioner is that he filed a petition for objection before the court on 16.2.2006, but the same was returned, stating that he was called absent and so the petition https://hcservices.ecourts.gov.in/hcservices/ was dismissed. Again on 23.2.2006 on the basis of a letter of requisition filed by the Respondent Police, learned Magistrate had issued non bailable warrant on 14.3.2006 and pursuant to the said warrant, the Petitioner had been arrested and remanded to the judicial custody on 19.5.2006. Thereafter, he had been granted bail by the learned Principal Sessions Judge, Salem. 5. It is submitted by the Petitioner that he applied for a copy of the application of the requisition letter given by the Respondent Police as well as the order passed in the petition filed by him, objecting to the DNA Test, but the learned Magistrate had returned the said copy application as not maintainable. According to him, in spite of his objection filed on 25.5.2006, the learned Magistrate had observed in the docket order as "The Petitioner has already given his consent to appear before the Forensic Department and subsequently absconded causing heavy loss to the State. Hence, petition is returned." Now it appears that the learned Judicial Magistrate had issued a summons dated 10.7.2006 directing the Petitioner to appear before the court on 19.7.2006, which has been challenged in this Criminal Original Petition. 6. Mr.C.D.Johnson, the learned senior counsel for the Petitioner contended that there was no letter of requisition from the Sub Inspector of Police to subject the Petitioner to DNA Test and in the absence of any such requisition letter from the Police, the learned Judicial Magistrate has arbitrarily referred him to DNA Test, which caused prejudice and injustice to him. 7. The learned Public Prosecutor for the Respondent drew the attention of this court to the letter of requisition made by the Sub Inspector of Police, All Women Police Station, Sankari, in which the history of the case is narrated and the requisition is made by the said Officer to the court to subject the accused, victim woman and the six months old child for DNA Test at Chennai to find out whether the child was born to the Petitioner and the victim woman. The said letter of requisition has been made by Sub Inspector of Police on 29.12.2005. Pursuant to the said requisition, the learned Magistrate had directed the Sub Inspector of Police to cause production of the accused Petitioner, victim woman and the infant 10.1.2006 before the court for preparation for DNA Test. Since the accused was not available, he could not be produced on 10.1.2006 and therefore, summons was issued by the learned Magistrate, which was served by affixing it on the doors of the house of the accused, as he was absconding directing him to appear before the court on 13.2.2006. Accordingly, all the three persons had appeared before the learned Magistrate on 13.2.2006 and the court had directed them to appear on 15.2.2006. On their appearance, the learned Judicial Magistrate had again directed the Sub Inspector of Police to produce them before the Forensic Science Laboratory for DNA Test on 17.2.2006. On the said date, it appears that the accused has consented for the DNA Test and had signed in the covering letter of the Court addressed to the Assistant https://hcservices.ecourts.gov.in/hcservices/ Director, Forensic Laboratory at Chennai. The Petitioner had been specifically directed to be present before the Sub Inspector of Police on 16.2.2006 so as to proceed to Chennai for the DNA Test. It appears that he had again absconded from 16.2.2006 and therefore, he was not taken to the DNA Test on 17.2.2006 at Chennai, though the victim girl and the child was very much present. 8. In view of the conduct of the Petitioner in acting in defiance of the order of the Sub Inspector of Police, non bailable warrant had been issued against him and subsequently he had been granted bail by the learned Principal Sessions Judge, Salem. Thereafter, the date has been fixed for DNA Test on 23.6.2006 and he has been directed to be present before the court on 19.6.2006, but he failed to appear, but has challenged the summons issued to him in that regard. 9. The materials placed on record by the learned Public Prosecutor shows that a request has been made by the Sub Inspector of Police and pursuant to the said request, the learned Magistrate has passed an order to subject the accused, victim and the child for DNA Test. 10. Section 53 of Code of Criminal Procedure contemplates as under:- "53(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of police officer not below the rank of sub inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the fats which may afford such evidence, and to use such force as is reasonably necessary for that purpose. (2) Whenever the person of a female is to be examined under this Section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner (a) "examination" shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case" https://hcservices.ecourts.gov.in/hcservices/ 11. From the above, it is clear that when a request is made by a Police Officer not below the rank of sub inspector upon reasonable grounds which such officer bona fidely entertains that an examination of the arrested person by a medical practitioner will afford evidence as to the commission of the offence, then the court can issue direction to cause production of the accused along with the victim girl and the child for examination for DNA Test. The object of Section 53 of Code of Criminal Procedure has been made to facilitate effective investigation. Special protection is afforded to females and it lays down a condition that medical examination will have to be done at the instance of a police officer, not below the rank of sub inspector. However, it does not debar the court concerned from exercising such power, if it is necessary for doing justice in a criminal case. If a party refuses to submit to blood test or other examination, the court can in the circumstances of the case use the refusal or failure of the accused to submit to blood test as a corroborative evidence against him. 12. New explanation to Section 53 has been inserted by the Code of Criminal Procedure (Amendment) Act 2005 (25 of 2005) that "examination" in this section and in Sections 53A and 54 shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and so on, including the DNA profiling which the registered medical practitioner thinks necessary in a particular case. The examination of the accused contemplated under Section 53 includes taking of blood from the accused. Therefore, taking of blood of the accused for the purpose of DNA test will not amount to compelling an accused to become a witness against himself violative of Art.20(3) of the Constitution of India. Release of an arrested person on bail cannot take away the reality of the situation and the arrested person does not cease to be an arrested person or an accused person for the purpose of Section 53 and 54, his medical examination can be ordered. 13. In case of Solaimuthu Vs. State and another [2005- Crl.LJ-31], when the examination of accused by medical practitioner at the request of police in relation to a dispute regarding paternity of child was challenged, this court has held that positive evidence of woman is that it was the Petitioner who has fathered the child and it became necessary that blood has to be necessarily analysed and therefore, the order directing the Petitioner to undergo blood test cannot be held to be improper. It is held as follows:- "9. On consideration of the above cited decision, in my opinion. Section 112 of the Evidence Act does not come to the rescue of the Petitioner herein. This Section would apply only when the father is able to establish that he has no access to have sexual intercourse with the woman and only then the man cannot https://hcservices.ecourts.gov.in/hcservices/ be said to be the father. But in the present case, the positive evidence of the woman is that it was the Petitioner, who has fathered the child and therefore, it is but necessary that the blood has to be necessarily analysed." 14. In this case, it is seen from the records that the Petitioner had given consent for subjecting himself to the DNA Test and thereafter, rescinding from it and absconded himself, which necessitated the learned Judicial Magistrate to issue non bailable warrant on the requisition made by the Sub Inspector of Police. The learned Judicial Magistrate has observed that the Petitioner having given consent, in order to escape from being subjected to the DNA Test has absconded himself and therefore, issued summons to the Petitioner to appear before the court to subject himself to the DNA Test. Since the accused was absconding, summons had been affixed on the door of the house of the Petitioner. The learned Judicial Magistrate is perfectly justified in directing the Sub Inspector of Police to produce the Petitioner for the purpose of further investigation of the case i.e for subjecting the Petitioner for DNA Test. 15. In view of the above said reasons, I do not find any illegality or infirmity in the issuance of summons to the Petitioner or affixing the same on the door of the Petitioner and there are no merits in this case, warranting interference by this court. Hence, this Criminal Original Petition is dismissed. Consequently, the connected MP is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Srcm To: 1. The Inspector of Police, All Women Police Station, Sankari. 2. The Public Prosecutor, High Court, Madras Crl.OP.No.18771/2006 NSM(CO) RVL 30.07.2009 https://hcservices.ecourts.gov.in/hcservices/