HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.4422 of 2011 ORDER:- The petitioner herein namely Bhupathi Ramesh is the accused in the criminal case C.C.No.169 of 2006 on the file of the II Additional Chief Metropolitan Magistrate-cum-Mahila Magistrate, Vijayawada (trial court). He is facing trial in the said case for the offences punishable under Sections 417 and 420 IPC. 2. The substance of the accusation against the petitioner is that himself and the de facto complainant/victim girl by name Gundupogu Mary are neighbours and that on a promise of marriage to her he started cohabitation with her and ultimately that girl became pregnant. It is alleged that the victim girl submitted to the petitioner for cohabitation only because of the promise of marriage made by the petitioner and that ultimately the petitioner refused to marry her when the petitioner and her mother failed to meet his demand for a dowry of cash of Rs.50,000/- and also a half share in the house belonging to the family of the victim. 3. It is seen that when the case was pending trial the Sub- Inspector of Police/investigating officer filed a memo under Section 173(8) of the Code of Criminal Procedure, 1973, before the trial court seeking its permission for carrying out further investigation on three aspects. The first is that he wanted to further investigate into the matter to find out whether the petitioner has also committed the offence punishable under Section 376 IPC i.e. Rape in addition to the above offences for which he was already charge sheeted. The third aspect on which the investigating officer thought to carry out further investigation is to find out whether the mother of the petitioner also abetted and instigated the petitioner to desert her and further abetted him in committing the offence of rape and also the offences for which he has already been charge sheeted. The second aspect in respect of which further investigation was sought for is to subject the petitioner/accused to DNA test to find out whether or not he is the biological father of the child born to the victim in order to support the version of the victim. Regarding this second aspect it is pleaded by the investigating officer that at the time when the charge sheet was filed the victim was pregnant and the child was subsequently born and therefore permission should be given to subject the petitioner to DNA test along with the child in order to determine this above second aspect. The trial court numbered the above memo filed by the investigating officer as Crl.M.P.No.993 of 2011 and the petitioner also filed his counter to it opposing the same. 4. The trial court by its order dated 22.03.2011 rejected the request of the investigating officer on the first aspect on the ground that the victim was a major and she willingly participated in cohabitation with the petitioner though on a promise of marriage made by him and in that view of the matter the ingredients of the offence of Rape under Section 376 IPC are not attracted and it rejected the further investigation for the offence under Section 376 IPC on that ground. It then rejected the third aspect i.e. the request of the investigating officer to investigate whether the mother of the petitioner is also responsible as an abettor for the offences in question on the ground that the de facto complainant in her complaint did not mention about the mother of the petitioner at all as responsible in her complaint for her cohabitation with the petitioner and it rejected that request on that ground. Further when it came to the second aspect i.e. subjecting the petitioner/accused to the DNA test to find out whether or not he is the biological father of the child born to the victim, the trial court held that it was necessary in the interests of justice and it allowed only that request. It is challenging this order the petitioner has now filed this criminal petition. 5. Insofar as the order of the trial court which went against the prosecution, it has not challenged the same. Hence the rejection of the request of the investigating officer for further investigation on the aforesaid first and third aspects need not be gone into in this petition. It has now to be seen whether the order of the trial court suffers from any illegality or infirmity insofar as it pertains to permitting the investigating officer to subject the petitioner to DNA test for the purpose of ascertaining whether or not he is the biological father of the child born to the victim. 6. The learned counsel for the petitioner pointed out that the case is of 2006 and in the course of arguments he informed that P.Ws.1 and 2 were already examined and at a later stage i.e. belatedly the investigating officer in collusion with the brothers of the victim filed the present application before the trial court in order only to harass him. He has also pointed out that the investigating officer could have taken this step at the very threshold and after the trial is commenced it is not necessary and the court below can decide this aspect on evidence. On the other hand, the learned Additional Public Prosecutor pointed out that the order of the trial court permitting the DNA test cannot be said to prejudice the petitioner in any manner and in fact if he is innocent the said DNA test will be helpful to him also. So far as the delay is concerned, the learned Additional Public Prosecutor admitted that there is delay but in the interests of justice the DNA test has been considered necessary by the trial court and consequently there is no illegality or infirmity in the order of the trial court and it does not call for interference. 7. Having regard to the circumstances of the case I am of the opinion that the contention of the learned Additional Public Prosecutor can be upheld for the following reasons. To repeat, it may be noted that the substance of the accusation against the petitioner/accused is that he was a neighbour of the victim girl and took advantage of that and befriended her and slowly on the pretext of love and on the promise of marriage he went close to her and started cohabitation with her. That cohabitation according to the prosecution has also resulted in pregnancy. It is stated that at the time of filing of the charge sheet the victim was pregnant and the petitioner was the author of that pregnancy and subsequently for one reason or the other the prosecution could not take steps for conducting DNA test and since the trial is not yet over it can be said that no prejudice would be caused to the petitioner. It may also be noted that if ultimately the DNA test result goes in favour of the petitioner that may also clinch the issue in his favour. It is the version of the prosecution that the child was born out of the gestation period commencing from the dates during which there was cohabitation between the petitioner and the victim. Hence the order of the trial court in my opinion on this aspect cannot be said to suffer from any illegality or infirmity. 8. One question which may arise is whether the request of the investigating officer for subjecting the petitioner to DNA test for the purposes of this case would amount to carrying on further investigation as contemplated under Section 173(8) of Cr.P.C or should it be treated as a request for securing expert opinion to prove the prosecution case. This is a mere technical aspect. In either case it may be noted that the prosecution can be given such a right. What should be noted is that the proposed DNA test which is ordered by the trial court would serve the ends of justice for either party in this case. It is now well settled that mere delay in applying for expert opinion cannot be a ground for rejecting such application when ends of justice require that courts should go in such an expert opinion. That is what has been held by the trial court before which the case was pending. In my opinion for the reasons aforesaid and in the circumstances of this case the impugned order of the trial court cannot be said to be illegal on any ground. 9. Accordingly for the aforesaid reasons this petition is dismissed. The investigating officer shall take steps for implementing the order of the trial court regarding the DNA test in accordance with law and the trial court may give sufficient time to the prosecution for that purpose and then proceed with the matter. ______________________ N. RAVI SHANKAR, J 20th July 2011 CVRK