IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.04.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM CRL.O.P.No.35499 of 2007 C.Rajaram .. Petitioner -Vs- 1.Jothi 2.R.Vivekanandan (Minor represented by first respondent) .. Respondents Prayer:Criminal Original Petition filed under Section 482 of Criminal Procedure Code to call for the records on the file of the Principal Sessions Judge, Vellore in respect of the order dated 07.10.2004 passed in Criminal Revision Petition No.3 of 2004 confirming the order of the learned Judicial Magistrate No.I, Tirupattur, dated 16.12.2003, passed in Criminal Miscellaneous Petition No. 1601 of 2003 in M.C. No. 19 of *2002, and set aside the same. For Petitioner : Mr. K.S. Gnanasambandan For Respondents : Mr. L. Mahendran O R D E R The petitioner seeks a direction towards conduct of D.N.A. test for the purpose of establishing the paternity of a Child, alleged to be his. 2. The petitioner and the first respondent married on 07.09.1995. The first respondent delivered a male child/second respondent on 18.05.1996. The petitioner contends that on the very date of marriage, the first respondent informed of a relationship with an other and of being in the family way, and requested the petitioner not to have anything to do with her. Thereafter, the first respondent went to her parents house and did not return and gave birth to a male child on 18.05.1996. The petitioner had obtained an order of divorce which had not been appealed against by the first respondent. The first respondent had filed a petition for maintenance for herself and for the second respondent/minor child. The petitioner moved a petition seeking the conduct of a D.N.A. test which was dismissed by the learned https://hcservices.ecourts.gov.in/hcservices/ Judicial Magistrate No.I, Tirupattur, where against the petitioner filed a Criminal R.P. No. 3 of 2004 before the Principal Sessions Judge, Vellore, which also was dismissed by the said Court. In these circumstances, the petitioner is before this Court. 3. The learned counsel for the respondents strongly contested the submissions made by the learned counsel for the petitioner and informed that the petitioner had failed to pay maintenance even to the first respondent till date. He also submits that Section 397 (3) Cr.P.C. would be a bar to a second revision petition by the same petitioner. 4. I am of the considered view that Section 397(3) Cr.P.C. would not be a bar for exercise of powers under Section 482 Cr.P.C., in an appropriate case. In 1997 Crl.L.J. 1519 (Krishnan and another v. Krishnaveni and another), the Supreme Court has held as follows: "7. It is seen that exercise of the revisional power by the High Court under Section 397 read with Section 401 is to call for the records of any inferior Criminal Court and to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and to pass appropriate orders. The Court of Session and the Magistrates are inferior Criminal Courts to the High Court and Courts of Judicial Magistrate are inferior Criminal Courts to the Sessions Judge. Ordinarily, in the matter of exercise of power of revision by any High Court, Section 397 and Section 401 are required to be read together. Section 397 gives powers to the High Court to call for the records as also suo motu power under Section 401 to exercise the revisional power on the grounds mentioned therein, i.e., to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court, and to dispose of the revision in the manner indicated under Section 401 of the Code. The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that its subordinates Courts do not exceed the jurisdiction or abuse the power vested in them under the Code or to prevent abuse of the process of the inferior Criminal Courts or to prevent miscarriage of justice. https://hcservices.ecourts.gov.in/hcservices/ 8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to meet out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior Criminal Court in its juridical process or illegality of sentence or order. 9. The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and which is preserved by the Code. The object of Section 397(3) is to put a bar on simultaneous revisional applications to the High Court and the Court of Sessions so as to prevent unnecessary delay and multiplicity of proceedings. As seen, under sub-section(3) of Section 397, revisional jurisdiction can be invoked by "any person" but the code has not defined the word 'person.' However, under Section 11 of the I.P.C., 'person' includes any Company or Association or body of persons, whether incorporated or not. The word 'person' would, therefore, include not only the natural person but also juridical person in whatever form designated and whether incorporated or not. By implication, the State stands excluded from the purview of the word 'person' for the purpose of limiting its right to avail the revisional power of the High Court under Section 397(1) of the Code for the reason that the State, being the prosecutor of the offender, is enjoined to conduct prosecution on behalf of the society and to take such remedial steps as to deems proper. The object behind criminal law is to maintain law, public order, stability as also peace and progress in the society. Generally, private complaints under Section 202 of the Code are laid in respect of non-cognizance offences or when https://hcservices.ecourts.gov.in/hcservices/ it is found that police has failed to perform its duty under Chapter XII of the Code or to report as mistake of fact. In view of the principle laid down in the maxim Ex debito Justitiae, i.e., in accordance with the requirements of justice, the prohibition under Section 397(3) on revisional power given to the High Court would not apply when the State seeks revision under Section 401. So the state is not prohibited to avail the revisional power of the High Court under Section 397(1) read with Section 401 of the Code. 10. Ordinarily, when revision has been barred by Section 397(3) of the Code a person- accused/complainant-cannot be allowed to take recourse to the revision of the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court as suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justice can be ensured only with expeditious trial is conducted. " https://hcservices.ecourts.gov.in/hcservices/ 5. Considering the facts and circumstances of the case, this Court is of the considered view that the conduct of D.N.A. test would set at rest the issue between the parties. As held by the Hon'ble Apex Court in 1997 Crl.L.J. 1519 (Krishnan and another v. Krishnaveni and another) D.N.A. tests are considered conclusive in nature. 6. In the peculiar facts and circumstances of the present case, this Court finds that it is appropriate to direct the lower Court to take appropriate steps for the conduct of D.N.A. test of both the petitioner as well as the respondents and obtain a report on the paternity of the second respondent. 7. Accordingly, the criminal revision petition is ordered and the lower court shall comply with the order of this Court within a period of two months from the date of receipt of a copy of this order. Sd/- Asst. Registrar Dated: 10.6.2010 * Amended as per order of this Court dated 14.7.2010 in Crl.O.P.35499/07 Sd/ Assistant Registrar Dated 20.7.2010 //True Copy// Sub Asst. Registrar kj To 1.The Judicial Magistrate No.I Tirupattur. To be substituted to the order already 2.The Principal Sessions Judge despatched on 19.7.2010 Vellore. GR(CO) SR/11.6.2010 kk 20/7/2010 CRL.O.P.No.35499 of 2007 https://hcservices.ecourts.gov.in/hcservices/