IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.07.2010 CORAM THE HON'BLE MR.JUSTICE T.SUDANTHIRAM CRL.R.C.No.770 of 2009 and M.P.No.1 of 2009 Veerapan .. Petitioner/Accused Vs. 1. Ms.Shanmuga Devi .. 1st respondent/Defacto complainant 2. The State, rep. By Station House Officer, Thirunavalur Police Station, Ulundurpet Taluk. (Crime No.331 of 2006) ..2nd Respondent/Complainant Prayer:- Petition filed under Section 397 r/w. 401 of Cr.P.C, praying to call for the records in S.C.No.150 of 2008 on the file of the learned II Additional Sessions Judge, Villupuram, and to set aside the order of the learned II Additional Sessions Judge, Villupuram, passed in Crl.M.P.No.311 of 2009, dated 09.07.2009 in S.C.No.150 of 2008. For Petitioner : Mr.T.V.Rajagopal For R-1 : No Appearance For R-2 : Mr.V.R.Balasubramaniam, Additional Public Prosecutor. - - - - - ORDER The revision petitioner herein is an accused in S.C.No.150 of 2008 on the file of the learned Second Additional Sessions Judge, Villupuram and he is facing charge for the offences under Sections 417 and 376 I.P.C. The trial proceeded against the accused. The prosecution witnesses were examined and the accused was questioned under Section 313 Cr.P.C. Thereafter, the arguments of both prosecution and the defence were heard and the case was also posted for judgment on 24.06.2009. On 24.06.2009, the judgment was not pronounced and it was adjourned to https://hcservices.ecourts.gov.in/hcservices/ 25.06.2009. On that day, P.W.1, who is the defacto complainant had filed a petition under Section 53 of Cr.P.C. praying to send the child and the accused for D.N.A. Test. On the same day, the Investigating Officer had submitted a letter with a prayer to send the accused, P.W.1 and the child for D.N.A. Test. The learned Sessions Judge had also passed an order to subject the accused, P.W.1 and the child for D.N.A. Test. Aggrieved by the said order, the petitioner herein has preferred this Criminal Revision Petition before this Court. 2. The revision was admitted and notice was ordered to the respondents on 11.08.2009. Though notice had been served, the first respondent/defacto complainant/P.W.1 is not represented by any counsel and she is also not appearing before the Court. 3. The learned counsel for the petitioner submitted that the case after being posted for Judgment, allowing the petitioner for D.N.A. Test would amount to filling up the lacuna in the case of the prosecution and reopening the case at the stage of judgment and ordering for fresh investigation to collect fresh materials would cause prejudice to the accused and it is bad in the eye of law. The petition was preferred only by P.W.1 and no application was preferred by the learned Public Prosecutor, who represented the case and the Investigating Officer against normal procedure, has submitted a letter to the Court. It is further submitted that as per the available evidence already recorded, there is absolutely no necessity for conducting the D.N.A. Test and P.W.1 did not even whisper in her evidence that she had given birth to a child. It is also submitted that the learned Sessions Judge should not have presumed that the accused would accede to D.N.A. Test. The learned counsel for the petitioner also relied on a decision of the Hon'ble Supreme Court reported in (2010) 2 M.L.J. (Crl.) 908 (SC) (Smt. Selvi and Others Vs. State of Karnataka) and submitted that the accused cannot be compelled to subject himself for the D.N.A. Test. 4. Per contra, the learned Additional Public Prosecutor submitted that during the cross-examination of the witnesses, the accused had specifically denied the paternity of the child and as such, it is necessary to conduct the D.N.A. Test. It is further submitted that even if the prosecution had not chosen to file an application seeking for D.N.A. Test, nothing prevents the victim from coming forward to file such an application. The prosecution also supports the application filed by the victim-P.W.1. 5. This Court has considered the submissions made by both parties and also perused the records. 6. According to P.W.1, on 18.05.2006, she was raped by the https://hcservices.ecourts.gov.in/hcservices/ accused and when she informed this matter to her parents, the accused begged her parents not to give a complaint and also he promised to marry the victim-P.W.1. When P.W.1 became pregnant, she requested the accused to marry her but the accused wanted to abort the pregnancy and he refused to marry her. Thereafter, she had given a complaint to the police. It appears in the cross- examination that the accused totally denied the occurrence and according to the suggestion put forth by the accused, he had denied the conceivement of P.W.1. Of course, D.N.A. Test could have been conducted during the investigation. Even at the stage of trial, if D.N.A. Test is conducted, it will be useful for deciding the issue. But at the same time, unless the accused accedes and gives his consent for D.N.A. Test, it is not possible to compel the accused to subject himself for D.N.A. Test. Though it is possible for the trial Court to draw an adverse inference from the denial of the accused for the D.N.A. Test, it is not proper to pass an order directing the accused to subject him for D.N.A. Test. 7. It is observed by the Hon'ble Supreme Court in the decision reported in (2010) 2 M.L.J. (Crl.) 908 (SC) (Smt. Selvi and Others Vs. State of Karnataka) at paragraph Nos.126, 165 and 222 as follows:- "126. At this juncture, it must be reiterated that Indian law incorporates the 'rule against adverse inferences from silence' which is operative at the trial stage. As mentioned earlier, this position is embodied in a conjunctive reading of Article 20(3) of the Constitution and Sections 161(2), 313(3) and Proviso (b) of Section 315 (1) of the Cr.P.C. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial judge cannot draw adverse inferences from the refusal to do so. This position is cemented by prohibiting any of the parties from commenting on the failure of the accused to give evidence. This rule was lucidly explained in the English case of Woolmington v. DPP, (1935) AC 462, at p.481: "The 'right to silence' is a principle of common law and it means that normally Courts or Tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the https://hcservices.ecourts.gov.in/hcservices/ Court." 165. In light of the preceding discussion, we are of the view that the results obtained from tests such as polygraph examination and the BEAP test should also be treated as 'personal testimony', since they are a means for 'imparting personal knowledge about relevant facts'. Hence, our conclusion is that the results obtained through the involuntary administration of either of the impugned tests i.e. the narcoanalysis technique, polygraph examination and the BEAP test) come within the scope of 'testimonial compulsion', thereby attracting the protective shield of Article 20(3). II. Whether the involuntary administration of the impugned techniques is a reasonable restriction on 'personal liberty' as understood in the context of Article 21 of the Constitution? 222. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of 'substantive due process' which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to Sections 53, 53- A and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of 'ejusdem generis' and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to 'cruel, inhuman or degrading treatment' with regard to the language of evolving international human right norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the 'right to fair trial'. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the 'right against self-incrimination'." 8. In the counter filed by the accused before the trial Court, it is mentioned that the prosecution and P.W.1 should not dream that the accused will accede to D.N.A. Test. This Court also finds from the counsel appearing for the petitioner that the https://hcservices.ecourts.gov.in/hcservices/ accused is not ready to give his consent for conducting D.N.A. Test. While so, in view of the principles laid down by the Hon'ble Supreme Court, it is not possible to direct the accused to subject himself for the D.N.A. Test. Therefore, the order passed in Crl.M.P.No.311 of 2009, dated 09.07.2009 in S.C.No.150 of 2008 by the learned II Additional Sessions Judge, Villupuram, is set aside and this Criminal Revision Petition is allowed. Consequently, the connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar jrl To 1. The II Additional Sessions Judge, Villupuram. 2.-do- The Principal District Judge, Villupuram. 3. The Station House Officer, Thirunavalur Police Station, Ulundurpet Taluk. 4. The Public Prosecutor, High Court, Madras. 5. The Section Officer, Criminal Section, High Court,Madras. VS(CO) km/26.8. CRL.R.C.No.770 of 2009 https://hcservices.ecourts.gov.in/hcservices/