Shankar @ Palanisamy v. State by Inspector of Police All Women Police Station, Sankari & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.07.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.OP.No.18771/2006Cr.MP.Nos.1/06 & 1/07Shankar @ PalanisamyPetitioner/Accused VsState by Inspector of Police All Women Police Station, SankariRespondent/ComplainantPrayer:- This Criminal Original Petition is filed to call for therecords of FIR and the summon dated 10.7.2006 in Crime No.15/2005on the file of the Inspector of Police, All Women Police Station,Sankari.For Petitioner:Mr.C.D.JohnsonFor Respondents:Mr.S.Senthilmurugan for PPORDER The Petitioner, who is facing charges by the RespondentPolice for the offences under Sections 417 and 506(ii) of IPC, hasfiled this Criminal Original Petition to quash the summons dated10.7.2006 issued to him in Cr.No.15/2005 by the Respondent Police.2. The Respondent Police has registered a case against thePetitioner on the complaint given by one P.Rajeswari Alias Sakthi.The allegation in the complaint is that the Petitioner gave a falsepromise of marrying her and had sexual intercourse with her and shehad become pregnant and at the time of lodging the complaint, itappears that she had delivered a baby.3. According to the Petitioner, he was arrested by theRespondent Police and was in judicial custody from 19.5.2005 andwas granted bail by the learned Judicial Magistrate II, Sankari inCMP.No.1417/2005 on 9.6.2005. It appears that a summons was pastedon the door of his house, calling upon him to appear before thelearned Magistrate on 13.2.2006 and on his appearance, the learnedMagistrate had directed the Petitioner to appear on 15.2.2006 andon 16.2.2006 for taking DNA Test at Chennai on 17.2.2006.4. The contention of the Petitioner is that he filed apetition for objection before the court on 16.2.2006, but the samewas 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 ofrequisition filed by the Respondent Police, learned Magistrate hadissued non bailable warrant on 14.3.2006 and pursuant to the saidwarrant, the Petitioner had been arrested and remanded to thejudicial custody on 19.5.2006. Thereafter, he had been grantedbail by the learned Principal Sessions Judge, Salem.5. It is submitted by the Petitioner that he applied for acopy of the application of the requisition letter given by theRespondent Police as well as the order passed in the petition filedby him, objecting to the DNA Test, but the learned Magistrate hadreturned the said copy application as not maintainable. Accordingto him, in spite of his objection filed on 25.5.2006, the learnedMagistrate had observed in the docket order as "The Petitioner hasalready given his consent to appear before the Forensic Departmentand subsequently absconded causing heavy loss to the State. Hence,petition is returned." Now it appears that the learned JudicialMagistrate had issued a summons dated 10.7.2006 directing thePetitioner to appear before the court on 19.7.2006, which has beenchallenged in this Criminal Original Petition.6. Mr.C.D.Johnson, the learned senior counsel for thePetitioner contended that there was no letter of requisition fromthe Sub Inspector of Police to subject the Petitioner to DNA Testand in the absence of any such requisition letter from the Police,the learned Judicial Magistrate has arbitrarily referred him to DNATest, which caused prejudice and injustice to him.7. The learned Public Prosecutor for the Respondent drewthe attention of this court to the letter of requisition made bythe Sub Inspector of Police, All Women Police Station, Sankari, inwhich the history of the case is narrated and the requisition ismade by the said Officer to the court to subject the accused,victim woman and the six months old child for DNA Test at Chennaito find out whether the child was born to the Petitioner and thevictim woman. The said letter of requisition has been made by SubInspector of Police on 29.12.2005. Pursuant to the saidrequisition, the learned Magistrate had directed the Sub Inspectorof Police to cause production of the accused Petitioner, victimwoman and the infant 10.1.2006 before the court for preparation forDNA Test. Since the accused was not available, he could not beproduced on 10.1.2006 and therefore, summons was issued by thelearned Magistrate, which was served by affixing it on the doors ofthe house of the accused, as he was absconding directing him toappear before the court on 13.2.2006. Accordingly, all the threepersons had appeared before the learned Magistrate on 13.2.2006and the court had directed them to appear on 15.2.2006. On theirappearance, the learned Judicial Magistrate had again directed theSub Inspector of Police to produce them before the Forensic ScienceLaboratory for DNA Test on 17.2.2006. On the said date, it appearsthat the accused has consented for the DNA Test and had signed inthe covering letter of the Court addressed to the Assistant https://hcservices.ecourts.gov.in/hcservices/ Director, Forensic Laboratory at Chennai. The Petitioner had beenspecifically directed to be present before the Sub Inspector ofPolice 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 andtherefore, he was not taken to the DNA Test on 17.2.2006 atChennai, though the victim girl and the child was very muchpresent. 8. In view of the conduct of the Petitioner in acting indefiance of the order of the Sub Inspector of Police, non bailablewarrant had been issued against him and subsequently he had beengranted bail by the learned Principal Sessions Judge, Salem.Thereafter, the date has been fixed for DNA Test on 23.6.2006 andhe has been directed to be present before the court on 19.6.2006,but he failed to appear, but has challenged the summons issued tohim in that regard.9. The materials placed on record by the learned PublicProsecutor shows that a request has been made by the Sub Inspectorof Police and pursuant to the said request, the learned Magistratehas passed an order to subject the accused, victim and the childfor DNA Test. 10. Section 53 of Code of Criminal Procedure contemplatesas under:-"53(1) When a person is arrested on a charge ofcommitting an offence of such a nature and alleged tohave been committed under such circumstances that thereare reasonable grounds for believing that anexamination of his person will afford evidence as tothe commission of an offence, it shall be lawful for aregistered medical practitioner, acting at the requestof police officer not below the rank of sub inspector,and for any person acting in good faith in his aid andunder his direction, to make such an examination of theperson arrested as is reasonably necessary in order toascertain the fats which may afford such evidence, andto use such force as is reasonably necessary for thatpurpose.(2) Whenever the person of a female is to be examinedunder this Section, the examination shall be made onlyby, or under the supervision of, a female registeredmedical practitioner(a) "examination" shall include the examination ofblood, blood stains, semen, swabs in case of sexualoffences, sputum and sweat, hair samples and fingernail clippings by the use of modern and scientifictechniques including DNA profiling and such other testswhich the registered medical practitioner thinksnecessary in a particular case" https://hcservices.ecourts.gov.in/hcservices/

11. From the above, it is clear that when a request is madeby a Police Officer not below the rank of sub inspector uponreasonable grounds which such officer bona fidely entertains thatan examination of the arrested person by a medical practitionerwill afford evidence as to the commission of the offence, then thecourt can issue direction to cause production of the accused alongwith the victim girl and the child for examination for DNA Test.The object of Section 53 of Code of Criminal Procedure has beenmade to facilitate effective investigation. Special protection isafforded to females and it lays down a condition that medicalexamination will have to be done at the instance of a policeofficer, not below the rank of sub inspector. However, it does notdebar the court concerned from exercising such power, if it isnecessary for doing justice in a criminal case. If a party refusesto submit to blood test or other examination, the court can in thecircumstances of the case use the refusal or failure of the accusedto submit to blood test as a corroborative evidence against him.12. New explanation to Section 53 has been inserted by theCode of Criminal Procedure (Amendment) Act 2005 (25 of 2005) that"examination" in this section and in Sections 53A and 54 shallinclude the examination of blood, blood stains, semen, swabs incase of sexual offences, sputum and sweat, hair samples and so on,including the DNA profiling which the registered medicalpractitioner thinks necessary in a particular case. Theexamination of the accused contemplated under Section 53 includestaking of blood from the accused. Therefore, taking of blood ofthe accused for the purpose of DNA test will not amount tocompelling an accused to become a witness against himself violativeof Art.20(3) of the Constitution of India. Release of an arrestedperson on bail cannot take away the reality of the situation andthe arrested person does not cease to be an arrested person or anaccused person for the purpose of Section 53 and 54, his medicalexamination can be ordered. 13. In case of Solaimuthu Vs. State and another [2005-Crl.LJ-31], when the examination of accused by medical practitionerat the request of police in relation to a dispute regardingpaternity of child was challenged, this court has held thatpositive evidence of woman is that it was the Petitioner who hasfathered the child and it became necessary that blood has to benecessarily analysed and therefore, the order directing thePetitioner to undergo blood test cannot be held to be improper. Itis held as follows:-"9. On consideration of the above cited decision, inmy opinion. Section 112 of the Evidence Act does notcome to the rescue of the Petitioner herein. ThisSection would apply only when the father is able toestablish that he has no access to have sexualintercourse 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, thepositive evidence of the woman is that it was thePetitioner, who has fathered the child and therefore,it is but necessary that the blood has to benecessarily analysed."14. In this case, it is seen from the records that thePetitioner had given consent for subjecting himself to the DNA Testand thereafter, rescinding from it and absconded himself, whichnecessitated the learned Judicial Magistrate to issue non bailablewarrant on the requisition made by the Sub Inspector of Police.The learned Judicial Magistrate has observed that the Petitionerhaving given consent, in order to escape from being subjected tothe DNA Test has absconded himself and therefore, issued summons tothe Petitioner to appear before the court to subject himself to theDNA Test. Since the accused was absconding, summons had beenaffixed on the door of the house of the Petitioner. The learnedJudicial Magistrate is perfectly justified in directing the SubInspector of Police to produce the Petitioner for the purpose offurther investigation of the case i.e for subjecting the Petitionerfor DNA Test. 15. In view of the above said reasons, I do not find anyillegality or infirmity in the issuance of summons to thePetitioner or affixing the same on the door of the Petitioner andthere are no merits in this case, warranting interference by thiscourt. Hence, this Criminal Original Petition is dismissed.Consequently, the connected MP is closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSrcm 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