[S.53A CrPC] Filling Gaps Of Prosecution Case By Seeking DNA Profiling Of Accused After Completion Of Investigation Offends Article 21: Calcutta HC

The Calcutta High Court has held that filling up gaps in the prosecution case by invoking Section 53A (examination of person accused of rape by medical practitioner) of the Criminal Procedure Code (CrPC) would offend Article 21 of the Constitution.

A single bench of Justice Moushumi Bhattacharya sitting at the High Court's Circuit Bench at Port Blair held:

It is clear from the facts of the present case that the prosecution sought to fill in the gaps in its case by applying for DNA profiling. Diversion of the procedure established under the Cr.PC or creating a procedure unknown to law raises the presumption of arbitrariness which is violative of rights of the accused. Article 21 of the Constitution embodies a fair trial and presumes that every person will have the benefit of a trial which follows the procedure established by law. The principles of criminal jurisprudence cannot be diluted or bent to justify civil or social considerations which are collateral in nature.

Brief facts

The Court was dealing with a plea against an order by the special judge POCSO, who allowed the prosecution's application for taking blood samples of the accused, victim, and minor baby of the victim for DNA profiling.

Petitioner's counsel argued that the application for DNA testing was made only to fill up the gaps in the prosecution case, after the commencement of trial.

It was argued that such an application was made after the completion of the cross-examination, and that a public prosecutor under Section 32 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, did not have the authority to direct the police to act in an investigative capacity.

It was argued that the accused was prejudiced, since the victim was asked to reappear in court after completion of her examination.

State argued that the invocation of 53A CrPC cannot be faulted. It was submitted that the section could be invoked at any time for the purpose of adducing additional evidence.

It was argued that the reasons for allowing the DNA test was the presumption of paternity of the child born to the victim by the accused.

Court's Findings

It was noted that under the CrPC, the various stages of a trial had been elaborated.

Court found that since its inception under Section 154 of the CrPC, trial proceeds till a judgment of acquittal or conviction under Section 235 CrPC.

It was observed that in this case, the trial had effectively ended the period for further investigation and thus the order directing for DNA profiling of the accused under Section 53A CrPC was contrary to the procedure established.

Court noted that the gaps in the prosecution case were evident from the failure of the police to collect material during the course of the investigation, and Section 53A CrPC only provided a roadmap to the police after arrest.

It was observed that Section 53A(5) had sufficiently clarified that the legislative intent to use Section 53A CrPC as a tool for investigation, would only be during the stage of investigation, and it did not vest any powers in a court to direct an investigation after the charges had been framed, thereby ending the investigative phase.

It further held that in the present case, the petitioner had been granted bail during the investigation, but the investigating officer had failed to proceed under Section 53A during the investigation, even after the child had been born during the pendency of the investigation. 

Ignoring the gaps in the investigation in the form of collecting material contemplated under section 53-A gives rise to a presumption that the prosecution sought to fill up the gaps by invoking section 53-A after the stage of the investigation was over, the Court observed. 

It was held that the trial court allowed the application for DNA profiling on the grounds that the accused would not suffer any prejudice, since the paternity of the child had to be determined.

Court noted that the presumption of paternity was merely a civil consideration and could not come at the cost of jeopardising the rights of the accused. It said:

The adjudication of guilt is to be determined within the procedure laid down in the Cr.PC. The future interest of the child, however laudable, cannot justify invoking a provision at any point of time in contravention of the provisions of the Cr.PC.

It concluded that although the concept of privacy stood diluted in criminal proceedings, Article 21 of the Constitution would come into play if there was a deviation from procedure, as in the present case.

Court held that the prejudice caused to the petitioner was irreversible once the trail court allowed new evidence to be taken after the investigation to fill the gaps in the prosecution case, and that such actions offended the Article 21 rights of the petitioner. It said:

 Article 21 of the Constitution embodies a fair trial and presumes that every person will have the benefit of a trial which follows the procedure established by law. The principles of criminal jurisprudence cannot be diluted or bent to justify civil or social considerations which are collateral in nature.

Citation: 2024 LiveLaw (Cal) 47

Case: SANJAY BISWAS v THE STATE

Case No: CRR 28/2023

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