Accused Can Refuse To Give Blood Sample After Court Orders DNA Profiling In Rape Case: Rajasthan High Court
The Rajasthan High Court has ruled that a judicial order permitting DNA profiling of an accused in a rape case does not by itself violate the constitutional protection against self-incrimination under Article 20(3), because even after passing of such an order by the court, the choice would lie with the accused to refuse giving his blood sample.
Single-judge bench of Justice Arun Monga observed,
"...option/choice lies with the petitioner whether or not to give his blood sample for the contemplated DNA test. If he does not want not to give his blood sample for the contemplated DNA test, the petitioner can appear in the learned trial Court and make a categorical statement refusing to give his blood sample. Needless to say that in that case, he will bear the legal consequences of such refusal."
The Court was hearing a plea moved by a POCSO accused, challenging the Special Court's order allowing complainant's application for accused's DNA examination by a medical expert.
As per the FIR lodged by survivor's father, accused committed forcible intercourse with the minor and the latter gave birth to a baby girl during pendency of trial. Following this, the survivor's father preferred an application before the Special Judge for a DNA examination of the accused and the baby girl, which was allowed. It was against this that a petition was moved by the accused claiming it to be a violation of Article 20(3) of the Constitution.
The Court held that even after an order to this effect was passed by the court, the option lied with the accused to deny giving his blood and giving a statement of such refusal.
"I am of the opinion that mere passing an order by the Court for DNA profiling of the accused by itself does not violate the Constitutional protection against self-incrimination as enshrined in Article 20(3) and that after passing of such an order by the Court, the option/choice still lies with the accused whether or not to give his blood sample for the contemplated DNA test."
It was further observed that such a choice would attract legal consequences as enumerated in Section 119 of BNSS which lays down circumstances in which the Court may presume certain facts. One of the illustrations in the Section elaborated one such circumstance,
“119. Court may presume existence of certain facts.- The court may presume the existence of any fact which it thinks likely to have happened, regad being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations
The court may presume-
XXX XXXXXX
(h) if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him.”
Furthermore, the Court also opined that conjoint reading of Sections 2(1), 35, 52 and 193 of BNSS, authorized such medical examination, making it non-violative of Article 20(3).
Reference was made to Section 193 which provides that after submission of the police report to the Magistrate, the trial court was vested with the power to allow/order further investigation during the trial under proviso to Section 193(9) of BNSS. In relation to this, the Court mentioned that Section 2(1)(l) defined 'investigation' as all the proceedings under BNSS for collection of evidence conducted by a police officer or by any person who was authorized by a magistrate in this behalf.
Consequently, the Court referred to Section 35 of the Act that provided that any police officer may arrest any person for proper investigation and Section 52 laid down that when a person was arrested for the charge of rape or attempt to rape, and there were reasonable grounds for believing that the person's examination shall afford evidence as to the commission of the offence, it shall be lawful for a registered medical practitioner to make such an examination of the arrested person and prepare a report giving the requisite particulars- the description of material taken from the person of the accused for DNA profiling.
In this light, the Court concluded that further investigation, as mentioned under Section 193, included the medical examination that was envisaged under Section 52.
In the background of this analysis, the Court dismissed the petition filed by the accused.
Citation: 2024 LiveLaw (Raj) 296