'No Prohibition On Ordering DNA Test In Deserving Cases, Does Not Amount To Self-Incrimination Under Article 20(3)': Karnataka High Court

Justice HP Sandesh dismissed the petition filed by accused Mallapa @Malingarya. The Court said,

"It is clear that ordering for DNA itself should not be as a matter of routine but wherein deserving cases, the Court can direct for DNA test and there is no prohibition for ordering DNA test and the same is subject to each facts and circumstances of the case."

Further, relying on the case of Kathi Kalu Oghad, the Bench added that self-incriminatory information given by the accused without compulsion does not amount to violation of Article 20(3) of the Constitution of India.

"If the self-incriminatory information has been given by an accused person without any threat, that will not be hit by the provisions of Clause (3) of Article 20 of Constitution of India for the reason that there has been no compulsion," it observed.

The Court also took note of the fact that the Petitioner had approached the Court with a delay of about four years and all the procedures have been followed by the CMO as well as the Investigating Officer.

Case Background:

Based on a complaint filed by the victim on October 4, 2016, police registered a case against the petitioner for the offences punishable under Sections 504, 506, 417 and 376 of IPC. The police investigated the matter and filed the charge sheet against the accused.

Application was given to the Court in December 2016, seeking permission to draw blood samples of the accused to determine whether the petitioner was the biological father of the infant, which is dead. The same was allowed and court ordered for collection of blood samples of the accused for DNA test. Subsequently, the FSL report was received in March 2017 wherein it was opined that the accused is the biological father of the deceased infant.

The accused filed the present petition in May 2021, seeking to quash the order subjecting the petitioner for DNA test and also sought to quash the final report.

Petitioner's arguments:

Main ground contended by the accused is that the very order dated 04.01.2017, 05.01.2017 and the DNA report dated 27.02.2017 and final opinion dated 30.03.2017, are against the principle of natural justice and violative of Article 20(3) of the Constitution of India.

Further, it was said "The impugned orders are not reasoned orders. There is nothing to show that the accused was heard in the matter by explaining the consequence of the consent given by him for drawing the blood sample and there is no satisfaction or application of judicious mind with respect to the voluntariness of the petitioner in giving consent for drawing the blood sample. Hence, the entire process is unfair and violative of the fundamental right of fair trial."

Prosecution opposed the plea:

It was said that on the consent of the accused only, blood sample was drawn, that too in the Court itself and the Magistrate before permitting to draw the blood sample of the petitioner, enquired the accused (in camera) and explained the scope of drawing of the blood sample and thereafter after obtaining the consent only, blood was drawn.

The blood was drawn on 05.02.2017 itself and the report was received within a span of one and half month. However, the petitioner kept quiet even though the report was received in 2017 itself. The accused cannot be permitted to invoke the Court's writ jurisdiction after lapse of four years.

Court findings:

The court noted that prior to amending Section 53 of Cr.P.C. and Section 53A, there was no specific provision for conducting DNA test and it was a practice and having felt the difficulties of the Investigating Officer in unearthing the truth, the parliament felt that it is necessary to bring an amendment and hence amendment was brought in 2005.

Further it said,

"Section 53A examination of person accused of rape by medical practitioner, wherein the offence on a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medial practitioner employed in a hospital, acting at the request of the police officer not below the rank of a Sub-Inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of a arrested person and to use such force as is reasonably necessary for that purpose."

The court relied on several judgments of the Supreme Court and said that, "The very contention of the petitioner before this Court is that it amounts to self-incrimination and subjecting him for drawing of blood sample in order to test the paternity of the child amounts to violation of Article 20(3) of the Constitution of India, cannot be accepted."

It added,

"If the self-incriminatory information has been given by an accused person without any threat, that will not be hit by the provisions of Clause (3) of Article 20 of Constitution of India for the reason that there has been no compulsion."

The court also referred to procedure followed by the magistrate and said, "The learned Magistrate has secured the accused and examined him (in camera) and explained the consequences and thereafter he gave the consent and the learned Magistrate directed the CMO and also the Investigating Officer to follow the procedure as laid down under Sections 53, 53A and 164A of Cr.P.C. Only in compliance of the same and on the consent of the accused, which has been recorded in the order sheet, ordered to draw the blood sample."

DNA Profiling

In its order, the Bench also ventured into the feasibility of permitting DNA profiling for criminal investigations. It firstly explained that a DNA profile is a record created on the basis of DNA samples made available to the forensic experts.

"Creating and maintaining DNA profiles of offenders and suspects are useful practices since newly obtained DNA samples can be readily matched with the existing profiles that are already in the possession of the law enforcement agencies. The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts and further held that the taking and retention of DNA samples, which are in the nature of physical evidence does not face constitutional hurdles in the Indian context," the Court said.

However, it added, if the DNA profiling technique is further developed and used for testimonial purposes, then such uses in the future could face challenges in the judicial domain.

Case Title: Malappa @Malingaraya v. State of Karnataka

Citation: 2022 LiveLaw (Kar) 3

Case No: WP 201162/2021

Date of Order: December 10, 2021

Appearance: Advocate Mahantesh Patil for petitioner; Advocate Gururaj V Hasilkar for respondents