Trial Court's Direction Of Obtaining Fresh Blood Sample Of Accused Does Not Amount To Further Investigation: Delhi High Court

The Delhi High Court has observed that a Trial Court's direction of obtaining fresh blood sample of an accused does not amount to further investigation or fresh investigation within the meaning of sec. 173(8) Cr.P.C.

Justice Manoj Kumar Ohri was dealing with a Petition filed by a man, accused of committing unnatural sex with a 4 year old minor child, challenging a Special POCSO Court's order directing that he and child victim be medically examined in order to obtain their fresh blood samples.

"..that in the peculiar facts and circumstances of this case the impugned direction does not amount to further investigation but rather constitute repetition of a step already undertaken in the earlier investigation," the Court said.

The complainant had sent her minor son with her driver, petitioner in the matter, to her parental home after which the child complained of pain in his rectum. On her asking, it was informed by the child that the petitioner had committed unnatural sex with him.

According to the FSL report, it was stated that though a DNA profile was generated from the underwear of the child victim, however, no DNA profile could be generated from the blood samples of the petitioner and the child as a result of which the DNA profile could not be matched with the DNA of the petitioner.

The IO had then filed an application before the Trial Court on 26.10.2018 seeking permission for obtaining fresh blood samples of the petitioner and the child victim which was allowed by the trial court.

It was thus the case of the petitioner that the direction contained in the impugned order amounts to further investigation/ reinvestigation which is impermissible once the Magistrate takes cognizance. Reliance was placed on the Supreme Court decision in Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another.

On the other hand, the prosecution submitted that request by the Investigating Officer to permit obtaining of blood sample of an accused is not barred at the stage of trial and that the direction given by the Trial Court vide the impugned order neither amounts to fresh investigation nor reinvestigation, but further investigation. 

Considering the provisions and relevant authorities on the subject, the Court was of the opinion thus:

"From a conjoint reading of the facts of the case and the law on the issue, it is apparent that the impugned direction can neither be termed as "reinvestigation‟ nor as "fresh investigation‟, since there is no direction by the Trial Court to start the investigation ab initio wiping out the earlier investigation altogether."

"The earlier investigation still stands and the Trial Court did not find any fault with it. Even otherwise, the Trial Court had no power to direct either reinvestigation or fresh investigation."

Observing that the facts of the case were peculiar, the Court noted that neither the investigation was defective nor lacking in any manner and that the fault was of the FSL for examining the samples after a considerable amount of time. 

"Pithily put, the Investigating Officer had not come across any additional, more or supplemental material. There was no subsequent disclosure/discovery of any new or additional material whatsoever. By filing the application, the Investigating Officer was only repeating the step which he had already taken in the earlier investigation. In the peculiar facts and circumstances of this case, this Court is of the opinion that the impugned direction does not amount to directing further investigation," the Court said.

Accordingly, while upholding the impugned order, the Court directed the matter to be listed before the Trial Court on 20.09.2021 to proceed further with the case.

"The Trial Court shall ensure that on receipt of the relevant blood samples, the FSL examines them at the earliest and furnishes a Report expeditiously," the Court added.

Title: RAM UDAGAR MAHTO v. STATE

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