Section 53-A CRPC | MP High Court Directs DGP To Ensure Mandatory Provisions Regarding DNA Profiling In Rape Cases Are Adhered To

Placing reliance on the observations of the Supreme Court in the case of Chotkau v. State of Uttar Pradesh, the bench comprising Justice Vishal Mishra noted that it is mandatory that the DNA samples be sent for examination, more particularly in POCSO cases-

From the perusal of the aforesaid verdict of the Hon'ble Supreme Court it is apparently clear that the provisions of Section 53A has been incorporated in Criminal Procedure Code w.e.f. 23.06.2006 and the aforesaid provision contemplates for examination of the victim as well as the accused and the description of the material collected from the person of the accused as well as victim should be sent for DNA profiling. The authorities have failed to consider the aforesaid provisions of the Criminal Procedure Code…Now, in view of the judgment passed by the Hon'ble Supreme Court in the case of Chutkau (supra) and considering the provisions of Section 53 A Cr.P.C. the samples are required to be sent for DNA examination especially in rape cases and more particularly in cases of minors wherein the provisions of POCSO Act are attracted.

Facts of the case were that the Applicant was accused for offences punishable U/S 376, 376 (2) (N), 363, 506 IPC and U/S 7, 8 of POCSO Act.

While arguing his bail application, he submitted that the victim as well as her mother had turned hostile before the trial court. He further pointed out that the FSL report turned out to be negative. Thus, he prayed that he be granted bail.

Per contra, the State opposed the application. It was submitted before the Court that since the FSL report turned out to be negative the DNA profile was not sent by the Police for examination. The State referred to the directions given by the Court in the case of Raja Burman @ Rahu v. The State of Madhya Pradesh, wherein the Police was directed that if the doctor preparing the MLC of the Prosecutrix prepares vaginal slides and clothing, which upon test by the FSL confirms the presence of human sperm then such slides must be sent for DNA verification with the blood sample of the suspect. It was brought to the attention of the Court that owing to the directions given in the Raja Burman case, the police is not sending samples for DNA once the FSL is found to be negative.

Examining the submissions of parties and documents on record, the Court found it fit to grant the liberty of bail to the Applicant.

The Court then brought its attention to the importance of sending samples for DNA profiling in rape cases, especially in cases involving minor victims-

Especially in the rape cases with respect to minors wherein the provisions of POCSO Act are attracted the samples collected during investigation are required to be sent for DNA examination. POCSO Act being a special enactment to see that the children were below 18 years should not indulged into illegal activities and making of physical relation even with the consent of the victim, who happens to be a minor is punishable under the POCSO Act, therefore, there are instances where a boy and a girl aged nearing above 16 years and below 18 years are indulged in physical relationship with so called consent and victim resiles from her earlier statement but as the provisions of POCSO Act are attracted in such matters, therefore, the DNA profiling is required in the matter in terms of provisions of Section 53A of Cr.P.C.

Thus, the Court directed the State DGP to issue necessary instructions/directions, considering the decision of the Apex Court in Chotkau case. Accordingly, the application was disposed of.

Case Title: DURGESH VERSUS THE STATE OF MADHYA PRADESH

Case Citation: 2022 LiveLaw (MP) 293

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