Harjinder Kaur v. State Of Punjab And Others, Punjab & Haryana High Court, Judgment, Law, casemine.com

Precedent	Rule or Principle Cited For	Application by the Court
Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418	Court's power to order medical tests including blood tests; adverse inference on refusal to comply; DNA tests not to be ordered routinely but on strong prima facie case.	Applied to emphasize that DNA testing can be ordered if a strong prima facie case exists and refusal to comply may attract adverse inference.
Sharda v. Dharmpal, (2003) 4 SCC 493	Clarification on ordering medical tests; balancing interests of privacy and truth; DNA testing not to be ordered routinely but when eminently needed.	Used to support discretionary power of courts to order DNA tests after balancing interests involved.
Kanti Devi v. Poshi Ram, (2001) 5 SCC 311	Presumption of legitimacy under Section 112 of Evidence Act; rebuttal by proving non-access.	Referred to for evidentiary presumptions relating to paternity and DNA testing relevance.
Selvi v. State of Karnataka, (2010) 7 SCC 263	Prohibition on involuntary administration of certain scientific techniques; distinction between physical samples and testimonial evidence; DNA testing permissible with safeguards.	Clarified that DNA sampling is a physical examination permissible under law and does not violate right against self-incrimination.
Rohit Shekhar v. Narayan Dutt Tiwari, 2012(2) RCR (Crl.) 889	Persons can be physically compelled to undergo DNA tests in paternity disputes; adverse inference insufficient remedy alone.	Followed to hold that physical compulsion for DNA testing is permissible and necessary in some cases.
Miss. Swati Lodha v. State of Rajasthan, 1991 Cri.L.J 939	Refusal without reasonable excuse to supply DNA sample can amount to corroborative evidence; adverse inference can be drawn.	Applied to support drawing adverse inference against respondent for refusal to undergo DNA testing.
Veeran v. Veerav, AIR 2009 Madras 64	DNA test accuracy and admissibility; DNA test does not violate fundamental rights.	Relied upon to affirm that DNA testing is reliable and not violative of rights under Article 21.
Breithaupt v. Abram, 352 U.S 432 (1957)	Constitutionality of blood sampling without consent; absence of consent alone does not render sampling unconstitutional.	Referenced to support legal permissibility of blood sampling even without conscious consent.
Rochin v. California, 342 U.S 165 (1952)	Limits on state conduct in obtaining evidence; actions that “shock the conscience” violate due process.	Distinguished to clarify that non-brutal extraction of blood samples is permissible.
Daubert v. Merrel Dow Pharmaceuticals, 509 U.S. 579 (1993)	Standards for admissibility of scientific expert evidence.	Used to emphasize court's gatekeeping role in assessing scientific validity and reliability of DNA evidence.

Paramjeet Singh, J.

THE PRAYER:

2. Instant petition under Section 482 Cri. P.C has been filed for direction to respondent No. 2 — Commissioner of Police, Ludhiana to supply the outcome of representation dated 7.10.2011 (Annexure P-3) given by the petitioner and also for direction to conduct the DNA test of respondent No. 3 — Mann Singh Sarpanch (wrongly mentioned as respondent No. 2 in the petition), petitioner and the daughter of the petitioner, in the interest of justice.

THE FACTS:

3. The facts, as alleged in the petition, are that 12-13 years back, the petitioner was under the influence of respondent No. 3 — Mann Singh, Sarpanch of village Hawas, Rahon Road, Ludhiana. Respondent No. 3 had developed illicit relations with petitioner which continued for many years and out of their illicit relationship a female child has born. It is also alleged that Sarpanch used to force the petitioner to have illicit relations with his friends. When the petitioner refused to have physical relations with him and his friends, respondent No. 3 started black-mailing the petitioner and committing rape upon the petitioner in the year 2009 forcibly without her consent. Petitioner submitted representation to SSP, Ludhiana and to the Police Commissioner, Ludhiana but no action was taken. The petitioner filed Crl. Misc. No. M-3165 of 2010 wherein, vide order dated 27.10.2011, a direction was issued to decide the representation within two months. It is submitted that no proper investigation was carried out by the investigating agency, no blood grouping, DNA test of the petitioner, of daughter of the petitioner and of respondent No. 3 has been conducted. Respondent No. 3 is alleged to be an active member of the ruling Akali Dal Party and is the village Sarpanch, has considerable influence on the police. It is also alleged that one Major Singh, a close friend of respondent No. 3 is also posted in the Police Station and has been helping the petitioner.

REPLY BY RESPONDENTS:

4. Notice of motion was issued in this case. Respondent Nos. 1 and 2 have filed reply and in the reply it is averred that during preliminary inquiry, allegations of the petitioner were found to be false. Hence, there was no question of conducting DNA test of respondent No. 3. It is also alleged that proceedings under Section 182 IPC had been initiated against the petitioner. It is also mentioned that the petitioner has not come to the court with clean hands. The allegations have been levelled to wreak vengeance. Earlier, the petitioner had moved complaints against the panchayat members levelling allegation of demolishing her boundary walls. The said complaint was found false. Respondent No. 3 was afforded adequate opportunities to file reply to the petition, but for the reasons best known to him he did not file reply, despite being represented by a Learned Counsel.

5. I have heard learned Counsel for the parties and perused the record.

CONTENTIONS OF THE LEARNED COUNSEL FOR THE PARTIES:

6. Learned Counsel for the petitioner has vehemently contended that crime against women is increasing every day and the innocent rustic village women do not come out against the influential persons in spite of harassment and their forcible physical exploitation. This is primarily for the reason that no woman, specifically a rustic village woman, will come out because of fear that her honour and dignity may not be maligned. The woman in India approach the courts and authorities only in extreme cases. The learned Counsel for the petitioner submitted that petitioner was being exploited for the last 12-13 years. A female child out of illicit relationship of petitioner and respondent No. 3 has born. Learned Counsel for the petitioner submitted that name of the child has been intentionally withheld in order to keep identity of the child confidential, so that her honour and dignity may not be affected in future and may also not affect her marriage and other prospects. Learned counsel further vehemently argued that non filing of reply to the averments made in the petition by respondent No. 3 amounts to admission of the averments, so an adverse inference should be drawn against respondent No. 3. Averments in the petition should be taken as correct.

7. Learned counsel for respondent No. 3 vehemently contended that preliminary investigation has already been done and respondent No. 3 has been found to be innocent. It is contended that since the wall of the petitioner was demolished by the panchayat members, this complaint has been filed to involve them. Respondent No. 3 cannot be compelled to undergo DNA test on flimsy grounds. The presumption with regard to the child can only be considered if it is proved that the petitioner had continuous relationship with respondent No. 3 and had no relation with any other person. He submits that for ordering DNA test of respondent No. 3, petitioner and the alleged girl child, amounts to violation of the right against self-incrimination. DNA test is not absolutely authentic, and is not fully grown scientific method at least in India.

8. Before I deal with the above mentioned contentions of the parties it would be appropriate to refer to the relevant provision of law and jurisprudence and to know about DNA and DNA evidence.

RELEVANT LAWS, RULES AND JURISPRUDENCE:

Code of Criminal Procedure: Sections 53, 53-A, 54 and 293:

53. Examination of accused by medical practitioner at the request of police officer.— (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-Inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

[Explanation.— In this Section and in Section 53-A and 54—

(a) “examination” shall include the examination of blood, blood-stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clipping by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;

(b) “registered medical practitioner” means a medical practitioner who possesses any medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register.

53-A. Examination of person accused of rape by medical practitioner.— (1) When 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 medical petitioner employed in a hospital run by the government or by the local authority and in the absence of such a petitioner within the radius of sixteen km. from the place where the offence has been committed, by any other registered medical practitioner acting at the request of a police officers 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 and examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical petitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particular namely:—

(i) the name and address of the accused and of the person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA profiling, and

(v) other material particulars in reasonable detail.

(3) The report shall state precisely the reason for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in clause (a) of sub-Section (5) of that section.

54. Examination of arrested person by medical officer.— (1) When any person is arrested, he shall be examined by a medical officer in the service of Central or State Governments and in case the medical officer is not available by a registered medical petitioner soon after the arrest is made:

Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner.

(2) The medical officer or a registered medical practitioner so examining the arrested person shall prepare record of such examination, mentioning therein any injuries or marks of violence upon the persons arrested, and the approximate time when such injuries or marks may have been inflicted.

3. Where an examination is made under sub-section (1) a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person of the person nominated by such arrested person.

293. Reports of certain Government scientific experts.— (1) Any document purporting to be a report under the hand of a Government scientific expert to whom this Section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.

(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.

(4) This section applies to the following Government scientific experts, namely:—

(a) any Chemical Examiner or Assistant Chemical Examiner to Government;

(b) the Chief Controller of Explosives;

(d) the Director, Haffkeine Institute, Bombay;

(e) the Director Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;

(f) the Serologist to the Government.

(g) any other Government Scientific Expert specified, by notification, by the Central Government for this purpose.

Indian Evidence Act: Section 5 to 8, 45, 46, 47, 50 and 51

CHAPTER II of the Relevancy of Facts

5. Evidence may be given of facts in issue and relevant facts.— Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

Explanation.— This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to [Civil Procedure].

6. Relevancy of facts forming part of same transaction.— Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant whether they occurred at the same time and place or at different times and places.

7. Facts which are the occasion, cause or effect of facts in issue.— Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.

8. Motive, preparation and previous or subsequent conduct.— Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1.— The word “conduct” in this section does not include statements; unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2.— When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.

9. Facts necessary to explain or introduce relevant facts.— Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.

45. Opinions of experts.— When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting or finger-impressions are relevant facts.

Such persons are called experts.

46. Facts bearing upon opinions of experts.— Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.

47. Opinion as to handwriting, when relevant.— When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not writ ten or signed by that person, is a relevant fact.

Explanation.— A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he had received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.

50. Opinion on relationship, when relevant.— When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act (4 of 1869), or in prosecutions under sections 494, 495; 497 or 498 of the Indian Penal Code (45 of 1860).

51. Grounds of opinion, when relevant.— Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.

The Constitution of India: Article 20 and 21.

20. Protection in respect of conviction for offences. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself.

21. Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law.

9. Extracts from the articles of U.S National Library of Medicine, National Institutes of Health Sciences, are reproduced below.

What is DNA?

“DNA, or Deoxyribonucleic acid, is the hereditary material in humans and almost all other organisms. Nearly every cell in a persons body has the same DNA. Most DNA is located in the cell nucleus (where it is called nuclear DNA), but a small amount of DNA can also be found in the mitochondria (where it is called mitochondrial DNA or mtDNA).

The information in DNA is stored as a code made up of four chemical bases: adenine (A), guanine (G), cytosine (C), and thymine (T). Human DNA consists of about 3 billion bases, and more than 99 percent of those bases are the same in all people. The order, or sequence, of these bases determines the information available for building and maintaining an organism, similar to the way in which letters of the alphabet appear in a certain order to form words and sentences.

DNA bases pair up with each other, A with T and C with G, to form units called base pairs. Each base is also attached to a sugar molecule and a phosphate molecule. Together, a base, sugar, and phosphate are called a nucleotide. Nucleotides are arranged in two long strands that form a spiral called a double helix. The structure of the double helix is somewhat like a ladder, with the base pairs forming the ladders rungs and the sugar and phosphate molecules forming the vertical side pieces of the ladder.

10. An important property of DNA is that it can replicate, or make copies of itself. Each strand of DNA in the double helix can serve as a pattern for duplicating the sequence of bases. This is critical when cells divide because each new cell needs to have an exact copy of the DNA present in the old cell.

11. Mr. Justice R.K Abichahdani, Judge, High Court of Gujarat Sola, Ahmedabad, has written an article on “New biology and criminal investigation”. Extracts from the article are as under:

“…………. Technological advances have made it more reliable, efficient and acceptable. DNA evidence can help to bring home the guilt, acquit the innocent, or exonerate those wrongly convicted. Forensic DNA Technology has revolutionized the modes of investigation of violent crimes as a result of its awesome ability to convict a perpetrator or exonerate a convicted offender. In sexual assault and homicidal cases, the DNA evidence has become a powerful crime fighting tool. The DNA evidence in the form of saliva, blood, skin tissue, hair and semen is often recovered from crime-scenes and is a crucial tool for investigation of violent crimes. Testing methods currently used for analyzing the DNA evidence are considered to be very reliable. Polymerase Chain Reaction (PCR) is the most common form of DNA analysis, because of its capability to amplify very small quantities of DNA. DNA testing can lead to three types of results, namely, inclusion, i.e when the DNA profile of a known individual (a victim or suspect) matches the DNA profile from the crime-scene evidence; exclusion i.e when the DNA profile from an individual (a victim or suspect) does not match the DNA profile from the crime-scene evidence; and inconclusive where the DNA testing did not produce information that would allow an individual to be either included or exonerated as the source of the biological evidence. The real investigative power of DNA technology is realized in the context of the cases where a suspect has not yet been identified. (See ‘Understanding DNA Evidence: A Guide for Victim Service Providers’, By Kathrun M. Turman O.V.C Bulletin, April 2001, U.S Department of Justice).

2. THEORY OF CRIMINALISTICS:

“…… The division of matter and the exchange of material between two objects (Locard Exchange Theory), are scientific principles that relate to the generation of evidence. These concepts of divisibility of matter and transfer of material emerge from the fundamental nature of matter and they assume significance by way of evidence when division and transfer occur in conjunction with a criminal event. The theory that makes concepts of identification, classification and individualization is one attributed Edmund Locard in the early 20th century. As per this theory, when two objects come in contact, traces from one will be transferred to the other, and in both directions. These traces may not be always detectable without scientific aid, but they are always present. This is known as Locard Transfer Theory, which is a linchpin of all forensic examination. The other concepts namely, identification, association through class, individualizing characteristics and reconstruction are integral to the practice of forensic science and are processes that are used to answer various investigative questions. The transfer of matter requires its prior division. After the crime is committed, the process of recognition of evidence follows during investigation for discovering the evidence. However, even if such evidence is never detected, the matter is still divided and transferred. It is only when answering investigative questions about a crime that the processes of association through class and individualizing characteristics and of reconstruction are employed. [Norah Rudin and Keith Inman, ‘An Introduction of Forensic DNA Analysis 2nd Edition]. The process of identification answers the case investigation question of ‘What is it? The process of individualization answers the question of ‘Who is it?. Classification of a physical item is done on the basis of class characteristics. For example, an analyst can identify a human hair on the basis of its microscopic characteristics that distinguish it from animal hair. Individualization relies on the acquisition of traits that are so rare that it would be unreasonable to think of them being duplicated by chance alone (ibid).”

DNA Analysis as Evidence

DNA is the fundamental building block of a persons entire genetic make-up. DNA is found in all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a persons DNA profile can determine his identity. [See Maria Corazon A. De Ungria, Ph.D, Forensic DNA Analysis in Criminal and Civil Cases, 1 CONTINUING LEGAL EDUC. L.J 57 (2001).]

DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for identical twins.(See The UP-NSRI DNA Analysis Laboratory, A Primer on DNA-based Paternity Testing (2001).

12. Everyone is born with a distinct genetic blue print called DNA (deoxyribonucleic acid). It is exclusive to an individual (except in the rare occurrence of identical twins that share a single, fertilized egg). DNA never changes throughout life. DNA is part of every cell in the human body, change DNA of an individuals blood remain in his or her skin cells, hair follicles, muscles, se men, samples from buccal swabs, saliva, or other body parts.

13. The chemical structure of DNA has four bases. They are known as A (adenine), G (guanine), C (cystosine) and T (thymine). The order in which the four bases appear in an individuals DNA determines his or her physical makeup. And since DNA is a double-stranded molecule, it is composed of two specific paired bases, A-T or T-A and GC or C-G. These are called “genes.” Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives a person his or her genetic code. However, somewhere in the DNA frame work, there We sections that differ. They are known as “polymorphic loci,” which are the areas analyzed in DNA typing (profiling, tests, fingerprinting, or analysis/DNA fingerprinting/genetic tests or fingerprinting). In other words, DNA typing simply means determining the “polymorphic loci.”

How is DNA typing performed?

14. From a DNA sample obtained or extracted, a molecular biologist may proceed to analyze it in several ways. There are five (5) techniques to conduct DNA typing. They are: the RFLP (restriction fragment length polymorphism); “reverse dot blot” or HLA DQ a/Pm loci; mtDNA process; VNTR (variable number tandem repeats); and the most recent which is known as the PCR-(polymerase chain reaction) based STR (short tandem repeats) method. PCR is the process of replicating or copying DNA in an evidence sample a million times through repeated cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on the other hand, takes measurements in 13 separate places and can match two (2) samples with a reported theoretical error rate of less than one (1) in a trillion.

15. Just like in fingerprint analysis, in DNA typing, “matches” are determined. To illustrate, when DNA or fingerprint tests are done to identify a suspect in a criminal case, the evidence collected from the crime scene is compared with the “known” print. If substantial amount of the identifying features are the same, the DNA or fingerprint is deemed to be a match. But then, even if only one feature of the DNA or fingerprint is different, it is deemed not to have come from the suspect.

16. As earlier stated, certain regions of human DNA show variations between people. In each of these regions, a person possesses two genetic types called “allele”, one inherited from each parent. In a paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the childs DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged fathers profile is then examined to ascertain whether he has such DNA types in his profile, which match the paternal types in the child. If the mans DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.

17. Since long conventional method of testimonials, documentary evidence and physical resemblance were used to establish parentage. Crime and criminality have undergone tremendous change. For never ending quest for justice and fight against crime needs new and innovative advancements in investigation. Investigation should be done in addition to using conventional methods by applying modern and scientific methods. Fortunately, now the facility and expertise in using DNA test for identification and parentage testing is available.

18. Whether in this case DNA analysis may be used as an investigation tool to prove paternity of child and exploitation of the petitioner by respondent No. 3 by committing forced rape upon her. Rape is serious violation of fundamental right to life of the victim contained in Article 21 of the Constitution and is a crime against basic human right.

19. The issue has been dealt with by various Courts and the latest judgment on the issue is rendered by the Delhi High Court in Rohit Shekhar… v. Narayan Dutt Tiwari & Anr.…, 2011(4) RCR (Crl.) 307. In this judgment, many aspects of legal and scientific importance have been considered. Some of the relevant paragraphs from the judgment are reproduced below:

“11. The defendant No. 1 has also placed reliance on the judgment of the Supreme Court in 2001(3) R.C.R (Civil) 587 : (2001) 5 SCC 311 Kanti Devi v. Poshi Ram on the provisions of section 112 of the Evidence Act. Sh. B.U Barqi, Advocate appearing on behalf of defendant No. 1 has further contended that despite the directions made by the court, the defendant No. 1 cannot be called upon to give his sample. He has sought to urge that the same is the correct reading of the law laid down by the Supreme Court in 1993(2) R.C.R(Criminal) 497 : (1993) 3 SCC 418 : AIR 1993 SC 2295 Goutam Kundu v. State of West Bengal and 2003(2) R.C.R (Civil) 795 : (2003) 4 SCC 493 : AIR 2003 SC 3450 Sharda v. Dharmpal. Placing reliance on the observations of the Apex Court in para 18 of the judgment in Goutam Kundu (supra), it has been argued that not only could the defendant No. 1 be not compelled to give samples but also no adverse inference could be drawn against him for not doing so.

Learned counsel categorically submits that in view of law laid down in 2010(2) R.C.R(Criminal) 896 : 2010(3) Recent Apex Judgments (R.A.J) 257 : (2010) 7 SCC 263 Selvi v. State of Karnataka, no sample could be obtained from the defendant No. 1 perforce without his express consent.

12. Mr. P.H Patwalia, learned senior counsel appearing for the plaintiff has contended that no reply to this application was necessary. Consequently learned counsels were orally heard in the matter on this application. Learned senior counsel urges at great length that given the judicial pronouncements of the Supreme Court and the adjudication by this court in the judgment dated 23rd December, 2010, the defendant No. 1 has no option in the matter.

13. Opposing this application, Mr. Patwalia, has further contended that the application is mala fide and an abuse of the process of the court. It is vehemently urged that the order passed by this court has been sustained in appeal and even the Supreme Court has refused stay thereof to the defendant No. 1. It is urged that directions having been made, the defendant No. 1 has no option but to comply with the same unless the direction is modified or stayed by the court. It is urged that the defendant has to be forcibly confined and a sample compulsorily extracted from him.

14. Right at the outset it was pointed out to counsel for the defendant No. 1 that the pleas on which the present application is premised have been heard, considered and rejected by the judgments dated 23rd December, 2010 and 7th February, 2011 and that it was not open for the defendant No. 1 to re-agitate the issues which stand decided.

Mr. Burqi has insisted that he wishes to deal with three pronouncements of the Supreme Court which have not been placed or considered before this court for the purposes of the defendant No. 1's submission that he cannot be compelled to provide a sample for DNA testing.

15. This application therefore raises the question as to whether a person can be physically compelled to give a blood sample for DNA profiling in compliance with a civil court order in a paternity action? If it were held that the same was permissible, how is the court to mould its order and what would be the modalities for drawing the involuntary sample? The justifiability of the refusal has to be tested against the plaintiff's rights which are involved. As a corollary, the impact of the affect of a refusal to comply with the court direction has to be answered. In case an adverse inference was to be drawn, what is the nature of the inference? The role of the court in discovering the truth having made the directions, and the parameters of exercise of jurisdiction by a civil court are also in issue. Whether the judicial pronouncements in (1993) 3 SCC 418 : AIR 1993 SC 2295 Goutam Kundu v. State of West Bengal; (2003) 4 SCC 493 : AIR 2003 SC 3450 Sharda v. Dharmpal; 2001(3) R.C.R (Civil) 587 : (2001) 5 SCC 311 Kanti Devi v. Poshi Ram have been overlooked.

16. First and foremost, it is necessary to deal with the misconceived submissions of learned counsel for the applicant that precedents have been overlooked in on the judgment dated 23rd December, 2010. Mr. Burqi has firstly submitted that this court had failed to consider the judgment of the Supreme Court reported at 1993(2) R.C.R (Criminal) 497 : (1993) 3 SCC 418 : AIR 1993 SC 2295 Goutam Kundu v. State of West Bengal. In this regard, I find that in the order dated 23rd December, 2010 my learned brother S. Ravindra Bhat, J, has observed as follows:—

“6. The plaintiff submits that the Court has power under Section 75(e) of the Code of Civil Procedure (CPC) read with Order-XXVI, Rule-10 (A) to issue a direction for holding a scientific technical or expert investigation. It is argued that the Supreme Court had in Goutam Kundu v. State of West Bengal, 1993(2) R.C.R (Criminal) 497 : (1993) 3 SCC 418 even while sounding a note of caution with regard to a court's approach in deciding such applications, had summarized the legal position in the following manner:—

“26. From the above discussion it emerges:—

(1) that courts in India cannot order blood test as matter of course;

(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) There must be a strong prima facie case in that the husband must establish non access in order to dispel the presumption arising under section 112 of the Evidence Act.

(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis.”

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35. The Court would now examine if a third party (to a marriage, like the first defendant here) may be compelled to undergo scientific tests of the nature of giving blood samples for the purpose of DNA testing. The case of Goutam Kundu (supra) provides us with assistance here. In this case, the Court held that

“1. A matrimonial court has the power to order a person to undergo medical test.

2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.

3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.”

In the order dated 23rd December, 2010, the court has thus extensively relied on the principles laid down in Goutam Kundu (supra) by the Supreme Court.

17. The judgment dated 23rd December, 2010 has also considered the law laid down in Sharda (supra) in the following terms:—

“7. The Plaintiff argues that the correct legal position was, however, restated and clarified by a subsequent larger — 3 Judges Bench ruling reported as Sharda v. Dharmpal, (2003) 4 SCC 493 : AIR 2003 SC 3450. In the said judgment, the Court held as follows:

“39. Goutam Kundu (supra) is, therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It, having regard to the future of the child, has, of course, sounded a note of caution as regard mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child.

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80. The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia, etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouses seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the Petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, and with the extensive interpretation of the phrase “personal liberty” this right has been read into Article 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In matters of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so called right to privacy of the Respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved.

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14. The decision in Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, 2010(4) R.C.R(Civil) 53 : 2010(4) Recent Apex Judgments (R.A.J) 681 : (2010) 8 SCC 633 : AIR 2010 SC 2851 was cited to say that the Court should never as a rule grant applications directing one party or the other to undergo DNA test. In that case, the Supreme Court considered the previous ruling in Sharda's case in the context of a submission that it conflicted with the reasoning in Goutam Kundu's case and held as follows:

“13. In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed. DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under section 112 of the Evidence Act; pros and cons of such order and the test of ‘eminent need’ whether it is not possible for the court to reach the truth without use of such test.

14. There is no conflict in the two decisions of this Court, namely, Goutam Kundu, (1993(2) R.C.R(Criminal) 497 : (1993) 3 SCC 418 : AIR 1993 SC 2295 : 1993 AIR SCW 2325) and Sharda, ((2003) 4 SCC 493 : AIR 2003 SC 3450 : 2003 AIR SCW 1950). In Goutam Kundu, it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and court must carefully examine as to what would be the consequence of ordering the blood test. In the case of Sharda while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA can be given by the court only if a strong prima facie case is made out for such a course. Insofar as the present case is concerned, we have already held that the State Commission has no authority, competence or power to order DNA.”

18. So far as (2001) 5 SCC 311 Kanti Devi v. Poshi Ram is concerned, the Apex Court had considered the scope of section 112 of the Evidence Act and in para 9 observed that it provided an outlet to the party wanting to escape from the rigours of its conclusive ness. It was held that if the party could show that the parties had no access to each other at the time when the child could have been be gotten, the presumption could be rebutted. This pronouncement is part of the consideration in 2010(8) R.C.R(Civil) 2798 : AIR 2009 SC 3115 Shyamd Lal v. Sanjeev Kumar noticed in para 13 of the judgment dated 23rd December, 2010.

The submission of Mr. B.U Burqi, learned counsel for the defendant No. 1 that the principles laid down in the pronouncement Gou-tam Kundu; Sharda v. Dharmpal; Kanti Devi v. Poshi Ram have been overlooked is thus completely without merit.

Reliance on (2010) 7 SCC 263 Selvi v. State of Karnataka

19. Mr. B.U Burqi, learned counsel in support of the application has placed reliance on (2010) 7 SCC 263 Selvi v. State of Karnataka. This judgment does not appear to have been placed before this court while dealing with IA No. 4720/2008 even by the defendant No. 1. Mr. Burqi has placed reliance on the following observations of the Supreme Court in para 264 of the judgment:—

“264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872.”

(Emphasis supplied)

20. So far as a judicial pronouncement is concerned, it is well settled that principle of law laid down by the Supreme Court has to be read in the context of the issues which were before the court. (Ref: 2002(1) R.C.R (Civil) 794 : JT 2002 (1) SC 482, Haryana Financial Corporation v. Jagdamba Oil Mills; (2006) 1 SCC 275, State of Orissa v. Md. Illiyas; (1996) 6 SCC 44, Union of India v. Dhanwanti Devi).

21. The questions which were raised before the Supreme Court in Selvi (supra) are to be found in para 2 and 11 of the judgment and read as follows.

“2. The legal questions in this batch of criminal appeals relate to the involuntary administration of certain scientific techniques, namely narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. However, the present case is not an ordinary dispute between private parties. It raises pertinent questions about the meaning and scope of fundamental rights which are available to all citizens. Therefore, we must examine the implications of permitting the use of the impugned techniques in a variety of settings.

5. The involuntary administration of the impugned techniques prompts questions about the protective scope of the ‘right against selfincrimination’ which finds place in Article 20(3) of our Constitution.”

The questions answered by the court in Selvi set out in para 11 of the pronouncement categorically refer to only the aid “impugned techniques”.

It is therefore apparent that the observations in para 264 relate to the tests which have been set out in para 2 of the judgment reproduced heretofore. Blood testing or DNA profiling were not an issue which was answered in para 264 of the judgment rendered by the Supreme Court in Selvi v. State of Karnataka (supra). The same has thus no bearing on the instant case.

Whether the court order directing a blood sample for DNA profiling can be physically enforced?

22. It is important to note that the entire basis of the submission's of the defendant No. 1 is that the court direction on 23rd December, 2010 to the defendant No. 1 results in violation of his absolute rights under Article 21 of the Constitution.

23. As to what would constitute compulsion, the observations of the Supreme Court in para 17 of the judgment reported at AIR 1961 SC 1808 : 1962(3) SCR 10, State Of Bombay . v. Kathi Kalu Oghad while considering the legality and permissibility of taking of material samples as fingerprints for purposes of comparison and identification on the ground that the same violated the rights under Article 20(3) of the Constitution of India of the person concerned are relevant and read as follows:—

“17. The compulsion in this sense is a physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore, extorted. Hence, the mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not compulsion within the meaning of Article 20(3). Hence, the mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment which, in the circumstances of the case, would lend itself to the inference that compulsion was, in fact, exercised. In other words, it will be a question of fact in each case to be determined by the Court on weighing the facts and circumstances disclosed in the evidence before it. (Emphasis supplied)

24. Given the legal principles laid down by the Supreme Court in Goutam Kundu, Sharda & Selvi (supra) as well as the as detailed discussion on the issue by my learned brother Bhat, J; the judgment of the Division Bench dated 7th February, 2011, there can be no dispute at all, that upon being satisfied with the relevance of the evidence and reliability of the scientific technique in question, the civil court can issue an order to a person directing him to give a bodily sample for DNA profiling. It is well settled that compulsion of law is not even coercion. (Ref: AIR 2004 SC 4716 S.S Sakhar Kharkhana Ltd. v. CIT Kolhapur; AIR 1968 SC 599, Andhra Sugar v. State of Andhra Pradesh)

Such a direction by the court on 23rd December, 2010 on well settled binding legal principles cannot constitute “compulsion” as to violate the constitutional rights of the person concerned (the defendant No. 1 in this case) and is constitutionally and legally permissible.

25. Before this court, learned counsels for the parties however completely missed the important discussion on the permissibility and relevance of the DNA profiling by the Supreme Court in Selvi's case (supra).

26. In this context, even though the issue of intimate testing as blood testing for the purposes of DNA profiling was not specifically before the court in Selvi, however observations on the same have been extensively made in paras 220 and 224, which have a material bearing on the question and read as follows:—

“220. In the present case, written submissions made on behalf of the respondents have tried to liken the compulsory administration of the impugned techniques with the DNA profiling technique. In light of this attempted analogy, we must stress that the DNA profiling technique has been expressly included among the various forms of medical examination in the amended explanation to Sections 53, 53A and 54 of the Cri. P.C It must also be clarified that a ‘DNA profile’ is different from a DNA sample which can be obtained from bodily substances. A DNA profile is a record created on the basis of DNA samples made available to forensic experts. Creating and maintaining DNA profiles of offenders and suspects are useful practices since newly obtained DNA samples can be readily matched with existing profiles that are already in the possession of law-enforcement agencies. The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts.

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224. Moreover, a distinction must be made between the character of restraints placed on the right to privacy. While the ordinary exercise of police powers contemplates restraints of a physical nature such as the extraction of bodily substances and the use of reasonable force for subjecting a person to a medical examination, it is not viable to extend these police powers to the forcible extraction of testimonial responses. In conceptualising the ‘right to privacy’ we must highlight the distinction between privacy in a physical sense and the privacy of one's mental processes.

(Emphasis supplied)

The findings of the Supreme Court in para 264 of Selvi (supra) reproduced above are with regard to violation of the privilege against self in crimination and the right to privacy of a person by subjecting him/her to forcible extraction of testimonial responses which results on the involuntary administration of the narcoanalysis, polygraph examination and the Brain Electrical Activation Profile Test, as distinct from the statutorily permissible “restraints of a physical nature such as the extraction of bodily substances and use of reasonable force for subjecting a person to a medical examination” in exercise of police powers under sections 53, 54 of the Cri. P.C

27. The brief examination of the jurisprudence where compulsory testing or the permissibility of involuntary drawing of samples has been accepted or statutorily permitted which was possible shows that judicial precedents on this area largely arise in cases relating to criminal prosecutions in serious offences including those involving narcotic substances; murder; manslaughter by drunken driving and sexual offences. In each case, the court weighed the interest of justice in the context of public policy while examining the permissibility of compulsory testing.

28. The plaintiff makes a grievance that in the instant case, the determination is necessary as his biological parents were living separately and he has complained of rejection, abuse and neglect by his alleged father the defendant No. 1.

29. The statutory regime so far as medical examinations are concerned, shows that sections 53 and 54 of the Code of Criminal Procedure were amended with effect from 31st December, 2009 to authorize a “registered medical practitioner, acting, at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such all examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose”. The explanation to section 531 clarifies that ‘examination’ of the arrestee includes examination of blood and Wood stains.

(Explanation to section 53 Cri. P.C states broadly that “examination” shall include “examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling.”)

30. On the issue of use of compulsion for drawing blood and urine samples and tissue for DNA testing, the Supreme Court in Selvi has also referred to the jurisprudence from the ECHR2; made reference to 37th and 41st Reports of the Law Commission of India and an article by Emerson G. Spies printed in 38 Australian Law Journal 223, 231 (1964) on this issue.

In Saunders v. United Kingdom, (1997) 23 ECHR 313, the European Court of Human Rights observed that right not to incriminate oneself is concerned with the will of an accused to remain silent. Use of compulsory powers in criminal procedure to obtain materials including blood samples for DNA. testing from the accused, which has an existence independent of the will of the suspect, is not included in the right against selfincrimination (which is concerned with respecting the will of the accused person to remain silent).

The discussion in Selvi clearly suggests that in criminal proceedings, use of material obtained from the accused through use of compulsory powers but which has an existence independent of the person including blood samples can be used for DNA testing which would not violate the privilege against self incrimination and is legally permissible.

In para 169 of the pronouncement in Selvi (supra), the court held that the amendment to Cri. P.C provisions was informed by a rational distinction between examination of physical subsistence and testimonial acts and the statutory provision enables use of “reasonable force” for the purpose.

31. Reference can be usefully made to also the statutory position and the jurisprudence from other jurisdictions where statutory provisions are in place and law on this issue has extensively developed.

32. The taking of blood sample for the purposes of criminal investigation has long been a sanctioned procedure in other jurisdictions. The taking of bodily samples have been opposed in criminal jurisdictions primarily on account of two main reasons, the first being the protection against unreasonable searches and seizures enshrined in Charters of Citizens Rights in several jurisdictions. The second ground of opposition is premised on the common law principle of privilege against self-incrimination. (Ref: Schmerber v. California 384 US 757 (1966) 3; State v. Chase, 2001 ME 68 : 785 A. 2d 702 (Me. 2001) 4; R v. Stillman (1997) 1 S.C.R 6075; R. v. S.A.B, (2003) 2 S.C.R 678 : 2003 SCC 60 : (1987) 33 C.C.C (3d) 1 R. v. Collins)

In Schmerber v. California, taking of blood sample without the consent of the accused was upheld.

Admittedly blood test requires a warrant but Fourth Amendment would not be violated in otherwise cases if police has a probable cause. [State v. Chase]

In R. v. Stillman the majority of the Supreme Court of Canada held that though unauthorised use of a person's body or bodily substances is a “compelled testimony” but if it is demonstrated on a balance of probabilities that the evidence would have been discovered by alternative non-constrictive means its admission will generally not render the trial unfair. Major, J., (consenting) further observed that no consent is anyway required where the evidence is abandoned even when the accused is in custody. McLachlin, J., (dissenting) however held that since no emergency was alleged in this case and the searches were not necessary to protect the immediate safety of the police or public, taking of the bodily samples is outside the scope of lawful search incidental to arrest. However, taking of the tissue abandoned by the accused in the accused had lost privacy interest, was not a search and no consent was required. The right not to incriminate himself was not violated since the privilege did not apply to “real evidence”.

33. In R. v. S.A.B (2003) 2 S.C.R 678 : 2003 SCC 60, the challenge to the constitutionality of the DNA warrant provisions Sections 487.04 to 487.09 of Criminal Code, R.S.C 1985, C-46 was rejected by the Supreme Court of Canada. The court was also called upon to consider the issue of weight to be attached to the evidence of the DNA expert.

In R. v. S.A.B, the Supreme Court of Canada upheld the constitutionality of DNA warrant legislature and discussed the issue of weight to be attached to the evidence of DNA expert.

41. In Selvi (supra), the Supreme Court considered the admissibility of scientific evidence at great length and the responsibility on the court. Reference has been made to the pronouncement of the US Supreme Court in Daubert v. Merrel Dow Pharmaceutical, 125 L Ed 2d 469 : 509 US 579 (1993). In this case the Supreme Court of the USA dealing with testimony of experts, observed that the standard of “general acceptance of the particular field” changed the rules with regard to the admissibility of scientific evidence for several decades. In para 26 of Selvi8, the Supreme Court of India has quoted from the majority opinion in Daubert, the Supreme Court of India has quoted from the majority opinion in Daubert's case, 125 L Ed 2d 469 : 509 US 579 (1993) on the manner in which the trial court should evaluate scientific evidence; the relevance as well as reliability of the scientific technique in question. Trial Judge's first step should be a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid; whether it properly applies to the facts in issue; whether the theory/technique stands tested; stands subjected to peer review and publication; its known or potential error rate; existence and maintenance of standards controlling its operation and; whether it has attracted widespread acceptance within the scientific community. The inquiry has been recommended to be a flexible one with its focus solely on principles and methodology, not on the conclusions which were generated, with the trial judge performing a “gatekeeping” role to decide on the admission of expert testimony based on scientific techniques. These observations have relevance in as much as there is no specific legislation governing DNA profiling or guiding a civil court on its permissibility, evaluation, application or methodology.

It is this legislative vacuum which has enabled learned senior counsel for the plaintiff to contend that in exercise of inherent power, this court must confine the defendant No. 1 to furnish a blood sample for DNA profiling.

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45. The Supreme Court of United States in the case titled Breithaupt v. Abram, 352 U.S 432 (1957) had occasion to consider the constitutionality of a blood sample of the petitioner who was driving a pickup truck which was involved in a collision with a passenger car and was as a result injured. In hospital, the smell of liquor has been detected on his breath and a blood sample was drawn by the attending physician while he was lying unconscious in the emergency room. The petitioner had challenged the legality of his conviction and the constitutionality of the blood test.

The court distinguished the case from the previous judgment rendered in Rochin v. California, 342 U.S 165 (1952) when the state officers forced open the mouth of the petitioner after a considerable struggle in an unsuccessful attempt to retrieve what had been placed by the petitioner in his mouth. Later, a stomach pump was forcibly used to extract from his stomach what were found to be narcotic pills. The conviction in Rochin based on this search and seizure was set aside because such conduct “shocked the conscience” and was so “brutal” and “offensive”, that it did not comport with traditional ideas of fair play and decency.

The majority opinion in Breithaupt held that there was nothing “brutal” or “offensive” in the taking of a sample of blood when done as in this case under the protective eye of a physician; the absence of conscious consent without more, does not necessarily render the taking of the sample as a violation of a constitutional right.

46. In the dissenting opinion, (in Breithaupt v. Abram) Chief Justice Warren rejected the legality of the involuntary testing. It was observed thus:—

“In reaching its conclusion that in this case, unlike Rochin, there is nothing “brutal” or “offensive” the Court has not kept separate the component parts of the problem. Essentially there are two: the character of the invasion of the body and the expression of the victim's will; the latter may be manifested by physical resistance. Of course, one may consent to having his blood extracted or his stomach pumped and thereby waive any due process objection. In that limited sense the expression of the will is significant. But where there is no affirmative consent, I cannot see that it should make any difference whether one states unequivocally that he objects or resorts to physical violence in protest or is in such condition that he is unable to protest. The Court, however, states that “the absence of conscious consent, without more, does not necessarily render the taking a violation of constitutional right.” This implies that a different result might follow if petitioner had been conscious and had voiced his objection. I reject the distinction.

Since there clearly was no consent to the blood test, it is the nature of the invasion of the body that should be determinative of the due process question here presented. The Court's opinion suggests that an invasion is “brutal” or “offensive” only if the police use force to overcome a suspect's resistance. By its recital of the facts in Rochin-the references to a “considerable struggle” and the fact that the stomach pump was “forcibly used” — the Court finds Rochin distinguishable from this case. I cannot accept an analysis that would make physical resistance by a prisoner a prerequisite to the existence of his constitutional rights.

Apart from the irrelevant factor of physical resistance, the techniques used in this case and in Rochin are comparable. In each the operation was performed by a doctor in a hospital. In each there was an extraction of body fluids. Neither operation normally causes any lasting ill effects. The Court denominates a blood test as a scientific method for detecting crime and cites the frequency of such tests in our everyday life. The stomach pump too is a common and accepted way of making tests and relieving distress. But it does not follow from the fact that a technique is a product of science or is in common, consensual use for other purposes that it can be used to extract evidence from a criminal defendant without his consent. Would the taking of spinai fluid from an unconscious person be condoned because such tests are commonly made and might be used as a scientific aid to law enforcement? Only personal reaction to the stomach pump and the blood test can distinguish them. To base the restriction which the Due Process Clause imposes on state criminal procedures upon such reactions is to build on shifting sands. We should, in my opinion, hold that due process means at least that law-enforcement officers in their efforts to obtain evidence from persons suspected of crime must stop short of bruising the body, breaking skin, puncturing tissue or extracting body fluids, whether they contemplate doing it by force or by stealth.”

(Emphasis supplied)

47. In the other dissenting opinion (in Breithaupt v. Abram) rendered by Justice Douglas and Justice Black, it was observed thus:

“The court seems to sanction in the name of law enforcement the assault made by the police on this unconscious man……

And if the decencies of a civilized state are the test, it is repulsive to me for the police to insert needles into an unconscious person in order to get the evidence necessary to convict him, whether they find the person unconscious, give him a pill which puts him to sleep, or use force to subdue him. The indignity to the individual is the same in one case as in the other, for in each is his body invaded and assaulted by the police who are supposed to be the citizen's protector.”

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106. Dr. A.K Sharma from the Central Forensic Science Laboratory, Directorate of Forensic Science, Ministry of Home Affairs, Government of India, 30 Gora Chand Road, Park Circus Kolkata in an article titled “DNA Profiling, Social, Legal Or Biological Parentage” published in the Indian Journal of Human Genetics (September-December, 2007, Vol. 13, Issue 3) has written that the analysis in DNA profiling is based on a comparison of the results of biological evidence with reference samples (blood or oral swab). Dr. Sharma writes that “Indirect references of close blood relatives of the person to be identified are usually desired for establishing identity. A DNA profile for a multiplex of 15 autosomal short tandem repeat (STR) markers is generated and obligatory alleles are compared with that of parents, siblings, or close relatives for kinship analysis. An inconsistency at two or more loci (considering the mutation rate of STRS) generally leads to exclusion in a kinship case. Inclusion at all loci is statistically evaluated by calculating paternity, maternity, or sibship indices. The success of a DNA case not only depends on the authenticity of the reference samples but also on the authenticity of the biological relationship of the donors with the person in question, without which any comparison is futile”.

107. Dr. Sharma emphasises that the authenticity of the reference sample is essential for an accurate result. He concludes with the following caution:—

“DNA profiling is the most effective tool for justice in criminal and civil cases. The above-mentioned exceptional situations are rare, but it is important that investigating officers, forensic analysts, and members of the judiciary be aware of the necessity of obtaining authentic biological (genetic) samples and of the problems that may be encountered.”

108. So far as the scientific accuracy of DNA testing is concerned, the same has been explained by Ilene Sherwyn Cooper in ‘Advances in DNA Techniques Present Opportunity to Amend EPTL to Permit Paternity Testing’, N.Y.S.T.B.J July-August 1999 at 34, 41 (1999) in the following terms:—

“For paternity applications, the odds that two unrelated people possess the same DNA band pattern have been calculated to be, on average, 30 billion to one. Given that the Earth's population is about 5 billion (only 2.5 billion males), it is impossible to be more sure of a paternity determination with any other available test.”

This scientific test has a 99.99% chance of correct conclusions and is perceived as an objective scientific test which may be difficult for an individual to refute. Refusal therefore to give a blood sample for DNA profiling is not seen as legitimate. 109. In an article titled “The Gene Age — A Legal Perspective” by Justice R.K Abichandani of the High Court of Gujarat presented in the Conference on “Impact of New Biology on Justice Delivery System: Issues Relating to DNA Finger Printing, Intellectual Property Rights and Ethical, Legal, Social Implications” held by the Centre for DNDA Fingerprinting and Diagnostics, Hyderabad and NALSAR University of Law, Hyderabad between 3rd to 5th October, 2003, after detailed analysis on DNA parentage testing my learned brother has observed as follows:—

“[13.1] Parentage testing refers to testing done to confirm or deny biological parentage of a particular child or individual. Such testing may be conducted by blood group or DNA analysis. DNA parentage testing may exclude a person as the biological parent of a child with certainty but it cannot prove absolutely that a person is the child's biological parent. The test result can, however, provide a probability that a person is the biological parent of a child and, if that probability is sufficiently high, an inference of parentage may be confidently drawn. (See ALRC Discussion Paper 66-Protection of Human Genetic Information — DNA Parentage Testing).

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[13.3] DNA parentage testing may be used to rebut a presumption arising under the Act or to establish evidence in the circumstances where no presumption arises. A man might seek DNA parentage testing in order to obtain evidence of non-paternity for the purpose of civil proceedings against the child's mother to prove ‘paternity fraud’ and claim damages for emotional stress and financial loss that he suffered due to such fraud DNA parentage testing may provide evidence to show that a person has a biological connection with a deceased person and can be a proof in support of a succession claim in mass disasters, such as, aeroplane crashes and the World Trade Centre collapse, DNA parentage and relationship testing is increasingly used in identifying human remains where the body of the deceased is no longer recognizable.”

110. In the judgment of the Madras High Court reported at 2009 (1) R.C.R (Civil) 932 : AIR 2009 Madras 64, Veeran v. Veerav ??? on the issue of the accuracy and the nature of the DNA test, the court here as follows:—

“14. The Eastern Biotech & Life Science Company in UAE which is offering DNA Test in Kuwait, Jordan, Lebanon, Bahrain Qatar, Oman, Saudi and Syria speaks about the paternity test, wherein it is stated as follows: “Paternity testing requires a painless sample from both the child and possible further. Even without a sample from the mother, D.N.A paternity test results are up to 99.9999% accurate-that's one-in a million odds your results are incorrect.”

15. The above analysis clearly shows that if the mother is not available, from the sample collected from the child and the alleged farther, the paternity test can be conducted Thus, if D.N.A test is performed without the mother's sample, it requires additional analysis and it will take a few days longer to complete the same. However, the accuracy of the results will not be affected.

16. The above discussions make it??? that it is not always necessary to??? D.N.A test on both the alleged father and mother and the D.N.A test performed on the father will also show whether a particular child was born to the person on whom such test has been performed. While so, the argument advanced on the side of the petitioner that without conducting D.N.A test on the second respondent, the alleged mother of the first respondent, there will be no useful purpose, by directing the petitioner alone to subject himself for D.N.A test, is totally erroneous. In the fast technology development in scientific field, it is nothing wrong to directing a person to undergo D.N.A test, which will enable the Court to arrive at a proper conclusion. Furthermore, the petitioner, who asserts that he had no relationship with the second respondent and the first respondent was not born to him, to prove his assertion, can very well subject himself for the said test to prove his case beyond reasonable doubt. In fact, the test result will amply prove his case also.”

(Emphasis supplied)

111. Reliability of the scientific evidence depends upon three factors; the validity of the underlying scientific principle; the validity of the technique applying the principle; and the proper application of the technique on a particular occasion. Each individual has an entirely unique genetic signature (except in the case of identical twins) derived from DNA configuration.

112. DNA profiling has been statutorily recognized in the Code of Criminal Procedure and the aforenoticed judicial precedents as reliable scientific evidence.

113. Value is attached to genetic finger printing and DNA profiling as it would be difficult for the suspect or the person being tested to harder to fabricate with the evidence. It is therefore difficult to undermine the value of the test.

114. DNA fingerprinting has thus established high specificity, has extraordinary probative properties and is statutorily recognised. DNA samples can be obtained from blood; tissue; pulled head hair samples with intact roots; fingernail clippings; bone marrow; tooth pulp; dried blood stains and biopsy samples. Genetic fingerprinting falls out-side the privilege against selfincrimination and is within the parameters of reasonable search and seizures provided there exists the element of cooperation as required for the purposes of taking, say, a blood or a semen sample.

115. The above narration adequately establishes the unimpeachable importance and value attached to the affirmative nature of the results of DNA profiling in a case where parentage is in issue. The refusal of the defendant No. 1 to furnish the sample and its consequence have to be tested against these standards.

116. An issue of paternity may be established in three ways. Firstly, in accordance with the marital presumption rule (section 112 of the Evidence Act); (or,) recognition of the paternity by the party; or, lastly by a judicial determination of paternity. The instant case is of the third kind.

117. From the above discussion, it is manifest that there is no difficulty if the person consents to the taking of intimate bodily samples. If the specimen had been obtained and the results indicate that the alleged father is the father of the child, a presumption of paternity is created. Such presumption can be rebutted only by clear and convincing evidence that the results of the genetic test are not reliable in that particular case. Difficulty arises if the taking of the sample is refused. The same may be for genuine or good causes or without.

118. In the case before the Family Division of England reported at 1988 (22) All ER 500, McVeigh v. Beattie, the appellant had resisted the application for blood test on which nevertheless directions for the test were made. The appellant subsequently indicated that he was not willing to submit himself to blood tests if there was a further application for a blood test direction. As the appellant did not submit to the blood test when further direction was made, the trial judges drew the inference that the appellant failed to comply with the blood test directions because he had sexual intercourse with the respondent and he knew that the blood test would show that he was probably the father of the respondent's child. Wood, J considered the question as “Was the appellant's failure or refusal to comply with the blood test direction evidence which was ‘other evidence’, i.e, capable of construing corroboration of the complainant's case that it was the appellant who was the father of her child or, to use the words of Sellers LJ in Simpson v. Collinson, (1964) 1 All ER 262 at p. 267, was it evidence that shows or tends to show the story is true.” It was stated by Wood, J. that it has been held that a report of a blood test relating to the party could constitute corroborative evidence.

119. In the context of refusal, by an adult party to submit to a blood test, the observations of Lord Denning MR. in the judgment reported at 1968 (1) All ER 20 entitled Re L at 26 (1969) p. 119 at 159 shed valuable light and deserve to be considered in extenso:—

“Both counsel for the husband and counsel for the wife felt bound to concede that, under these sections, the Court could not order an adult to submit to a blood test. A blood test which involves the insertion of a needle is an assault, unless consented to. It would need express statutory authority to require an adult to submit to it. ((1963) 2 All ER 841 (1964) P. 67). If these sections do not authorise the court to order an adult to have his blood tested, I do not see that they authorise the court to make such an order in the case of an infant. A test of the child's blood would be useless unless there were tests of the adults also. But, I would say this. If an adult unreasonably refuses to have a blood test, or to allow a child to have one, I think that it is open to the court in any civil proceedings (no matter whether it be a paternity issue or an affiliation summons, or a custody proceeding) to treat his refusal as evidence against him, and may draw an inference therefrom adverse to him. This is simply common sense. It is in keeping with the rule that in a nullity case, if a party refuses to be medically examined, the court may infer that some impediment exists pointing to incapacity (see W. v. W. (otherwise L.) (1912) P. 78). Moreover, being a rule of evidence, it applies not only to the High Court but also in the magistrates' court, and to any court of the land.”

(Emphasis supplied)

120. In the context of criminal law, the refusal by a person without reasonable excuse to supply a sample for scientific examination arose for consideration before the Rajasthan High Court in the judgment reported at 1991 Cri.L.J 939, Miss. Swati Lodha v. State of Rajasthan. The court was concerned with the refusal to submit to a blood test by a person accused of the offence of rape in which a child had been born to the victim. In para 16 of the pronouncement, the court considered the value to be attached to the test also and held as follows:—

“16. A review of the above law, would go to show the following propositions are well-settled:—

(1) Report of a blood-test is capable of amounting to corroboration of the statement of the complainant. It amounts to corroboration even under the common law. The nature of the corroboration would necessarily vary according to the particular circumstances of the offence charged. The test applicable to determine the nature and extent of the corroboration is the same whether the case falls within the rule of common law or within that class of offences for which corroboration is required by statute. A Criminal Court can make a direction for a blood-test to be taken by taking blood-sample of the complainant, accused and of the child. In certain cases, where it is contrary to the interest of a minor, the Court may not make a blood-test direction.

(2) The Court cannot order an adult to submit to blood-test. A blood-test which involves insertion of a needle in the veins of a person, is an assault, unless consented to. It would need express statutory authority to require an adult to submit to it. This is based on the fundamental that human body is inviolable and no one can prick it.

(3) Where a Court makes a direction for a blood-test, and the accused fails or refuses to comply with the blood-test direction, the Court can in the circumstances of the case, use the refusal or failure of the accused to submit to blood test as a corroborative evidence against him. If a party refuses to submit to blood-test, the Court may infer that some impediment existed which pointed out towards the implication of the accused.”

(Emphasis supplied)

121. On the issue of paternity, it thus requires to be considered whether the refusal to supply a sample for scientific examination is with out reasonable excuse which is capable of amounting to corroboration of the evidence of the plaintiff to establish that the defendant No. 1 was his father or not. In this regard, in 1991 Cri. L.J 939 (1) Swati Lodha v. State of Rajasthan on the issue of what is “corroborative evidence” placing reliance on Mash v. Darky, (1914) 3 KB 1226, the Rajasthan High Court observed as follows:—

“12. The question, what is corroborative evidence, came up for consideration in Mash v. Darley, (1914) 3 KB 1226. Dealing with the question, Buckley L.J observed at page 1231 of the report as follows:—

“Corroborative evidence, I conceive, may be found either in admissions by the man or inferences properly drawn from the conduct of the man.

(13) Thus, within the criminal law, a refusal without reasonable excuse to supply a sample for scientific examination has been capable of amounting to corroboration.”

122. In Swati Lodha (supra), the court noticed that the following questions were framed by learned Judges of the Family Division in England:—

““What is the argument against such inference being capable of such corroboration. It is said that a refusal points to no conclusion,” because a blood test does not, prove anything; it may exclude, but, if it does not, then it will only place the respondent within a bracket of men, usually expressed as a percentage, who could have been the father. To this it can be said that a forensic test is not necessarily conclusive one way or the other, and the question might be asked, why not take any steps which could in effect exclude. What has the respondent to fear or to hide I am satisfied that the answer to this question is in the affirmative. If it were to be in the negative, then in my judgment the effect of Section 23 would be severely eroded, if not totally negated. No one would comply with a blood test direction and would be so with impunity.”

123. On the consequences of refusal, a Division of Bench of the Orissa High Court in the judgment reported at 2005(1) R.C.R(Criminal) 346 : 2004 Cri. L.J 4003 Thogorani alias K. Damayanti v. State of Orissa placed reliance on Sharda (supra) and in para 18 held that it is, therefore, inevitable to hold that in the event of the refusal of the opposite party No. 3 to give his blood sample for conducting DNA test, an adverse inference can be drawn by the trial court.

124. In this regard, in para 7 of the judgment in 1972 Cr. L.L.J 1392, Sulahai v. Jagannuth the court held that in case where a person refuses to be subjected to medical examination by adopting obdurate attitude, an adverse inference can be drawn under Section 114 of the Indian Evidence Act observing as follows:—

“……7 Section 144 of the Indian Evidence Act provides for the presumption by the Court regarding existence of facts. Illustration (g) to that section is to the effect that the Court may presume that evidence which could be. and is not produced would, if produced, be unfavourable to the person who withholds it. If, therefore, in a case it is shown that a person wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved can be raised against him or her. This section, amongst other things, therefore, enables the Court to draw an adverse inference against a party who refuses to produce a document in his possession. Similarly, it enables the Court to draw a presumption against a person who can make evidence available to the Court but obstructs the availability of such evidence. If, therefore, a person in a case refuses to submit to a medical examination where the whole case depends on the state of his or her mind and body, I think that it would be open to the Court to draw an adverse inference or presumption against such a person. Such a person would be on a par with a party who wrongfully withholds evidence in his possession. In Ranganathan Chettiar v. Lakshmi Achi, AIR 1955 Mad 546, it was held, that it was not open to a Court to invoke Section 151 of the Code of Civil Procedure for ordering a medical examination of a party against the consent of such party. The High Court observed that the Court might draw any adverse inference against a party who refuses to examine himself or herself. In Bipinchandra v. Madhuriben, cited above, the Gujarat High Court has also held that the fact that a party with ulterior motives adopts an obdurate and relentless attitude, cannot and does not render the Court helpless to counteract it. Where a party refuses to submit to a medical examination in a case where the whole case depends on the state of his mind and body, it will be open to the Court to draw an adverse inference or presumption against the recalcitrant party. Of course, the adverse inference that may be drawn by any Court is from the circumstances in each case and having regard to the refusal to let the best evidence being brought before the Court. In the present case if the circumstances permit, the learned Magistrate would be justified to draw an unfavourable inference against the petitioner.”

(Emphasis supplied)

125. So far as the consequences of refusal to submit to a blood test are concerned, in Goutam Kundu (supra) the petitioner disputed the paternity of the child as a defence to the wife and child's maintenance petition under section 125 Cri. P.C and, had prayed for the blood group test of the child to prove this fact. One of the circumstances which had weighed with the court was the lack of consent to the blood test by the respondents. The Supreme Court held that there was no illegality in refusing the blood test for the reason that no consent has been given by any of the respondents. In this regard, the Supreme Court observed as follows:—

“The maximum that can be done where a party refuses to have a blood test is to draw an adverse inference (see in this connection Subayya Gounder v. Bhoppala, AIR 1959 Mad 396) and the earlier decision of the same court in Venkateshwarlu v. Subbayya, AIR 1951 Mad 910 (1). Such an adverse inference which has only a very little relevance here will not advance the appellant's case to any extent. He has to prove that he had no opportunity to have any sexual intercourse with the 1st respondent at a time when these children could have been begotton. That is the only proof that is permitted under Section 112 to dislodge the conclusive presumption enjoined by the Section.”

126. After a detailed consideration of judicial precedents from India and foreign jurisdictions in para 84 of Sharda v. Dharmpal (supra), the Supreme Court held as follows:—

“84. If despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out Section 114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidences in his power an possession.”……”

20. An LPA was filed against the above cited decision of the Delhi High Court. It came to be decided on 27.04.2012 under the title Rohit Shekhar v. Narayan Dutt Tiwari, 2012(2) RCR (Crl.) 889. The High Court modified the judgment and decision of the Single Judge and went a step ahead holding that a person can be physically compelled to undergo DNA test. Parties seeking direction for DNA test cannot be asked to satisfy itself merely with the fact that if such person refuses to undergo the test, adverse inference will be drawn against him. The High Court observed:—

“The valuable right of the appellant under the said direction cannot be taken away by asking the appellant to be satisfied with comparatively week adverse inference.”

21. I have considered the rival contentions of the parties in the light of above. In the present scenario, extensive use of biological evidence is made in crime investigations and court proceedings. DNA evidence has assumed great significance and legal recognition. In fact, DNA Profiling Bill, 2007 is pending before the Parliament. The fact that such a bill has been introduced, itself shows the need and importance of DNA evidence. Scientific investigations are the need of the hour and must be carried out. DNA test is a scientific test and its accuracy is 99.99% and as such this must be used as evidence in sexual assault and violent crime cases. In this case, it is alleged by the petitioner that the girl child is born as a result of the illicit relationship of the petitioner and respondent No. 3 for many years and, therefore, to verify this fact, scientific test is must. The continuous illicit relationship of petitioner with respondent No. 3 for more than 12 years is sufficient to raise the presumption against respondent No. 3 that the child was born out of the illicit relationship, specifically when he has not even dared to file reply to rebut the averments in the petition. The quest of the petitioner for justice and determined fight against crime requires use of new and innovative advancements in investigation. Section 5 to 9 of the Evidence Act relate to relevancy of facts and the outcome of DNA test can certainly be treated as relevant evidence according to these provisions. It is settled principle of law that all relevant evidence is admissible as per provision of Indian Evidence Act. Outcome of DNA test in addition be governed by provisions relating to Expert Evidence. Section 45 of the Evidence Act governs the expert opinion and court's power to form an opinion upon that report of that person is specifically skilled in such science. S. 46 refers to the facts having bearing upon the expert opinion S. 51 refers to grounds when opinion becomes relevant. Opinion of the expert is subject to limitations on the admissibility of scientific evidence. The court will see that expert testimony reasoning or method is scientifically valid and is relevant to the issue. Admissibility would depend on factors such as (1) whether the theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the techniques operation; and (5) whether the theory or technique is generally accepted in the scientific community.

ADMISSIBILITY OF DNA ANALYSIS AS EVIDENCE:

22. In assessing the probative value of DNA evidence, court would consider, among other things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. There is no longer any question on the validity of the use of DNA analysis as evidence. The Courts are now moving from the issue of according “official recognition” to DNA analysis as evidence to the issue of observance of procedures in conducting DNA analysis. Thus physical evidence, corroborated by circumstantial evidence and DNA test results would prove if respondent No. 3 is the father of the child or not.

23. DNA evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded by statute or the High court Rules and orders. Evidence is relevant when it has such a relation to the fact in issue as to induce belief in its existence or non-existence. Section 45 which governs the admissibility of expert testimony, provides that the opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess can be received in evidence. The section does not pose any legal obstacle to the admissibility of DNA analysis as an evidence. DNA analysis is admissible as evidence even on collateral matters when it tends in any reasonable degree to establish the probability or improbability of the fact in issue as per provisions of the Evidence Act.

RIGHT AGAINST SELF-INCRIMINATION:

24. Article 20 of the Constitution provides that “no person shall be compelled to be a witness against himself.” Respondent's contention that obtaining samples from him for DNA testing violates his right against self-incrimination. However, Madras High Court in Shankar @ Palanisamy v. State by Inspector of Police, [MANU/TN/1736/2009] has categorically stated that subjecting the accused to DNA test does not violate Article 20(3) of the Constitution.

25. In P.V Valsan s/o Kantian Nambiar v. Station House Officer [Cri Misc. No. 1629/2008, decided on 16.6.2008), the Kerala High Court has observed, “the right of police to draw the samples from an accused person for the purpose of DNA profiling is accepted by law. There is no question of any infringement of the right of privacy or right against selfincrimination. It is by now trite that in course of investigation, the DNA test can be conducted.” The privilege of Article 20(3) is applicable only to testimonial evidence. Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity and sexual exploitation case, contrary to the belief of respondent in this action, will not violate his right against self-incrimination. This privilege applies only to evidence i.e, testimony in essence taken under duress. The Courts have ruled that the right against self-incrimination is just a prohibition on the use of physical or moral compulsion to extort testimonial evidence from a respondent, not an exclusion of evidence taken from his body when it may be material and thus, the court can compel a person male or female to submit for DNA test since the gist of the privilege is the restriction on testimonial compulsion. Moreover, after incorporation of Section 53-A in Cri. P.C DNA test of accused is must in cases of rape. The observation to this effect has been made by the Supreme Court in Krishan Kumar Malik v. State Of Haryana, (2011) 7 SCC 130 in following words:—

“Now after the incorporation of Section 53-A in Criminal Procedure Code with effect from 23.06.2006, it has become necessary for the prosecution to go in for DNA test in such type of cases facilitating the prosecution to prove its case against the accused.”

RIGHT TO LIFE: ARTICLE 21

26. Besides Article 20(3), the DNA test has also been challenged on grounds of violation of Article 21 of the Constitution in as much it restrains personal liberty and encroaches upon right to privacy which has been recognized as fundamental right within the ambit of Article 21. However, in light of the views of Supreme Court in Selvi v. State of Karnataka (supra) and judgment of Delhi High Court in Rohit Shekhar's case (supra), it is clear that in paternity disputes, DNA test can be directed. In Veeran v. Veera Varmalle, 2009(1) R.C.R(Civil) 932 : AIR 2009 Madras 64, the father was directed to undergo DNA test and it was observed that it cannot be said to be affecting his fundamental right and is not violative of his right to personal liberty enshrined under Article 21 of the Constitution. However, the Supreme Court has observed in Bhabani Prasad Jena etc. v. Convener Secretary Orissa State Commission for Women, 2010(4) R.C.R(Civil) 53 : 2010(4) R.A.J 681 : (2010) 8 SCC 633 that “when there is apparent conflict between right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the Courts must exercise its discretion only after balancing the interest of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed.”

27. Here however, a prima facie case exists as petitioner declares that she had sexual relations with the respondent no 3 biological father. The corroborative proof is required to carry the bur den forward and shift it to the biological father.

CONCLUSION: In light of the above, I am of the view that once the allegations are made and same are not denied by the respondent by filing appropriate reply, then presumption can be drawn adverse to respondent's interest at this stage as investigation in this regard is a necessity. Respondent No. 3 had not filed his reply/counterclaim denying to be the biological father of child of the petitioner and denying physical contact with petitioner mother. Since the process for DNA testing had an accuracy rate of 99.99% in establishing paternity, it is the need of the hour that the police should follow scientific investigation including DNA testing, especially in the cases involving crime against women. Respondent No. 3 is, thus, directed to submit to deoxyribonucleic acid (“DNA”) testing. The petitioner, the child, and respondent No. 3 are directed to undergo DNA paternity testing in a laboratory within a period of thirty (30) days from receipt of the Order, and to submit the results thereof within a period of ninety (90) days from completion. If the respondent No. 3 does not submit to the said test, force can be used. The respondent No. 2, after completion of investigation, shall proceed in accordance with law. The petition is allowed accordingly.

28. Petition allowed.

Crl. Misc. No. M-31938 of 2011 (O&M)

Harjinder Kaur v. State Of Punjab And Others

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent No. 3's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Harjinder Kaur v. State Of Punjab And Others

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