- Bookmark
- Share
- CaseIQ
Narender G. Goel v. State Of Maharashtra And Another
Factual and Procedural Background
Dr. Asha Goel, a Canadian citizen of Indian origin, was found murdered in Mumbai. During the investigation, blood-stained clothes of Accused No. 1 and other materials were seized. Her husband, Dr. Sadankumar Goel, filed Criminal Writ Petition No. 1930 of 2006 before the Bombay High Court seeking directions under Section 166-A of the Code of Criminal Procedure, 1973 to send the seized articles to Canada for mitochondrial DNA analysis, a facility not then available in Indian laboratories.
The investigating agency concurred that such testing facilities were unavailable at the Forensic Science Laboratories in Kalina and Kolkata and expressed no objection to assistance from Canada. A Division Bench of the High Court directed the agency to have the exhibits tested in Canada and allowed the trial court to await the report under Section 173(8) CrPC.
Two accused persons—Narender Goel and Pawankumar Satyanarayan Goenka—who were not parties before the High Court, challenged that order in the Supreme Court through Special Leave Petitions (Crl.) Nos. 1880 and 3206 of 2007. The present judgment disposes of their criminal appeals.
Legal Issues Presented
- Whether the High Court’s direction to send material evidence abroad for mitochondrial DNA testing complied with the procedural requirements of Section 166-A CrPC, in the absence of (a) an application by the prosecution before the trial court and (b) a formal letter of request issued by that court to the foreign authority.
- Whether accused persons are entitled to be heard at the investigation stage before courts issue directions that may affect the collection of evidence.
- Whether the impugned order amounts to “creating” new evidence rather than “collecting” existing evidence outside India.
Arguments of the Parties
Appellants' Arguments
- The High Court ignored the mandatory safeguards built into Section 166-A CrPC. Evidence located abroad can be collected only when:
- An application is made by the prosecution to the competent court seized of the case (here, the Court of Session at Sewree).
- The application seeks collection, not creation, of evidence.
- Upon permission, the court issues a formal letter of request to the foreign court or authority.
- No such prosecution application or judicial letter of request exists; the writ jurisdiction was invoked to bypass the trial court and exclude the accused from participation.
- The impugned order authorises removal of crucial exhibits from Mumbai to Canada without statutory sanction; the Ontario laboratory is not an “authority” within Article 12 of the Constitution.
- Mitochondrial DNA testing could be done in Kolkata; therefore, recourse to Canada is unnecessary.
Respondent 2’s (Husband/Writ Petitioner) and State’s Arguments
- The accused seek to prevent detection of evidence that may establish their involvement.
- Both the State Government and the investigating officer have acknowledged in affidavits that mitochondrial DNA testing facilities are unavailable in India.
- Testing of old or washed clothing requires specialised facilities; Canadian authorities have preserved the deceased’s genetic material and are willing to assist.
- It is settled law that an accused has no right to be heard at the investigation stage; their opportunity to challenge evidence arises at trial.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P., (1999) 5 SCC 740 | An accused has no right to be heard before a court directs further investigation under Section 173(8) CrPC. | Used to reject the appellants’ contention that they were entitled to a hearing before the High Court issued directions affecting the investigation. |
Court's Reasoning and Analysis
The Supreme Court noted that:
- The victim was a Canadian citizen and Canadian authorities had already performed a second autopsy and preserved genetic material.
- The investigating officer’s affidavit confirmed Indian laboratories lacked mitochondrial DNA capability and supported foreign testing.
- Under the precedent cited, the accused are not entitled to participate at the investigation stage; their remedies lie at trial, where they can challenge the authenticity and admissibility of any forensic report.
- Questions about the evidentiary value of the Canadian analysis can be examined during trial proceedings.
Given these factors, the Court found no reason to interfere with the High Court’s directive. It emphasised that admissibility and probative value are matters for the trial court.
Holding and Implications
DISMISSED – Both criminal appeals were rejected, and the High Court’s order stands.
Consequences: the investigating agency is free to send the seized materials to Canada for mitochondrial DNA analysis, and the trial court may consider the resulting report under Section 173(8) CrPC. The judgment reaffirms the principle that accused persons are not entitled to a pre-trial hearing on investigative directions and leaves broader procedural issues under Section 166-A unchanged.
Dr. Arijit Pasayat, J.— Leave granted in both the special leave petitions. The challenge in these appeals is to the judgment of a Division Bench of the Bombay High Court. The appeal relating to Special Leave Petition (Crl.) No. 1880 of 2007 has been filed by Narender Goel who was not a party before the High Court while the criminal appeal relating to SLP (Crl.) No. 3206 of 2007 has been filed by Pawankumar Satyanarayan Goenka who was also not a party before the High Court. Dr. Sadankumar Goel, the petitioner in Criminal Writ Petition No. 1930 of 2006 is the husband of Dr. Asha Goel (hereinafter referred to as “the deceased”) who was found murdered.
2. The said Dr. Sadankumar Goel filed Criminal Writ Petition No. 1930 of 2006 with the prayer that Respondents 1 to 7 in the writ petition should be directed to take appropriate steps under Section 166-A of the Code of Criminal Procedure, 1973 (in short “the Code”) in CPNA No. 6 of 2004 registered at DCB, CID, Unit II, Malabar Hill Police Station, CR No. 93 of 2003, insofar as the forensic investigation is concerned and to approach the Government of Canada for seeking assistance from appropriate agencies of the said Government to investigate the offences insofar as they relate to DNA testing of the articles recovered from the accused Pawankumar Satyanarayan Goenka the appellant in the appeal relatable to Special Leave Petition (Crl.) No. 3206 of 2007 and Pradeep Parab during the investigation and of the materials recovered from the Santro car seized during investigation along with all other materials collected in the course of investigation relevant for the purpose of such forensic and medical examination to Canada as there is no such facility available in India.
3. Stand of Dr. Sadankumar was that for want of proper medical and forensic investigation, material evidence would be lost to the prosecutor and therefore at his request, office of the Chief Coroner of the Province of Ontario has written a letter to the Commissioner of Police, Crawford Market, Mumbai that they are ready to assist the investigating team in their desired area and the office of the Chief Coroner for Ontario has performed a second autopsy of the deceased at the family's request, and they have preserved genetic material of the deceased which can be used to make a genetic comparison to any samples that the investigating agencies in India wish to have tested.
4. The High Court after hearing noted that the reply reflects the concern on the part of the office of the Chief Coroner for Ontario; the deceased was a Canadian citizen and a resident of Ontario. The High Court called upon the investigating agency to file their short reply.
5. In the reply filed the investigating agency accepted that the facility for mitochondrial DNA analysis is not available in the Forensic Science Laboratory either in Kalina or at Kolkata and if it is the writ petitioner's belief that carrying out such an analysis on the material seized by the police during the course of investigation would bring to light with unerring certainty the culpability of the accused concerned, it will not only aid the investigation but also there cannot be any question of objection to the helping hand offered by the writ petitioner to the investigating agency.
6. The Court after considering the various submissions directed the investigating agency to get the material collected in the course of investigation examined in Canada. It is noted that it will take some time and therefore the trial court would wait for such a report which will be part of the medical and forensic investigation which can be filed in the trial court under Section 173(8) of the Code.
7. The basic stand of the appellants is that the High Court has not kept in view the parameters of Section 166-A of the Code. It is submitted that some evidence which is already in existence but in a country outside India can be collected. But for that purpose
(1) an application is required to be made by the prosecution before the competent court of law i.e the court which is seized of the matter;
(2) the application shall be for collecting the evidence and not for creating the evidence; and
(3) on such application being allowed, an appropriate request by way of letter of authority from the competent court of law to the court of law or authority concerned where such evidence is available has to be made.
8. It is the stand of the appellants that in the instant case neither has the application been made by the prosecution nor had any letter of request been issued by the competent court of law. Though the Court of Session at Sewree in Mumbai is seized of the matter, by avoiding the said court and by invoking writ jurisdiction of the Bombay High Court, consent order has been obtained between the family members of the deceased and the prosecution is keeping the accused persons completely away from the proceedings though their rights are directly affected.
9. It is submitted that by the impugned order the investigating officer has been authorised to remove important piece of evidence from Bombay, take the same directly from the office of the Chief Coroner of Ontario Laboratory for mitochondrial DNA test. There is no letter of request from the competent court to the court or authority concerned. The laboratory in question cannot be considered to be an authority covered under Article 12 of the Constitution of India and in view thereof it cannot be said that the matter had been submitted to the authority contemplated under the provisions of law. It is submitted that the required test can be conducted at Kolkata.
10. The stand of Respondent 2 is that the attempt of the accused person is to avoid detention of materials which would show the involvement of the accused persons. The State Government in its affidavit before the High Court has accepted that the facility of mitochondrial DNA test is not available in the Forensic Science Laboratory either in Kalina or at Kolkata. The investigating officer made similar statement. FSL, Kalina noted that the material for extraction of DNA was an old or washed clothes. The investigating officer therefore rightly stated that carrying out such an analysis on the material seized by the police during the course of investigation would bring to light with unerring certainty culpability of the accused concerned.
11. It is well settled that the accused has no right to be heard at the stage of investigation. The prosecution will however have to prove its case at the trial when the accused will have full opportunity to rebut/question the validity and authenticity of the prosecution case. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P (1999) 5 SCC 740 this Court observed:
“11. … There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard.”
12. The accused can certainly avail himself of an opportunity to cross-examine and/or otherwise controvert the authenticity, admissibility or legal significance of material evidence gathered in the course of further investigations. Further in light of the views expressed by the investigating officer in his affidavit before the High Court, it is apparent that the investigating authorities would inevitably have conducted further investigation with the aid of CFS under Section 173(8) of the Code.
13. We are of the view that what is the evidentiary value can be tested during the trial. At this juncture it would not be proper to interfere in the matter.
14. It appears from the statement of the learned counsel for the State that the lady who was murdered in Bombay was a Canadian citizen of Indian origin. It is stated that there was a confession by the accused persons on the basis of which recoveries were made. The bloodstained clothes of the accused (A-1) and the deceased were seized. It is pointed out as noted above that a Canadian citizen was murdered and therefore the Canadian Police was involved. The dead body was taken to Canada and the genetic material was with the Canadian Coroner.
15. Before the application by Respondent 2 was filed there was a letter by the Coroner to the Police Commissioner. Whether there is actually illegal recovery, since documents are there they are to be proved.
16. In that view of the matter we are not inclined to interfere and it is for the court to decide whether the evidence is admissible or otherwise. The appeals are accordingly dismissed.
Alert