1 R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE25H DAY OF MARCH2015BEFORE THE HON’BLE MR. JUSTICE G. NARENDAR CRIMINAL PETITION No.101791/2014 BETWEEN: DEVAPPA HALAGERI S/O BHEEMEPPA HALAGERI AGE:
32. YEARS, OCC: COOLIE, R/O: HALAVARTHI, TQ: KOPPAL. (BY SRI : NEELENDRA D.GUNDE, ADVOCATE) ... PETITIONER AND : STATE OF KARNATAKA KOPPAL RURAL POLICE, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, DHARWAD. ... RESPONDENT (BY SRI K.S. PATIL, HIGH COURT GOVERNMENT PLEADER) THIS CRIMINAL PETITION IS FILED U/S482OF SEEKING TO ALLOW THIS CRIMINAL CR.P.C. 2 PETITION, BY SETTING ASIDE THE ORDER
DATED2310.2014 PASSED BY THE DIST. & SESSIONS JUDGE, KOPPAL, IN FIR (POSCO) NO.373/2014, FOR THE OFFENCES P/U/S376 506 OF IPC AND4OF POSCO ACT, 2012. THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
This petition is filed by the accused praying to call for the records and set aside the order dated 23.10.2014 passed by the District and Sessions Judge, Koppal and the Special Court for trying offences under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act’, for brevity).
2. The petitioner is arrayed as an accused in a complaint registered as FIR (POCSO) No.373/2014 by the Koppal Rural Police. The accusation is that the petitioner as a result of intimacy with the victim impregnated her resulting in her pregnancy and delivery of a girl child. It is the further case of the prosecution 3 that the victim is a minor aged about 16 years on the date of commission of offence.
3. The prosecution on registration of FIR has indicted the accused for the offences punishable under Sections 376 and 506 of I.P.C. and under Section 4 of the POCSO Act. The accused was arrested and remanded to judicial custody. Thereafter the Investigation Officer has moved an application and the learned Public Prosecutor seeking permission to conduct DNA examination of the victim, child delivered by the victim and also the accused in order to demonstrate the parentage and to prove that the child is born on account of the accused impregnating the victim.
4. The said application came to be resisted by the accused on the ground that the same is not maintainable as it violates the personal liberty guaranteed under Article 20 of the Constitution of India and the constitutional mandate states that no person shall be 4 forced to incriminate himself and such is a violation of his constitutional rights. The court below after a detailed consideration of the rival submissions and after considering the rulings of the Hon’ble Apex Court and High Court has been pleased to allow the application and has permitted the prosecution to conduct the DNA test and for that purpose has permitted the prosecution to draw blood from the victim, accused and the newly born child delivered by the victim.
5. The facts in brief are as follows – The accused is alleged to have committed the offence of rape on the victim and as a result of the impregnation, the victim has conceived and delivered a baby girl child. But the parents of the victim are reluctant to allow the DNA test on their daughter, who is the victim. The said reluctance is also relied upon by the accused – petitioner to demonstrate the illegality of the impugned order. 5 6. It is also contended by the accused petitioner that compelling him to undergo the test is violative of the rights enshrined in Articles 20 and 21 of the Constitution of India and the rights guaranteed under the constitution are inviolable and hence the application ought to have been rejected by the court below and the court below has committed a grave illegality by allowing the application and coercing the accused and the victim to give blood samples for the purpose of establishing DNA and the parentage of the new born.
7. In the above facts and circumstances, the question that lies for consideration before this Court is : “Whether the impugned order is violative of the inviolable provisions enshrined in the Constitution?.” 8. The answer by this Court is an emphatic “No”.
9. There is no dispute with the petitioner’s contention that no person can be coerced into self incrimination in a criminal case, but whether the same provisions enables violation of 6 another person’s right to live, which also includes the right to live with dignity.
10. In the backdrop of these competing rights, the other person here who is forced to be a mute spectator on account of his age is the new born child and in these circumstances it is the duty of the Court to act as his guardian and ensure that the right guaranteed to the minor new born child is not violated.
11. In this backdrop of competing rights, i.e., the right of an adult enshrined under Article 20(3) of the Constitution of India and the right of the new born under Article 21, necessarily the right of the minor new born child must prevail and the claim of the petitioner accused based on Article 20(3) of the Constitution of India is required to be rejected. Nodoubt, these rights are inviolable even by the State, but the circumstances involved in the present case are a making of the petitioner – accused and he and the victim are answerable to the minor new born child. In the 7 light of the right vested in the minor new born under Article 21 of the Constitution he has a right to live with dignity and not carry the tag of being an illegitimate child for the remainder of his life. The court below has rightly rejected the reluctance of the victim also and has rightly alluded to the possible collusion between the accused and the victim.
12. Prima facie the apprehension of the court below alluding collusion between the victim and the accused appears to be reasonable and is not baseless. This Court also apprehends that the victim may be forced by her parents/guardian to abandon the minor new born child. Such abandonment would result in depriving the minor new born child of legitimate rights and could also lead to the abandoned child suffering unwanted woes and misery. There is also a possibility that if the child falls into the wrong hands he could turn into a criminal and wreck havoc on the civil society. 8 13. Apart from the apprehensions, it is the duty cast upon the courts to act as a guardian of minor children. The safety and health of minor children is predominant. The right of an adult must necessarily cede to the right of a minor. In that light, the petition is liable to be rejected and is accordingly rejected. But the apprehension of the accused that the said test would be used in the criminal case to establish his guilt for the offence punishable under Section 376 of I.P.C. cannot be lightly brushed aside. In view of the specific bar under clause (3) of Article 20 of the Constitution of India, which reads as follows – (3) No person accused of any offence shall be compelled to be a witness against himself.
14. The prosecution is prohibited from relying upon the DNA test for the purpose of establishing guilt of the accused in respect of the offences registered under the provisions of Section 376 of I.P.C. and Section 4 of the POCSO Act. The blood samples drawn for the purpose of conducting the DNA test on the victim, accused and the new born child cannot be permitted to 9 be used by the prosecution for the purpose of demonstrating the offences alleged against the petitioner. In view of the bar under clause (3) of Article 20 of the Constitution of India. In view of my above findings, petition stands dismissed. Sd/- JUDGE hnm