ORDER
Mohan Shanthanagoudar, J.
1. Assailing the correctness of the order dated 1-2-2003 passed by learned Judicial Magistrate First Class, Somwarpet in Crime No. 156 of 2002, whereby the Magistrate has allowed the application dated 26-11-2002 filed fey the Investigation Officer seeking direction to the medical officer to conduct blood test of the accused by collecting sample of blood from him in order to ascertain as to whether the accused has caused pregnancy of the complainant or not, the accused has come forward with the present petition.
2. The brief facts of the case giving raise to the present petition are that:
Crime No. 156 of 2002 is registered in Somwarpet Police Station on the basis of the complaint lodged by one G.S. Poornima on 15-11-2002 for the offences punishable under Sections 313, 417 and 506 of the IPC. It is alleged in the said complaint that the accused-petitioner herein was in love with the complainant-Poornima; assuring the complainant that he would marry her and made her to believe so, had illicit intercourse with her on number of occasions since December 2000; when the complainant was pregnant on account of such sexual intercourse, she informed the same to the accused and requested him to marry her; but the accused asked her to terminate the said pregnancy medically and that he would bear the expenses and again promised the complainant of marrying her. However, the accused and his family members started evading her. Thereafter, the accused left the village itself and came back a week prior to lodging of the complaint and told the villagers that he has married another girl. The complainant is now having one and half year old baby boy who is born out of the sexual relationship between the accused and the complainant. During the course of the investigation, the accused was released on bail. The investigation officer filed an application before the jurisdictional Magistrate seeking permission to take blood sample of the accused for the purpose of conducting D.N.A. test in order to ascertain the fact as to whether the accused caused pregnancy of the complainant or not. The said application is allowed by the Court below under Section 53 of the Code of Criminal Procedure (hereinafter referred to as 'Code' for short). The said order is assailed in this petition.
3. Sri C.H. Jadhav, learned Counsel appearing for the petitioner made four-fold submissions.
Firstly, he contended that there is no provision in the Code of Criminal Procedure which enables the Court or police to take sample of the blood of the accused for, determining the blood group/D.N.A. test and that the expressions used in Section 53 of the Code will have to be given a restricted meaning inasmuch as the said provision can include only physical or external examination and cannot include taking of blood sample for determination of blood group which is brutal and offensive.
Secondly, he contended that the impugned order directing the accused to subject himself for blood test is violative of the fundamental right guaranteed under Article 20(3) of the Constitution of India as it amounts to testimonial compulsion.
Thirdly, he contended that Section 53 of the Code contemplates subjecting only the arrested persons for medical examination and not the persons who have been released on bail.
Lastly, he contended that the provision of Section 53 of the Code contemplates that the medical examination will have to be done at the instance of a police officer not below the rank of Sub-Inspector and that the Magistrate has no role to play under Section 53 of the Cr. P.C,, and consequently, the impugned order passed by the learned Magistrate is bad in law.
Based on aforesaid grounds, learned Counsel prayed for setting aside the impugned order. In support of his contentions, learned Counsel has relied on two decisions i.e., (1) Amarjit Kaur v. Harbhajan Singh and Ors. and (2) Goutam Kundu v. State of West Bengal and Anr.
4. Per contra, Sri M. Marigowda, learned Additional State Public Prosecutor, argued in support of the order passed by the Court below.
5. I have heard the learned Counsels for both sides and perused the material on record.
6. Before proceeding further it is necessary to note the provisions of Section 53 of the Code and Article 20(3) of the Constitution of India which read thus:
'Section 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'.
'Article 20(3) of the Constitution of India.--No person accused of any offence shall be compelled to be a witness against himself.
7. In our justice dispensation system, while adjudicating the questions involved in litigation, in the absence of any direct and positive evidence on record, if the Court is of the considered opinion that the scientific investigation is just and necessary for proper adjudication of the dispute, the Court will make use of the scientific evidence. In fact, Order 26, Rule 10-A of the Code of Civil Procedure, empowers the Civil Courts to appoint Commission for scientific investigation, where any question arising in the suit needs scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court. But, the Code of Criminal Procedure is silent about power of a Court to direct, taking of blood sample for D.N.A. analysis.
8. Section 53 of the Code was introduced for the first time in the year 1974 enabling the Courts and the investigation officers to facilitate the effective investigation. The main object of enacting of this provision was to have investigation conducted with scientific approach, which may either benefit the prosecution or the accused, The law Commission of India, in paragraph 5.1 of its 41st report, has said thus, in respect of this new provision:
'. . . the Commission has considered at length the question as to how far the physical examination of the arrested person is legally and constitutionally permissible and what provision, if any should be made in the Code for the purpose. It came to the conclusion that a provision on the subject was needed and recommended a new section authorising, in certain circumstances and subject to certain safeguards, the examination of person of the accused by a qualified medical practitioner. We agree that such provision is necessary for effective investigation and will not offend against Article 20(3) of the Constitution'.
9. In my considered view, the modern community living requires modern scientific methods of crime detection, lest the public go unprotected. Such scientific tests are necessary for proving the guilt as well as innocence of the accused. Otherwise, the general public, more particularly, the litigants in the criminal matters will go unprotected. There is nothing brutal or offensive or shocking in taking the blood sample under the protective eye of law. This is one of the well-recognized methods adopted in the crime detection all over the world. Insertion of Sections 53 and 54 of the Code was intended to remove the lacuna found in the old Code where there was no specific provision authorising the Police Officer to subject the arrested person to medical examination without his consent. However, the new provision of Section 53 of the Code confers power upon the investigating machinery to get the accused examined and Section 54 of the Code confers such right on the accused to prove his innocence or otherwise. Section 53 of the Code imposes an obligation upon the arrested person to subject himself for medical examination at the instance of Police Officer to help the investigation. The constitutional mandate does not say that no person shall be deprived of his right or personal liberty under any circumstances. On the contrary, if such deprivation of right or personal liberty is in accordance with the procedure established by law, the same does not violate Article 21 of the Constitution of India. Thus, in my view, if the contention raised by the learned Counsel for the petitioner that the examination of the petitioner will not include taking of blood sample for determination of his blood group but means only physical, external examination of the skin and the body, is accepted, then the very purpose of introduction of Section 53 of the Code will be frustrated or defeated.
10. So far as the question of causing hurt is concerned, even causing of some pain may technically amount to hurt as defined by Section 319 of the Indian Penal Code. Pain might be caused if the accused is subjected to a forcible medical examination. For example, in cases of rape it may be necessary to examine the private parts of the culprit. If a culprit is suspected to have swallowed some stolen article, an emetic may be used and X-ray examination may also be necessary. For such purposes the law permits the use of necessary force. It cannot, therefore, be said that merely because some pain is caused, such a procedure should not be permitted.
11. In this connection, a reference may be made to the judgment rendered by High Court of Andhra Pradesh in the case of Ananth Kumar Naik v. State of Andhra Pradesh. The Court, while considering the scope of Section 53 of the Code observed that 'Examination of person by a medical practitioner must logically take in examination by testing his blood, semen, urine, etc'. The Court further observed that Section 53 of the Code provides for use of such force as is reasonably necessary for making such examination. Therefore, whatever discomfort might be caused when samples of blood and semen are taken from an arrested person, would be justified under the provisions of Sections 53 and 54 of the Code. In the said judgment, the Court observed thus:
'. . . Under the new Code provision is made for the medical examination of an arrested person at the instance of a Police Officer of a proper rank and also at the instance of the arrested person himself. Such an examination necessarily forms part of investigation as defined in Section 2(h) of the Code. According to said definition, 'investigation' includes all the proceedings under the Code for the collection of evidence conducted by a Police Officer or by any person who is authorised by a Magistrate in this behalf. Subjecting an arrested person to medical examination under Section 53 of the Code is a proceeding under the Code and therefore forms part of investigation'.
12. Madras High Court in the case of Thaniel Victor v. State, has held that examination of a person under Section 53 of the Code cannot be restricted to only physical examination of the body and if necessary would include examination of an internal organs.
13. The Division Bench of Allahabad High Court in the case of Jamshed v. State of Uttar Pradesh, has also taken the view that though there is no specific provision under the Indian law permitting taking the blood sample, yet, in criminal case, 'examination of a person' includes an examination of any organ inside the body, and taking of blood sample also. It is observed that in modern society, taking of blood could not be said to be something offensive or against the sense of decency and that there is nothing repulsive or shocking to the conscience in taking the blood sample. As such, even causing some pain in the process may be permissible under Section 53 of the Code.
14. The Allahabad High Court in the case of Neeraj Sharma v. State of Uttar Pradesh, while discussing the power of the Magistrate to direct medical examination under Section 53 of the Code held thus:
'It will not be proper to give a restricted meaning to the word 'examination' used in Section 53 of the Code. The examination of the accused should mean a complete examination which a medical practitioner may like to have by all modern and scientific tools available in order to give his opinion and it should not be confined to a superficial examination by merely having a look at the body of the accused. In fact a doctor who is trained and is used to employing modern day technique for diagnosis may refuse to give his opinion unless he performs the necessary scientific tests in this regard. The Legislature was also conscious of this and has, therefore, made a specific provision permitting use of force while enacting Section 53 in the Code of 1974.
Therefore, a Magistrate has full power to direct that a medical examination of the accused be performed or samples of his hairs, nails, etc., be taken where the offence alleged to have been committed is of such a nature and is alleged to have been committed under such circumstances that there are reasonable grounds for believing that such an examination will afford evidence as to the commission of offence'.
15. In the case of State of Bombay v. Kathi Kalu Oghad, the Hon'ble Supreme Court, in the Bench of Hon'ble 11 Judges considered the similar question in relation to Article 20(3) of the Constitution of India and also re-examined some of the propositions laid down in the case of M.P. Sharma and Ors. v. Satish Chandra, District Magistrate, Delhi and Ors. It is held therein that 'to be a witness' in relation to oral evidence means 'imparting knowledge in respect of relevant facts by a person who has personal knowledge of a facts to be communicated to a Court'. It is further observed that Section 139 of the Indian Evidence Act recognises the distinction between producing a documents and being a witness, for it provided: 'a person summoned to produce a document does not become a witness by mere fact that he produced it and cannot be cross-examined unless and until he has called as a witness'. In the said judgment, the Hon'ble Supreme Court, after considering various aspects, came to the following conclusions:
(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a Police Officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.
(3) 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or fingers or fingers or specimen writings or showings parts of the body by way of identification are not included in the expression 'to be a witness'.
(5) 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.
(6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case-law has gone beyond this strict literal interpretation of the expression, which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.
16. The Apex Court, in the recent judgment in the case of Sharda v. Dharmpal, held that medical examination of a party can be ordered by Court either suo motu or at the instance of party. The Court, in an appropriate case, can direct the medical examination of a party to the matrimonial litigations. While considering the question as to whether the matrimonial Court has got power to order a person to undergo medical examination and as to whether the same would offend the Article 21 of the Constitution of India, the Apex Court observed that the right to privacy in terms of Article 21 of the Constitution is not absolute right and if there were a conflict between fundamental rights, of the parties, that right which advances public morality would prevail. In the said judgment it has been further observed thus:
'Having outlined the law relating to right to privacy in India, it is relevant in this context to notice that certain laws have been enacted by the Indian Parliament where the accused may be subjected to certain medical or other tests.
By way of example, we may refer to Sections 185 and 202 to 204 of the Motor Vehicles Act;
Sections 53 and 54 of the Code of Criminal Procedure and Section 3 of the Identification of Prisoners Act, 1920. Reference in this connection may also be made to Sections 269 and 270 of the Indian Penal Code. Constitutionality of these laws, if challenge is thrown, may be upheld'.
(emphasis supplied)
17. Looking to the dictum laid down in various decisions cited supra, it is clear that though Section 53 of the Code does not specifically provide for taking of blood sample for examination, yet there is no embargo for the Court under Section 53 of the Code to order for drawing blood sample for tests. The examination of a person under Section 53 of the Code cannot only be restricted to external examination but, if necessary, would include examination of blood, urine and semen etc. Such an examination necessarily forms part of 'investigation' as defined in Section 2(h) of the Code. Section 53 of the Code provides use of such force as is reasonably necessary for such examinations. In the process of such examination, if the accused undergoes discomfort, the same cannot be said to be unjustified. I concur with the opinions of the High Courts of Allahabad, Andhra Pradesh, Madras and Bombay referred to supra in taking the view that the expression 'examination of person' as used in Section 53 of the Code will also include in its import, taking blood sample of the accused for determining his blood group in order to establish his guilt or innocence.
18. The next question that arises for my consideration is whether the impugned order is in violation of Article 20(3) of the Constitution of India. In order to claim the protection under Article 20(3) of the Constitution of India against the testimonial compulsion, it must be shown firstly, that the person is 'an accused of an offence' secondly, 'he must have been compelled' thirdly, 'the compulsion must be to be a witness' fourthly, 'against accused himself.
19. As aforesaid, the learned Counsel for the petitioner has relied upon the judgment of the Apex Court in the case of Amarjit Kaur, supra, in support of his contention. In the said judgment, the Apex Court referred to the judgment of Goutam Kundu's case, wherein the legal position was declared as to the circumstances and the limitations to be observed in compelling anyone to give a sample of blood against his/her will for D.N.A. analysis, keeping in view, the serious consequences flowing from the same, i.e., the branding of a child as a bastard and the mother as an unchaste woman.
The facts in the case of Amarjit Kaur, supra, disclose that the High Court had imposed a condition, while considering the question of grant of maintenance pendente lite, of subjecting the child to D.N.A. test. The said condition imposed by the High Court was questioned in the Apex Court. The Apex Court, while considering the said question observed thus:
'Coming now to the nature of the condition imposed, though, it has been seriously contended for the appellant that no such condition could have been imposed to compel the undergoing of a D.N.A. test of the male child, we do not propose to express any opinion on the legality or propriety of the Court undertaking consideration at the appropriate stage, by the Court competent, in the main petition of any application moved in an appropriate manner according to law, but we would confine our consideration to the limited aspect as to whether the High Court could have imposed such a condition at the stage of awarding interim maintenance pendente lite and that too without an application for the purpose from the other party, at the instance of the Court by way of a suggestion put to the appellant in the course of consideration of the application for interim maintenance. The law in the matter governing the consideration and passing any order in respect of a claim for D.N.A. test has sufficiently been laid down by this Court and if a party to a proceeding cannot be compelled against his/her wish to undergo any such test, we fail to see how the Court on its own could have imposed a condition without any consideration whatsoever of any of the criteria laid down by this Court, by adopting a novel device of imposing it as a condition for the grant of the interim maintenance; with a default clause, which as rightly contended for the appellant, will have the inevitable consequences of pre-determining the claim about the parentage with serious consequences even at the preliminary stage. The procedure, thus, adopted by the High Court does not appear to be neither just nor reasonable or in conformity with the principles of law laid down by this Court and consequently the order is liable to be set aside'.
(emphasis supplied)
20. As could be seen from the aforesaid judgment, the Apex Court confined its consideration to the limited aspect as to whether the High Court could have imposed such condition at the time of awarding the interim maintenance pendente lite, that too, without any application from either party. Ultimately, the Apex Court held that imposition of such condition while granting an order of interim maintenance was bad in the eye of law. In the said judgment, the question as to whether conducting of blood test of an accused at the instance of the Investigating Officer violates the Article 20(3) of the Constitution, was not involved and thus, was not considered. Even in the case of Goutam Kundu, supra, the question as to whether collection of blood sample of the accused is violative of Article 20(3) of the Constitution or not was not involved. The following five guidelines are laid down by the Apex Court:
(1) That Courts in India cannot order blood test as a 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 Indian 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 analysis.
The Apex Court in the said judgment sounded a note of caution as regards mechanical passing of orders for blood test.
The facts of the said case disclose that during subsistence of valid marriage, a female child was born to the couple. The differences between the husband and wife arose because of the harassment meted out by the husband against the wife. Consequently, the wife started living separately and claimed maintenance by filing application under Section 125 of the Cr. P.C. In that proceeding, the husband disputed the paternity of the child and prayed for the blood test of the child to prove that he is not the father of the child. The said application was rejected by the Trial Court, which order was confirmed by the High Court and the Hon'ble Supreme Court. The Apex Court was of the view that the purpose of such an application of the husband seeking the blood test of the child is nothing more than to avoid payment of maintenance. In the said case, the Apex Court was of the view that the husband has not made out any ground whatsoever to have recourse to the test inasmuch as the child was born during subsistence of valid marriage. Consequently, the Apex Court confirmed the orders of the Courts below and laid down the aforesaid five guidelines.
21. The Apex Court in the case of M.P. Sharma (the Bench consisting of 7 Hon'ble Judges), while dealing with the principle involved in Article 20(3) of the Constitution of India held thus:
'Article 20(3) embodies the principle of protection against compulsion of self-incrimination which is one of the fundamental canons of the British system of criminal jurisprudence and which has been adopted by article of its Constitution. It has also, to a substantial extent, been recognised in the Anglo-Indian administration of criminal justice in this country by incorporation into various statutory provisions.
So far as the Indian law is concerned, it may be taken that the protection against self-incrimination continues more or less as in the English common law, so far as the accused and production of documents are concerned, but that it has been modified as regards oral testimony of witness, by introducing compulsion and providing immunity from prosecution on the basis of such compelled evidence.
Analysing the terms in which this fundamental right has been declared in our Constitution, it may be said to consist of the following components: (1) It is a right pertaining to a person 'accused of an offence'; (2) It is a protection against 'compulsion to be a witness'; and (3) It is a protection against such compulsion resulting in his giving evidence 'against himself'.
Broadly stated the guarantee in Article 20(3) is against 'testimonial compulsion'. But there is no reason to confine it to the oral evidence of a person standing his trial for an offence when called to the witness stand. The protection afforded to an accused insofar as it is related to the phrase 'to be a witness' is not merely in respect of testimonial compulsion in the Court room but may well-extended to compelled testimony previously obtained from him. It is available, therefore, to a person against whom a formal accusation relating to the commission of an offence has been leveled which in the normal course may result in prosecution.
Considered in this light, the guarantee under Article 20(3) would be available to persons against whom a First Information Report has been recorded as accused therein. It would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against them'.
Thus, it is clear from the said judgment that the protection afforded to an accused insofar as it relates to the phrase 'to be a witness' is not merely in respect of testimonial compulsion in the Court room but it may well be extended to the compelled testimony previously obtained from him i.e., during the course of investigation.
22. In the case of Kathi Kalu Oghad, supra, the Apex Court, in the Bench consisting of 11 Hon'ble Judges considered this aspect in the light of Article 20(3) of the Constitution of India and observed thus:
'To be a witness' may be equivalent to 'furnishing evidence' in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. 'Furnishing evidence' in the latter sense could not have been within the contemplation of the Constitution makers for the simple reason that though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English Law on the subject -they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law Courts with legitimate powers to bring offenders to justice. Furthermore, it must be assumed that the Constitution makers were aware of the existing law, for example, Section 73 of the Indian Evidence Act or Sections 5 and 6 of the Identification of Prisoners Act, 1920 (33 of 1920). Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken, if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure to do so: 'Measurements' include finger impressions and foot-print impressions. If any such person who is directed by a Magistrate, under Section 6 of the Act, to allow his measurements or photographs to be taken resists or refuses to allow the taking of the measurements or photographs, it has been declared lawful by Section 5 to use all necessary means to secure the taking of the required measurements or photographs. Similarly, Section 73 of the Indian Evidence Act authorises the Court to permit the taking of finger impression or a specimen handwriting or signature of a person present in Court, if necessary for the purpose of comparison.
It is well-established that Clause (3) of Article 20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in Court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a 'personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But, his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'.
23. Further, the Division Bench of Bombay High Court in the case of Anil Anantrao Lokhande v. State of Maharashtra, observed thus:
'So far as the contention based on Article 20(3) is concerned in our opinion there is no substance in the said contention. As held by the Supreme Court in Kathi Kaul Oghad's case, supra, mere taking of blood for determination of blood group will not amount to testimonial compulsion within the meaning of Article 20(3) of the Constitution of India'.
The Allahabad High Court in Jamshed's case, supra, observed thus:
'Whatever reasoning is adopted, the taking of the blood of the appellant, as in the instant case, will not amount to the accused becoming a witness against himself'.
24. The Rajasthan High Court in the case of Miss Swati Lodha v. State of Rajasthan, while dealing with similar question with reference to Article 20(3) of the Constitution observed thus:
'A specimen handwriting or signature of finger impressions by themselves, are no testimony at all, being wholly innocuous, because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence, which is outside the limit of testimony. Giving of blood sample does not amount to imparting knowledge by the accused in respect of relevant facts by means of Court statements or statements in writing. A blood in a human being, in spite of efforts, cannot be concealed and cannot change its intrinsic character. A blood sample by itself is no testimony at all being wholly innocuous. It is only material for comparison, in order to lend assurance to the Court that an inference based on other pieces of evidence is relevant. Consequently, taking of blood from the veins of an accused, does not amount to compelling an accused, does not amount to compelling an accused person to be a witness against himself There is thus no violation of Article 20(3) of the Constitution'.
25. In the recent judgment, the Apex Court in the Bench consisting of three Hon'ble Judges in the case of Sharda, supra, while dealing with similar question, observed by way of clarification that 'the law laid down in Goutam Kundu's case, supra, is 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 jurisdiction it has been held that suck direction should ordinarily be made if it is in the interest of child'.
(emphasis supplied)
It is further observed in the said judgment that certain laws have been enacted by the Indian Parliament where the accused may be subjected to certain medical examination or other tests such as Sections 53 and 54 of the Code; Sections 185, 202, 203 and 204 of the Motor Vehicles Act; and Section 3 of the Identification of Prisoners Act. It is also further observed in the said judgment that constitutionality of these laws, if challenged, may be upheld. The Apex Court, after referring to the judgment of the High Court of Andhra Pradesh in the case of Smt. M. Vijaya v. The Chairman and Managing Director, Singareni Collieries Company Limited and Ors., thus:
'In India there is no general law as such compelling a person to undergo HIV/AIDS test. Indeed Article 20 of the Constitution states that no person accused of any offence shall be compelled to be a witness against himself. Be that as it may, under Prison Laws, as soon as a prisoner is admitted to prison, he is required to be examined medically and the record of prisoners' health is to be maintained in a register. Women prisoners can only be examined by the matron under the general or special powers of the Medical Officer. As per Section 37 of the Prisons Act, any prisoner wanting to be medically examined or appearing to be sick has to be reported before the Jailor who in turn is liable to call the attention of the Medical Officer in that behalf and all the directions issued by the Medical Officer are to be recorded.
Under the ITP Act, the sex workers can also be compelled to undergo HIV/AIDS test. When sex workers are detained in corrective institutions or welfare homes either under Section 10-A or under Section 17(4) or 19(2) of the Act, there are adequate provisions for medical examination. There are also provisions in segregating rescued women who are suffering from venereal diseases. We may also notice that Section 2 of the Dissolution of Muslim Marriage Act, 1939, Section 32 of the Parsi Marriage and Divorce Act, 1936, Section 10 of Indian Divorce Act, 1869, Section 13 of Hindu Marriage Act, 1956 and Section 27 of Special Marriage Act, 1955 make incurable venereal diseases of either of spouses a ground for divorce. Further, under Sections 269 and 270 of the Indian Penal Code, 1860, a person can be punished for negligent act of spreading infectious diseases.
In cases of divorce on the ground that the other spouse is suffering from HIV/AIDS or in case under Sections 269 and 270 of the IPC, can the person be compelled to give blood specimen for HIV test. The immunity under Article, 20 does not extend to compulsion of giving of blood specimens?'
(emphasis supplied)
25-A. In the United States of America, such laws have been held not to violate the Fifth Amendment of the US Constitution. In Armando Schmerber v. State of California, obtaining of an alcohol test has been held not to be unconstitutional. Similarly, in Paul H. Breithaupt v. Morris Abram, taking of blood sample from an accused has been held to be not in violation of Constitution 5th Amendment. In Charles Joseph Kastigar and Michael Gorean Stewart v. United States, it is stated.
26. Looking to the dictum laid down by the Apex Court and other High Courts in the aforesaid judgments, it is clear that when the accused is called upon by the Court or any other authority holding investigation to give his finger impression or signature or specimen of his handwriting or blood for D.N.A. test, he is not giving any testimony of the nature of personal testimony. The giving of a personal testimony depends upon his volition. He can make any kind of statement or may refuse to make any statement. But, his finger impression, handwriting or blood sample, in spite of efforts at concealing the true nature of them, by dissimulation, cannot change their intrinsic character. Thus, giving of finger impressions or specimen writing or signatures or blood sample by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'. In this view of the matter, Article 20(3) of the Constitution of India will not be violated if the accused is directed to give sample of blood. The true meaning of the words 'to be a witness' under Article 20(3) of the Constitution is explained by the 11 Judges' Bench of the Apex Court in Kathi Kalu Oghad's case, supra. The Constitution makers could not have intended to put obstacles in the way, of efficient and effective investigation into a crime and for doing justice by punishing real culprits. Even otherwise, mere examination of a person and taking of blood sample in itself is not an incriminating circumstances and therefore, it cannot be said that by mere taking of blood sample of a person, he is compelled to be a witness against himself. As aforesaid, the Law Commission of India, in its 41st report, observed that the provision of Section 53 of the Code is necessary for effective investigation and such provision will not offend against Article 20(3) of the Constitution.
27. Specimen handwriting, signature, finger impressions, blood or semen samples by themselves are not testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence, which is outside the limit of 'testimony'. The expression 'to be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing made or given in Court or during investigation. Giving blood sample for D.N.A. test does not amount to imparting knowledge by the accused in respect of the relevant facts. The blood in human being cannot be concealed and cannot change its character in spite of efforts. Consequently, I have no hesitation to hold that taking of blood sample from the accused does not amount to compelling him 'to be a witness against himself'. Thus, the impugned order does not violate Article 20(3) of the Constitution of India, as contended by the learned Counsel for the petitioner.
28. Thus, it takes me to the third contention urged by the learned Counsel for the petitioner.
Merely because, the accused is released on bail, he does not cease to be the 'arrested person' or 'person in custody' and that therefore, the power conferred on the Court/investigating officer under Section 53 of the Code can be exercised. Until the accused is tried, proved not guilty and acquitted of the charges leveled against him, he is the accused and under custody of the Court. The release on bail does not change the reality and from that fact alone, it cannot be said that he is not a person arrested for an offence. A person released on bail is still considered to be detained in the constructive custody of the Court through his surety. He has to appear before the Court as and when required or directed. He is notionally in the custody of the Court and hence, continues to be a person arrested. Therefore, to that extent, his liberty is subjected to restraint. Moreover, Section 173(8) of the Code confers an express power to the investigating authority to carry out further investigation after cognisance is taken by the Court. My aforesaid view is supported by the judgments in Anil Anantrao Lokhande's case, supra; Ananth Kumar Naik's case, supra and Thaniel Victor's case, supra. As such, even in spite of the fact that the accused is released on bail, he continues to be a person arrested on a charge of commission of an offence and, therefore, his medical examination can be carried out under Section 53 of the Code of Criminal Procedure even after his release on bail
29. Now coming to the fourth and last contention of the petitioner, though Section 53 of the Code discloses that the medical examination will have to be conducted at the instance of a police officer not below the rank of Sub-Inspector, that does not prohibit other superior officers or the Court concerned from exercising said power if it is necessary for rendering justice in criminal case. If medical examination of an accused can be done at the instance of the police officer not below the rank of Sub-Inspector, then such a power should be deemed to be impliedly possessed by a Magistrate or Court trying the offence. There is no warrant for curtailing the scope of the Section 53 of the Cr. P.C. The primary duty of the Court is to ascertain the truth. Thus, it is not correct to say that Court or Magistrate cannot direct or order the accused for medical examination as contemplated under Sections 53 and 54 of the Code. In this context, a reference can be made in the judgment of the Apex Court in the case of State (Delhi Administration) v. Pali Ram, wherein, the Apex Court, while upholding the power of the Court under Section 53 of the Code to direct the accused to give his specimen writing observed thus:
'In the revision petition filed by the accused before the High Court a grievance is sought to be made out that the Magistrate's order will work prejudice to the defence and enable the prosecution to fill gaps and loopholes in its case. This contention was devoid of force. Once a Magistrate in seisin of a case, duly forms an opinion that the assistance of an expert is essential to enable the Court to arrive at a just determination of the issue of the identity of disputed writing, the fact that this may result in the 'filling of loopholes' in the prosecution case is purely a subsidiary factor which must give way to the paramount consideration of doing justice, Moreover, it could not be predicated at this stage whether the opinion of the Government Expert of questioned documents would go in favour of the prosecution or the defence. The argument raised before the High Court was thus purely speculative.
In addition to Section 73, there are two other provisions resting on the same principle, namely, Section 165, Indian Evidence Act and Section 540 of the Criminal Procedure Code, 1898 which between them invest the Court with a wide discretion to call and examine any one as a witness, if it is bona fide of the opinion that his examination is necessary for a just decision of the case. In passing the order which he did, the Magistrate was acting well-within the bounds of this principle'.
In our opinion these observations aptly apply to the present case also. Therefore, it is open to the Court which is seized of the matter to issue direction or to grant approval or permission to the police for carrying out further investigation under Section 53 of the Code of Criminal Procedure.
The aforesaid observations of the Apex Court are applicable to the facts of the present case also. Therefore, I am of the considered opinion that it is open to the Court which is seized of the matter to issue direction or permission to the police officer concerned to conduct investigation under Section 53 of the Code including the blood test.
30. From the above discussion, it is clear that the Criminal Court can make a direction for a blood test of the accused, depending on the facts and circumstances of the case to find out the guilt or innocence of the accused. Such a direction will not offend Article 20(3) of the Constitution of India. In certain cases, where it is contrary to the future and interests of the child, the Courts should be cautious as regards passing of such order mechanically. Such direction for medical examination may be made, if it is in the interest of the child depending upon the facts and circumstances of the case.
31. In the case on hand, it is alleged that the petitioner, by promising the complainant that he would many her, had intercourse with her and caused her pregnancy resulting in giving birth to baby boy. Though the Lotus grows in the mud pond, it has divine value while worshiping. In the case on hand, though the child is born out of the alleged sexual relationship between the complainant and the petitioner, he has every right to live with all dignity and respect in the society. In order to ascertain the truth in the allegations made against the accused-petitioner, to save the complainant Poornima from possible stigma that could be attached to her and to save the baby boy from being called as 'bastard' in the society, in my view it is just and necessary for the investigating authority to get the blood sample of the accused for testing and to subject him for medical examination. In my considered view, if the application for blood test is rejected in this case, it will lead to injustice to the complainant and the child inasmuch as the child which is born as a result of a relationship between the complainant and the petitioner will be attached with stigma permanently. Looking to the peculiar facts and circumstances of the present case and material available on record, I am of the considered view that the Court below is justified in allowing the application filed by the investigation officer to subject the petitioner for blood test. I do not find any illegality in the said order. Consequently, the petition is liable to be dismissed as the same is devoid of merits.
The petition is dismissed accordingly.