Calcutta: The Calcutta High Court ruled that Section 53-A of the Criminal Procedure Code does not grant the court the authority to order a medical examination after the investigative phase, concluding with the framing of charges. The court accepted the accused’s petition challenging a Special Judge’s directive for DNA profiling for a paternity test, stressing that filling investigative gaps during the trial goes against procedural norms and could unfairly harm the accused. Emphasizing the right to a fair trial under Article 21, the court highlighted the importance of adhering to established legal procedures in criminal cases and cautioned against compromising legal principles for civil or social concerns.
Justice Moushumi Bhattacharya stated that Section 53-A does not empower the court to order an examination under that section post the investigative phase. The case involved a Special Judge’s order for DNA profiling in response to a prosecution request, where the accused contested the application’s timing, alleging prejudicial treatment due to the court’s directive for the victim’s re-appearance after her examination.
The court noted the victim girl’s statement at the age of 17, leading to the filing of an FIR under the POCSO Act. The impugned order presumed paternity and emphasized resolving the paternity issue under Article 21. Despite relying on Section 53-A of the CrPC, the court stressed that the approval of such applications should consider the timing and context of the prosecution’s filing.
Furthermore, the court highlighted the procedural stages of criminal proceedings, starting from the FIR to the trial’s conclusion. Referring to the H.N. Rishbud case, the court defined “investigation” and emphasized that investigative actions, such as collecting DNA evidence for a supplementary chargesheet after charges are framed, contradict established CrPC procedures.
The Court observed,
“The gaps in the conduct of investigation in the present case would be evident from the failure of the police to collect material which they had the option of doing during the course of investigation. Section 53-A comes in Chapter V of the Code and deals with arrest of persons. Section 53-A is an enabling provision which gives a roadmap to the police after arrest”
Despite being granted bail during the investigation, the police neglected to utilize Section 53-A, even after the victim’s child was born.
The court reiterated that Section 311 of the CrPC empowers the court to summon witnesses or examine persons within the statutory framework but not to create fresh evidence or fill lacunae in the case. The prosecution’s attempt to address gaps through DNA profiling after the investigation phase was criticized, emphasizing the importance of a proper medical examination.
The court concluded that the impugned order’s focus on determining the child’s paternity was based on civil considerations, not criminal law principles. It emphasized that Article 21 of the Constitution guarantees a fair trial and cannot be diluted or bent for civil or social considerations. As a result, the court allowed the petition and set aside the impugned order.