Obtaining Blood Sample For DNA Test Does Not Violate Constitutional Right Of Accused Against Self-Incrimination- Kerala HC

Justice Kauser Edappagath observed –

"Drawing DNA samples from the body of an accused in a criminal case, especially in a case involving sexual offence, will not violate his right against self-incrimination protected under Article 20(3) of the Constitution of India."

The Court also held that the right against self-incrimination is just a prohibition on the use of physical or oral compulsion to extort testimonial evidence from a person, not an exclusive of evidence taken from his body when it may be material.

The Bench additionally held that there is no testimonial compulsion in the process of taking a sample of the blood by a qualified medical practitioner, and in no case could it be said that by this process, the accused is forced to tender evidence against himself nor by this process accused is being compelled to be a witness against himself.

Furthermore, the Court observed that as per Section 53A CrPC, the police have got enough power to send the accused to a qualified medical practitioner for the purpose of taking samples.

In this case, the order directing the accused charged under Section 376 and Section 511 IPC to appear before the investigation officer to collect his blood sample for the purpose of DNA examination was under challenge before the High Court.

Counsel V.S. Nampoothiry appeared for the Petitioner-Accused, while Public Prosecutor Sangeetha Raj appeared for the State before the Court.

The Petitioner contended before the Court that the order directing the Petitioner to submit to a DNA profiling test would amount to self-incrimination that violates his constitutional right under Article 20(3) and is thus unsustainable.

Further, it was also submitted that the question of paternity of the child has absolutely no nexus to the offence of rape, and the allegation regarding rape must be independently proved by the prosecution hence, the Court below went wrong in ordering DNA examination.

While the PP argued that the police have sufficient power to seek direction from the Court to make an accused person undergo a DNA test in a case of rape u/s 53A of CrPC.

The Court noted that DNA technology as a part of forensic science and scientific discipline, not only provides guidance to the investigation but also supplies the court accrued information about the tending features of the identification of criminals.

Further, the Bench observed-

"After the amendment of Cr. P.C, by the insertion of S.53A by Act 25 of 2005, DNA profiling has now become a part of the statutory scheme. S.53A relates to the examination of a person accused of rape by a medical practitioner. DNA profiling test is now specifically included by way of explanation to S.53 of Cr.P.C. Similarly, u/s 164A of Cr.P.C inserted by Act 25 of 2005, for medical examination of the victim of rape, the description of material taken from the person of the woman for DNA profiling is must. Thus, S.53A and S.164A inserted in the Cr. P.C by way of the Amendment Act of 2005, makes the DNA profiling of the accused and the victim permissible in cases of rape."

The Court further also noted that though Section 53A refers only to the examination of the accused by a medical practitioner at the request of the police officer, in the appropriate case, the court can give a direction to the police officer to collect the blood sample of the accused and conduct DNA test for the purpose of further investigation u/s 173(8) of CrPC.

While placing reliance on the case of Siva Vallabhaneni v. State of Karnataka and Another [(2015) 2 SCC 90], the Court observed that Section 53A does not put fetters on the investigation agency to get the accused examined at a later stage thus rejecting the argument of the Petitioner related to delay.

The Court also held that the proof of paternity of a child is a corroborative piece of evidence to establish the commission of rape., thus DNA test is a must to establish the same.

Accordingly, the Court dismissed the Petition holding that the impugned order does not suffer from any illegality or infirmity.

Cause Title – Das @ Anu v. State of Kerala

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