Mere Passing Order By Court For DNA Profiling Of Accused Doesn’t Violate Constitutional Protection Against Self-Incrimination: Rajasthan HC

The Rajasthan High Court held that an order passed by the Court for DNA profiling of an accused does not violate the Constitutional protection against self-incrimination under Article 20(3) of the Constitution.

The Jodhpur Bench held thus in a criminal miscellaneous petition filed by the undertrial and accused under Sections 363, 366-A, 376(2)(n), and 376(3) of Indian Penal Code (IPC) and Sections 6, 5(J-II), and 5(1) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Section 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act).

A Single Bench of Justice Arun Monga observed, “… I am of the opinion that mere passing an order by the Court for DNA profiling of the accused by itself does not violate the Constitutional protection against self-incrimination as enshrined in Article 20(3) and that after passing of such an order by the Court, the option/choice still lies with the accused whether or not to give his blood sample for the contemplated DNA test. The question of law framed in the opening part of this order is answered accordingly.”

Senior Advocate Vinit Jain represented the petitioner while Public Prosecutor (PP) Sumer Singh Rajpurohit represented the respondents.

Facts of the Case -

The question of law that arose in this case was whether an order passed by the Court for DNA profiling of an accused by itself violates the Constitutional protection against self-incrimination, as enshrined in Article 20(3). The petitioner-accused challenged the order passed by the Special Judge who allowed the complainant’s application for the accused’s DNA examination by a medical expert. An FIR was registered in which it was alleged that a 17-year-old girl got friendly with the accused. It was further alleged that under the pretext of marriage, the accused developed physical relations with her.

Their relationship lasted for about 3-4 years and allegedly, the accused was in possession of obscene photographs and videos on the strength of which, he exploited her with a threat that he will make them viral. In 2023, the accused took her on a motorcycle and allegedly committed forcible intercourse with her. During trial, an application was filed by the complainant stating that a girl child has been delivered by the victim and therefore, it is essential that a DNA examination of the accused and child be carried. The Trial Court allowed the said application and directed the accused to appear before the Doctor with the help of police for giving his blood samples. Hence, the petition was filed before the High Court.

The High Court in the above context of the case, remarked, “In any case, after passing of the impugned order by the learned Sessions Court, option/choice lies with the petitioner whether or not to give his blood sample for the contemplated DNA test. If he does not want not to give his blood sample for the contemplated DNA test, the petitioner can appear in the learned trial Court and make a categorical statement refusing to give his blood sample. Needless to say that in that case, he will bear the legal consequences of such refusal.”

The Court elucidated that, mere passing of the impugned order allowing the complainant’s application for petitioner’s DNA test does not, by itself, amount to compelling the petitioner to be a witness against himself for self-incrimination and that the option/choice still lies with the accused whether or not to give his blood sample for the contemplated DNA test.

“I am, therefore, unable to accept the contention of his learned senior counsel that the impugned order allowing the complainant’s application for petitioner’s DNA test directing the petitioner to provide his blood sample for DNA test, by itself, amounts to compelling the petitioner to be a witness against himself for self incrimination and violates the protection under Article 20(3) of the Constitution of India and that the option/choice still lies with the accused whether or not to give his blood sample for the contemplated DNA test”, it said.

Furthermore, the Court noted that there is no illegality or procedural irregularity fatal to the passing of the impugned order by the Trial Court, so as to warrant interference by the Court in exercise of powers under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS).

“… if the petitioner does not want not to give his blood sample for the contemplated DNA test, he can appear in the learned trial Court and make a categorical statement refusing to give his blood sample. Needless to say that in that case, he will bear the legal consequences of such refusal”, it added.

Accordingly, the High Court dismissed the petition.

Cause Title- Rohit Kumar v. State of Rajasthan & Anr. (Neutral Citation: 2024:RJ-JD:31352)

Appearance:

Petitioner: Senior Advocate Vinit Jain and Advocate Pravin Vyas.

Respondents: PP Sumer Singh Rajpurohit

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