Court Cannot Invoke Section 53A CrPC To Order Medical Examination After Framing Of Charge: Calcutta HC
The Calcutta High Court observed that Section 53-A of Criminal Procedure Code does not vest the Court with any power for directing a medical examination after the investigative phase which ends with framing of the charge.
The Court allowed the Petition of the Accused challenging the order of a Special Judge directing DNA profiling for a paternity test. The Court emphasized that filling investigative gaps during trial is contrary to procedural norms and could prejudice the accused.
The Court noted that Article 21 ensures a fair trial, emphasizing adherence to established legal procedures in criminal cases. The Bench noted that legal principles should not be compromised for civil or social concerns.
The Bench of Justice Moushumi Bhattacharya observed, "section 53-A does not vest the Court with any power for directing an examination under that section after the investigative phase which ends with framing of the charge"
Advocate Deep Chaim Kabir appeared for the Petitioner, Public Prosecutor Salim Mohammed appeared for the State and Advocate G. Mini appeared for the Respondent.
The criminal revision pertained to an order issued by the Special Judge (POCSO) in response to a prosecution request for DNA profiling involving the accused, the victim girl, and her minor baby. The victim girl consented to the blood sample collection for DNA analysis. The Court directed the Investigating Officer to produce the individuals for sample collection. The petitioner, who was the accused in the case, contested the application's timing, arguing that it was made after the trial began and alleged prejudicial treatment due to the Court's directive for the victim's re-appearance after her examination was completed.
The Court noted that the victim girl, aged 17 at the time of the complaint, gave her statement, after which the FIR was filed under section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, and registered.
The Bench observed that the impugned order was granted based on the presumption of paternity concerning the child born to the victim girl. The Special Court emphasized the importance of resolving the issue of paternity, citing Article 21 of the Constitution. The Court relied on Section 53-A of the CrPC, which allows examination of the accused suspected of rape. However, the application's approval under Section 53-A of the CrPC should be considered within the context of when it was filed by the prosecution.
Furthermore, the Court observed that the criminal proceeding stages, as per the CrPC, initiate the FIR and continue with the investigation until the submission of a police report or chargesheet. The Court referred to the case of H.N. Rishbud v the State of Delhi [AIR 1955 SC 196] which defined "investigation" as including all proceedings conducted by police. Cognizance is taken by the Magistrate on the police report, followed by procedural steps leading to trial, framing of charges, and prosecution evidence. The trial concludes with a judgment of acquittal or conviction.
In this case, the Court noted that the charges were framed on September 06, 2019, and witnesses for the prosecution were examined until April 2023. Further investigative actions post-trial initiation, such as the order to collect DNA evidence for a supplementary chargesheet, contradict the established procedure under the CrPC.
Additionally, the Bench observed that the gaps in the investigation were apparent from the police's failure to collect crucial evidence during their investigation. Section 53-A of the CrPC provides guidelines for police action post-arrest, including forwarding medical reports to the Investigating Officer, who then submits them to the Magistrate. This underscores that section 53-A is intended for investigation purposes, as highlighted by its connection to section 173(5)(a). Importantly, section 53-A does not grant the Court authority to order examinations after the investigative phase, which concludes with the framing of charges.
“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”, the Bench emphasized.
In this case, the Bench noted that despite being granted bail during the investigation, the police neglected to utilize section 53-A, even after the birth of the victim's child on January 01, 2019. The investigation persisted until the charges were framed on September 06, 2019. Section 311 of the CrPC empowers a Court to summon witnesses or examine persons at any stage but within the statutory framework. It cannot be used to create fresh evidence or fill lacunae in the case.
The Court observed that the investigation in this case had significant gaps, particularly in the failure to collect evidence as outlined in section 53-A. This omission suggests that the prosecution attempted to compensate for these deficiencies by invoking section 53-A after the investigation phase had concluded. The Court reiterated the importance of proper medical examination, with failure to do so is detrimental to the prosecution's case.
The Bench noted that the impugned order reflected the court's assumption that allowing DNA profiling of the child would not prejudice the accused. However, the Court's focus on determining the paternity of the child is based on civil considerations rather than criminal law principles. The adjudication of guilt must adhere to procedures outlined in the CrPC, and the future interests of the child cannot justify contravening these procedures.
“In this regard, it is important to hold that although the concept of privacy is considerably diluted in respect of an accused in a criminal proceeding, Article 21 of the Constitution will rear its protective head once when there is an infraction of the procedure established by law”, the Bench emphasized.
In this case, the Bench noted that the prosecution attempted to address gaps in its case by requesting DNA profiling, which the court allowed, focusing on the issue of paternity. “Article 21 of the Constitution embodies a fair trial and presumes that every person will have the benefit of a trial which follows the procedure established by law. The principles of criminal jurisprudence cannot be diluted or bent to justify civil or social considerations which are collateral in nature”, the Bench added.
Accordingly, the Court allowed the Petition and set aside the impugned order.
Cause Title: Sanjay Biswas v The State And Another
Appearance:
Petitioner(s): Advocates Deep Chaim Kabir and S. Ajith Prasad
Respondent(s): Public Prosecutor Salim Mohammed and Advocate G. Mini
