JUDGMENT 1. - Instant misc. petition has been submitted by the accused impugning the order dated 14.7.1998 of the learned Additional Chief Judicial Magistrate cum Presiding Officer, Special Court Communal Riots Kota, whereby the application moved by the Central Bureau of Investigation (for short the CBI) seeking permission to obtain blood sample of the accused-petitioner for DNA Test, was allowed. 2. Brief resume of the facts is that an FIR was lodged by the informant Zile Singh, father of deceased Neela Rana on 21.5.1998 against the accused-petitioner and other co-accused with the Police Station Nayapura Kota. Case under sections 302, 376, 363, 366, 201 Si 217 CPC, was registered and the accused-petitioner was arrested. The Investigating Officer took the blood sample of the accused-petitioner and sent it for analysis to CDFD Hyderabad. The sample was not found fit for the purposes of analysis and the laboratory asked for another blood sample. As the investigation of the.case has since been changed, the CBI moved application before the learned Court-below seeking permission of the Court to take blood sample of the accused-petitioner for DNA Test. The application was hotly contested by the accused-petitioner but the learned Court below permitted the CBI to take blood sample of the accused. 3. Mr. Chatterjee, learned counsel for the CBI raised preliminary objection in respect of maintainability of the petition. Mr. Chatterjee canvassed that the blood sample has already been taken and analysed by the laboratory, as such the petition has become infructuous. Learned counsel contended that the investigating officer can seek permission of the Court under section 53 Cr.P.C. to take blood sample of the accused and Art. 20(3) of the Constitution is not attracted. Reliance was placed on State of Bombay v. Kathi Kalu, AIR 1961 SC 1808 and Mahipal Maderna v. State of Rajasthan, RLW 1971 page 43. 4. Mr. A.K. Gupta, learned counsel appearing for the petitioner on the other hand vehemently urged that Courts in India cannot order blood test as a matter of course. No one can be compelled to give sample of blood for analysis. Reliance was placed on Goutam Kundu v. State of West Bengal, 1993 (3) SCC 418 . 5. I have reflected over the rival submissions and carefully scanned the case law cited before me. 6. No one can be compelled to give sample of blood for analysis. Reliance was placed on Goutam Kundu v. State of West Bengal, 1993 (3) SCC 418 . 5. I have reflected over the rival submissions and carefully scanned the case law cited before me. 6. The Law Commission of India in their 37th Report had considered at length the question as to how far the physical examination of the arrested person is legally and constitutionally permissible and what provisions, if any, should be made in the Code of Criminal Procedure for this purpose. It came to the conclusion that provision on the subject was needed and recommended a new section authorising in certain circumstances and subject to certain safeguards, the examination of the person of the accused by a qualified medical practitioner [Law Commission of India 37th Report Para 183 and Appendix 6]. The commission in this 41st Reports agreed that such a provision was necessary for effective investigation and that it would not offend against Art. 20(3) of the Constitution [Law Commission of India, 41st Report, Page 37 Para 5.1] 7. Thus Section 53 of the Code of Criminal Procedure was enacted. Sub-section (1) of Section 53 of the Code of Criminal Procedure provides as under : "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." 8. Division Bench of Bombay High Court in Anil Anant Rao Lokhande v. State of Maharashtra, 1981 Cr. Division Bench of Bombay High Court in Anil Anant Rao Lokhande v. State of Maharashtra, 1981 Cr. L.J. 125, observed that mere examination of person and taking of blood sample in itself is not incriminating circumstance and hence, it can not be said that by mere taking sample of blood a person is compelled to be a witness against himself. 9. Andhra Pradesh High Court in Anant Kumar Naik v. State of Andhra Pradesh, 1977 Cr.L.J. 1797 indicated that subjecting an arrested person to medical examination under section 53 Cr.P.C. is a proceeding under section 2(4) Cr.P.C. and therefore forms part of investigation. Taking of semen or blood though may inflict some torture or pain is allowed by law. Even reasonable force can be used to subject arrested person to medical examination though it may discomfort him.This Court in Miss Swati Lodha v. State of Raj., RLR 1990(1) page 50 laid down following proposition in respect of blood test of the accused- "18. A review of the above law, would go to show the following propositions are well settled : (1) Report of blood test is capable of amounting to corroboration of the statement of the complainant. It amounts to corroboration even under the common law. The nature of the corroboration would necessarily vary according to the particular circumstances of the offence charged. The test applicable to determine the nature and extent of the corroboration is the same whether the case falls within the rule of common law or within that class of offences for which corroboration is required by statute. A Criminal Court can make a direction for a blood test to be taken by taking blood sample of the complainant, accused and of the child. In certain cases, where it is contrary to the interest of a minor the Court may not make a blood test direction. (2) The Court cannot order an adult to submit to blood test. A blood test which involves insertion of a needle in the veins of a person, is an assault, unless consented to. It would need express statutory authority to require an adult to submit to it. This is based on the fundamental that human body is inviolable and no one can prick it. A blood test which involves insertion of a needle in the veins of a person, is an assault, unless consented to. It would need express statutory authority to require an adult to submit to it. This is based on the fundamental that human body is inviolable and no one can prick it. (3) Where a Court makes a direction for a blood test, and the accused fails or refuses to comply with the blood test direction the Court can in the circumstances of the case use the refusal or failure of the accused to submit to blood test as a corroborative evidence against him. If a party refuses to submit blood test, the Court may infer that some impediment existed which pointed towards the implication of the accused. 10. In Gautam Kundu v. State of West Bengal (supra) their Lordships of the Supreme Court had occasion to consider the point in respect of blood grouping test to determine parentage. It was propounded thus- "26. From the above discussion it emerges- (1) That Courts in India can not order blood test as a matter of course. (2) Wherever applications are made for such prayers in order to have roving enquiry, 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 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 for analysis. 11. Subayya Gounder v. Bhoopala Subramanian, AIR 1959 Mad. 396 was the case where Madras High Court held thus : "The permissibility of identification by finger, palm and foot prints and the taking of accused's picture after arrest, blood and urine tests, use of emetic stomach pump or similar device for extracting ornaments swallowed etc. requiring suspect or accused to wear or trying on particular apparel or requiring defendant in criminal case to exhibit himself or perform physical acts during trial and in presence of Jury are not hit by the immunity conferred by Art. 20(3) and do not offend the due process clause." 12. requiring suspect or accused to wear or trying on particular apparel or requiring defendant in criminal case to exhibit himself or perform physical acts during trial and in presence of Jury are not hit by the immunity conferred by Art. 20(3) and do not offend the due process clause." 12. In Jamshed v. State of U.P., 1976 Cr. L.J. 1680 the Division Bench of Allahabad High Court observed thus- "We are therefore of the view that there is nothing repulsive or shocking to conscience in taking the blood of the appellant in the instant case in order to establish his guilt It cannot, therefore, be said that merely because some pain is caused, such a procedure should not be permitted." 13. In Anil Anaut Rao Lokhande v. State of Maharashtra, 1981 Cr. L.J. 125 the Division Bench of Bombay High Court propounded that the use of the expression 'to be witness' in Art. 20(3) of the Constitution, the makers of the Constitution could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. Even otherwise mere examination of the person and taking of blood sample in itself is not an incriminating circumstance, and, therefore, it can not be said that by mere taking sample of blood a person is compelled to be a witness against himself. The Courts are not required to determine whether a certain procedure established by law was brutal or offensive or shocking to the conscience and was therefore unreasonable. Infringement of personal liberty or life, if in accordance with the procedure established by law, is not justiciable. 14. Negativing the contention based on provisions of Art. 20(3) of the Constitution of India, this Court in Mahipal Maderna v. State of Rajasthan, 1971 Cr.L.J. 1405 held that exposing the hair or taking specimen cannot be said to be furnishing evidence. The question posed in the case was as to whether during investigation accused could be asked to give specimen hair and whether that will violate the rights guaranteed by Arts. 20(3) & 21 of the Constitution. Placing reliance on State of Bombay v. Kathi Kale Oghad, AIR 1961 SC 1808 it was observed that asking accused to give specimen hair during investigation does not encroach upon his liberty in the sense in which the word has been used in the Constitution. 20(3) & 21 of the Constitution. Placing reliance on State of Bombay v. Kathi Kale Oghad, AIR 1961 SC 1808 it was observed that asking accused to give specimen hair during investigation does not encroach upon his liberty in the sense in which the word has been used in the Constitution. It does not compel the accused to be a witness against himself. 15. Ratio propounded by their Lordships of the Supreme Court in Goutam Kundu's case (supra) is not applicable in the facts and circumstances of the case on hand. In Goutam Kundu's case their Lordships had no occasion to consider Section 53 of the Code of Criminal Procedure. In that case the husband had moved a petition praying for blood group test of the wife and the child to prove that he was not the father of the child, as according to him, if that could be established he would not be liable to pay maintenance. Under those circumstances the Apex Court held thus:- "Blood grouping test is a useful test to determine the question of disputed paternity. It can be relied upon by Courts as a circumstantial evidence which ultimately excludes a certain individual as a father of the child. However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis against his/her will and no adverse inference can be drawn against him/her for this refusal." 16. From the above discussion it emerges (i) that mere taking of blood sample for analysis will not amount to testimonial compulsion within the meaning of Art. 20(3) of the Constitution of India. (ii) that Section 53(1) Cr.P.C. authorises a police officer not below the rank of Sub-Inspector to arrange for the medical examination of the accused for the purpose of collecting evidence and also permits the use of such force as is reasonably necessary for that purpose. Examination of the accused includes taking of his blood sample for the purpose of analysis. 17. I am therefore unable to persuade myself to agree with the contentions raised by Mr. A.K. Gupta, learned counsel appearing for the accused-petitioner. I see no illegality in the impugned order of the learned Court below. 18. Resultantly, the petition stands dismissed.Petition dismissed. *******