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2005 DIGILAW 533 (JHR)

Shaktipada Chakraborty v. State Of Jharkhand

2005-07-21

ALTAMAS KABIR

body2005
ORDER Altamas Kabir, C.J. 1. This application has been filed for quashing of the cognizance taken by the learned Chief Judicial Magistrate, Bokaro in connection with Chandankiyari P.S. Case No. 95/2003 (corresponding to G.R. No. 927/2003) under Sections 370, 372, 373, 376/34 of the Indian Penal Code. 2. The prosecution case, in short, as revealed from the First Information Report lodged by one Nepal Bauri, the father of the OP No. 3, is that along with his co-neighbours Yadav Singh and Raju Bouri came to Amlabad Out Post alleging that on the last day of Durga Puja in the year 2003 the co-villagers of the informant namely, Sripati Thakur and Ajit Thakur lured away the OP No. 3, Malti Kumari, the minor daughter of O.P. No. 2 and took her away from her house by assuring the informant that she will be properly employed. Thereafter, the said villagers went to Sudamdih and kept the daughter of the informant confined in the house of the petitioner herein for performing household work. Subsequently, the informant went to Sudamdih to bring his daughter home and he was allowed to do so for a day. On coming home, Malti Kumari refused to go back to the house of the petitioner and informed her mother that the petitioner had tried to rape her. During course of investigation Malti Kumari and the informant alleged that on commission of rape by the accused she had become pregnant. She was duly examined medically by Dr. Laxmi Pandey, Medical Officer, Sadar Hospital, Chas, on 10th December, 2003. 3. It is the case of the petitioner that he made a representation to the Superintendent of Police, Bokaro on 11th December, 2003 stating that the allegations which have been brought against him were false since he had undergone vasectomy in the year 1976-77and was incapable of coition. Subsequently, an application was filed in the Court of Chief Judicial Magistrate, Bokaro stating that Malti Kumari, O.P. No. 3, had given birth to a female child on 16th May, 2004. Thereafter, in course of investigation the Investigating Officer filed a petition before the Chief Judicial Magistrate, Bokaro, for permission to conduct a DNA test on the petitioner but the same was denied as the petitioner was not in judicial custody. Thereafter, in course of investigation the Investigating Officer filed a petition before the Chief Judicial Magistrate, Bokaro, for permission to conduct a DNA test on the petitioner but the same was denied as the petitioner was not in judicial custody. Inasmuch as, it was not possible to collect any semen sample from the petitioner, a prayer was made by the Investigating Officer for DNA test to be conducted from the blood samples of OP No. 3 and new-born child. On 28th May, 2004 the learned Sessions Judge, Bokaro, directed that DNA test to be conducted at the cost of the petitioner and along with that the petitioner was directed to be examined by a Medical Board to ascertain as to whether he had ever been operated upon for vasectomy. However, it transpires that on several dates the O.P. No. 3 refused to give blood for DNA test which would have had the effect of determining the paternity of the child. On the other hand, an application was made by the O.P. No. 2, who has since died, stating that it was not possible either for the OP No. 3 or the child to give a blood sample for the DNA test as the health of both O.P. No. 3 and the child was not good. 4. On the basis of the above and after arguments were exchanged it was recorded by the learned Sessions Judge on 23.6.2004 that police had submitted a report in final form. Accordingly, the petitioner was also permitted to withdraw his bail petition which was dismissed as withdrawn. 5. Thereafter, inspite of final report filed by the Investigating Officer the learned Chief Judicial Magistrate, Bokaro, by order dated 24.6.2004 took cognizance on the complaint made by the O.P. No. 2 namely on the basis of the statements made and the affidavits which had been filed. It is the said order of cognizance which has been challenged in the instant proceeding. 6. On behalf of petitioner it has been submitted that since semen sample could not be collected from him, the proposed DNA test had assumed a good deal of relevance and an adverse presumption should be drawn against the petitioner for her refusal to provide her blood sample as well as that of her child which would have established beyond doubt the allegations if at all true made by the O.P. Nos. 2 and 3. 2 and 3. It was urged that without even referring to the direction given by the learned Sessions Judge for holding such DNA test, the learned Magistrate had taken cognizance of the offence on the basis of the statements made in course of investigation. 7. On behalf of O.P. No. 3 it was submitted that O.P. No. 2 had expired during the pendency of the matter and that, in any event, it was not necessary for the OP No. 3 to provide blood sample to. be given by her and her child for the purpose of determining as to whether any offence of rape had been committed, particularly when Vasectomy had in certain circumstances been found not to be final in certain cases. It was sought to be submitted that mere refusal by the O.P. No. 3 to co-operate in the matter of holding of DNA test was not sufficient to disprove her complaint. 8. Having considered the submissions made on behalf of respective parties, and having further regard to the fact that it is on record that despite several attempts it had not been possible to collect the semen sample of the petitioner which is in keeping with the story that vasectomy had been performed earlier, and having further regard to the fact that the conduct of the DNA test would have at least shown as to who was the father of the child and in particular as to whether petitioner was the father of the child or not, the report filed by the police in final form appears to have been the correct procedure adopted and the learned Chief Judicial Magistrate, Bokaro, without even considering the said materials took cognizance on the basis of the complaint and the statements made during investigation. 9. In such circumstances, the cognizance taken, in my view, was not proper and is quashed. 10. This application is accordingly allowed. There will be no order as to costs.