S. P. TALUKDAR, J. ( 1 ) PETITIONER, Smt. Lakshmi Bose Roychowdhuri, by filing an application under section 401 read with section 482 of the Code of criminal Procedure sought to assail the order dated 24th April, 2006 passed by the learned Additional Sessions Judge, Fast Track Court, Haldia, District purba Midnapore, in connection with Sessions Trial No. V/march/2005. The said case arose out of Durgachak Police Station Case No. 6 of 2000 dated 19. 01. 2000 under section 302/201/34/120b of the Indian Penal Code. ( 2 ) GRIEVANCES of the petitioner, as ventilated in the present application, may briefly be stated as follows: petitioner got married to Dr. Swapan Bose Roychowdhuri on 20. 08. 1991. After marriage, she left for her matrimonial home at Barauni, Bihar. She gave birth to a male child on 18. 05. 1993. In June, 1999, the husband of the petitioner was posted as Medical Officer in Indian Oil Refinery, Haldia and he started residing in the quarter allotted to him along with his family members. On 19. 01. 2000, Dr. Sawpan Bose Roychowdhuri was found dead on the bank of a river in front of Hindustan Petrochemicals Limited. Over such death, Durgachak Police Station Case No. 6/2000 dated 19. 01. 2000 was instituted on the basis of a written complaint lodged by one Balai Barik, with the Officer-in-Charge of the police station, inter alia, alleging commission of offences punishable under section 302/201/34 of Indian Penal Code. ( 3 ) THE father-in-law of the petitioner namely, Pratul Bose Roychowdhuri and other members of her matrimonial home were incessantly torturing the petitioner, physically and mentally and this led the petitioner with no choice but to lodge a complaint before the learned Court of Additional Chief judicial Magistrate, Tamluk, for commission of offences punishable under section 498a/380/384/308/506 of the Indian Penal Code against the said Pratul bose Roychowdhuri and others. The said case was numbered as M. P. Case no. 487 of 2000. On 23. 11. 2000, learned Additional Chief Judicial Magistrate, tamluk, directed the concerned police authority to investigate into the allegations made in the said complaint after treating the same as FIR under section 156 (3) of the Criminal Procedure Code. Pursuant to that, Haldia police Station Case No. 4/2001 dated 08. 02. 2001 under section 498a/380/ 384/308/506 of the Indian Penal Code was registered for investigation. Pursuant to that, Haldia police Station Case No. 4/2001 dated 08. 02. 2001 under section 498a/380/ 384/308/506 of the Indian Penal Code was registered for investigation. ( 4 ) AFTER completion of investigation the said Haldia Police Station Case no. 4/2001 dated 08. 02. 2001 ended in submission of final report being f. R. M. F. No. 17/2001 dated 30. 06. 2001. In response to the same, notice was issued upon the de facto -complainant. The present petitioner, as de facto-complainant, filed a "protest petition". After hearing learned Counsel for the parties, the learned Magistrate by order dated 27. 08. 2003 directed further investigation of the case which was directed to be conducted by Sub-Divisional police Officer, Haldia. ( 5 ) THE petitioner filed a probate application with regard to the last Will and testament dated 09. 01. 2000 of her husband Dr. Swapan Bose roychowdhuri in the Court of the learned District Judge, Alipore, 24-Parganas (South ). The said case was numbered as Probate Case No. 441/ 2001. On 06. 01. 2001 a probate application was filed in connection with the will and testament dated 02. 01. 2000 of Dr. Swapan Bose Roychowdhuri being Probate Case No. 304/2000. In connection with the said probate application an original suit was filed before the learned District Judge, Alipore, 24-Parganas (South) on 24. 05. 2001 by Pratul Bose Roychowdhuri with regard to a Will and testament dated 02. 01. 2000 of Dr. Swapan Bose Roychowdhuri and the same was numbered as Original Suit No. 304/2000. ( 6 ) IN spite of pendency of the aforesaid proceedings, the said Pratul Bose roychowdhuri filed a petition of complaint on 19. 04. 2003 with alleged offences under section 419/467/468/469/471/120b of the Indian Penal Code and the same was numbered as C. Case No. 120/2003. Learned Additional Chief judicial Magistrate, Tamluk. directed Officer-in-Charge of the Haldia Police station to investigate into the matter after treating the said petition as FIR and this gave rise to Regent Park Police Station Case No. 48/2003 dated 19. 04. 2003. In the said case it was alleged by the complainant that dr. Harinandan Prasad Sharma, Sasanka Bhowmick, Jatindra Nath bhowmick, Uttam Kumar Pan along with the present petitioner, Smt. Lakshmi Bose Roychowdhuri, forged the signature of Dr. Swapan Bose roychowdhuri in order to facilitate a false Will of the said Dr. Roychowdhuri. The petitioner along with Dr. 04. 2003. In the said case it was alleged by the complainant that dr. Harinandan Prasad Sharma, Sasanka Bhowmick, Jatindra Nath bhowmick, Uttam Kumar Pan along with the present petitioner, Smt. Lakshmi Bose Roychowdhuri, forged the signature of Dr. Swapan Bose roychowdhuri in order to facilitate a false Will of the said Dr. Roychowdhuri. The petitioner along with Dr. Sharma were arrested in connection with the said case on 06. 02. 2004 and were produced before the learned Court of Sub-Divisional Judicial Magistrate, Alipore. They were let out on bail. ( 7 ) OPPOSITE party filed an application under section 439 (2) of the Criminal procedure Code praying for setting aside the order dated 06. 02. 2004 thereby enlarging the petitioner and Dr. Sharma on bail. It was registered as miscellaneous Case No. 1072/2004. Learned Sessions Judge, Alipore by order dated 06. 04. 2004 rejected the application. The petitioner along with Dr. Sharma and Dr. Amrit Debnath were, however, arrested in connection with the Durgachak Police Station Case No. 6/2000 dated 19. 01. 2000 and 04. 11. 2004. Such arrests were made more than four years and ten months after the death of Dr. Swapan Bose Roychowdhuri. ( 8 ) FATHER of Dr. Roychowdhuri, Pratul Bose Roychowdhuri, filed a writ application being W. P. No. 12298 (W) of 2001. In response to the same, learned writ Bench of this Court directed investigation into the cause of death of dr. Swapan Bose Roychowdhuri by a police officer not below the rank of superintendent of Police. Pursuant to a perfunctory investigation, the investigating Officer of the instant case submitted chargesheet in the Court of the learned Magistrate being Chargesheet No. 79/2004 dated 12. 12. 2004 against the petitioner and two others. Learned Magistrate by order dated 22. 12. 2004 was pleased to take cognizance. The petitioner was, however, enlarged on bail by the Division Bench of this Court in connection with an application under section 439 of Criminal Procedure Code. ( 9 ) ON 22. 06. 2005, the Special Superintendent of Police, C. I. D. , West bengal, filed an application before the learned Additional Sessions Judge, fast Track Court, Haldia, Purba Midnapore, for the DNA test of the petitioner, her son and others in connection with the instant case. The present petitioner as well as Dr. Sharma filed applications in a way of reply. On 24. 04. The present petitioner as well as Dr. Sharma filed applications in a way of reply. On 24. 04. 2006, after hearing learned Counsel appearing on behalf of the parties, the learned Judge allowed the said prayer made by the Special superintendent of Police, C. I. D. , West Bengal. Thus, by order dated 24. 04. 2006 the learned Court directed the present petitioner and her child to undergo a DNA test. ( 10 ) BEING aggrieved by the said order, the petitioner filed the present application. ( 11 ) MR. Sekhar Basu, appearing as learned Counsel for the petitioner, assailed the order dated 24. 04. 2006 by first mentioning that the order under challenge, if allowed to remain in force, will amount to degenerating the administration of justice into a weapon of harassment. It was further attacked on the ground that such order was passed in total violation of the express provisions of the Criminal Procedure Code. It was submitted by Mr. Basu that since the order dated 24. 04. 2006 itself cannot be sustained any action taken subsequent of the said order must also held to be illegal. It was then submitted on behalf of the petitioner that the order under challenge was passed in a strange fashion without paying any regard to the provisions of law. ( 12 ) ON the other hand, Mr. S. S. Roy, learned Counsel for the opposite party/state, referred to the relevant provisions of law in the context of the impugned order dated 24. 04. 2006. ( 13 ) IT is perhaps necessary to refer to the backdrop of the present controversy. ( 14 ) SOMETIME after submission of chargesheet an application dated 22. 06. 2005 was submitted before the learned Court of Additional District and Sessions Judge (Fast Track Court), Haldia, Purba Midnapore, by the special Superintendent of Police, C. I. D. , West Bengal, praying for seeking permission and order for extracting sample of blood from the concerned persons for conducting DNA test. It was claimed that such test was necessary for ascertaining the actual parentship of the child, Ambarneel bose Roychowdhuri. ( 15 ) IN the application dated 22. 06. 2005, the Special Superintendent of police, C. I. D. claimed that there is dispute over the parenthood of the male child which would culminate in the actual legal ownership of properties. It was claimed that such test was necessary for ascertaining the actual parentship of the child, Ambarneel bose Roychowdhuri. ( 15 ) IN the application dated 22. 06. 2005, the Special Superintendent of police, C. I. D. claimed that there is dispute over the parenthood of the male child which would culminate in the actual legal ownership of properties. It was urged that it is necessary to ascertain the actual parenthood of the child for deriving a conclusive medico legal evidence and opinion for the interest of investigation of the case. ( 16 ) IN the written objection filed on behalf of the accused persons, it was stated that accused Smt. Lakshmi Bose Roychowdhuri never made any claim on behalf of her son, Ambarneel, about ownership of the properties of late dr. Swapan Bose Roychowdhuri. The accused raised strong objection to the prayer for collection of blood samples after about ten months of completion of investigation and filing of chargesheet. The accused persons further stated in the written objection that such attempted exercise is absolutely irrelevant and investigating authority cannot be allowed to do something which has nothing to do with the present criminal case and may be of relevance in a dispute over inheritance of properties. ( 17 ) LEARNED Court by the impugned order dated 24. 04. 2006 allowed the application and was of the view that this is necessary in order to establish 'motive' behind the crime. ( 18 ) IT is no wonder that such controversy touching intricate points of law required inviting attention of the Court to various judgements. ( 19 ) THE decisions as cited by Mr. Basu, learned Counsel appearing on behalf of the petitioner as well as by Mr. S. S. Roy, as learned Counsel for the opposite party/state may now be dealt with one after another. ( 20 ) IN the case of Chilukuri Venkateswarlu vs. Chilukuri Venkatanarayana, reported in AIR 1954 SC 176 , the Apex Court observed as follows: "access and non-access connote existence and non-existence of opportunities for marital intercourse. Non-access can be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue, though as the presumption of legitimacy is highly favoured by law, it is necessary that proof of non-access must be clear and satisfactory. Non-access can be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue, though as the presumption of legitimacy is highly favoured by law, it is necessary that proof of non-access must be clear and satisfactory. The principle of English Common Law, according to which neither a husband nor a wife is permitted to g'. ve evidence of non-access, after marriage to bastardise a child born in lawful wedlock, does not apply to legitimacy proceeding in India. " ( 21 ) THE said case, however, was in the context of a suit for recovery of possession on partition. Question of legitimacy of the plaintiff was raised and required consideration in the said case. ( 22 ) IN the case of Perumal Nadar (dead) by L. E. vs. Ponnuswami Nadar (minor), reported in AIR 1971 SC 2352 , it was held that unless the husband is able to establish absence of access, presumption raised under section 112 of the Evidence Act will not be displaced. ( 23 ) THE Apex Court in the case of Ammathayee @ Perumalakkal and Anr. vs. Kumaresan @ Balakrishman and Ors. , reported in AIR 1967 SC 569 , observed that section 112 of the Evidence Act raises a conclusive presumption that a child born during the continuance of a valid marriage between his mother and any man is the legitimate son of that man, and this conclusive presumption can only be rebutted if it is shown that the parties to the marriage had no access to each other at any time when he could have been begotten. ( 24 ) IT is the settled position of law that section 112 of the Evidence Act requires the party disputing the paternity to prove non-access in order to dispel the presumption. The Apex Court in the case of Goutam Kundu vs. State of West Bengal and Anr. , reported in 1993 Cr. LJ 3233, observed as follows: "thus following is the position as to permissibility of blood test to prove paternity. (1) That Courts in India cannot order blood test as a matter of course. (2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. , reported in 1993 Cr. LJ 3233, observed as follows: "thus following is the position as to permissibility of blood test to prove paternity. (1) That Courts in India cannot order blood test as a matter of course. (2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. (3)Thefe 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. " ( 25 ) ON behalf of the petitioner learned Counsel Mr. Basu also referred to the Single Bench judgement of this Court in the case of Tushar Roy vs. Sukla Roy, reported in 1992 (II) CHN 327 . It was held therein that the conclusive presumption under section 112 of the Evidence Act 'shall presume' is rather based on a sound policy of affording protection to the sanctity and stability of family relationship so that for every trifling suspicion or for oblique purposes the question of legitimacy of a child born or conceived in the wedlock does not become a handy target of scandalisation and indecent investigation. ( 26 ) THE learned Single Judge further held that -"there is no doubt that truth is always good and the same must triumph when untruth threatens truth. But then there may be occasions when truth competes truth. There then comes the question of choice. The truth that is more effective way will have to be preferred. In some of the doubtful cases it may be good to know the truth about biological paternity, but the truth of necessity of ensuring the welfare of a child rather than bastardising it, the truth of the desirability of protecting the family relationship from scandalisation motivated by oblique purpose are also truths which may in a large number of cases overshadow the other truth. The difference between the English Law and the Indian Law is that under the English Law rebuttal of the presumption of legitimacy is more a question of quality of onus whereas in Indian Law it is rather a question of admissibility of evidence for discharge of the onus. " ( 27 ) IN the said judgement the learned Judge further added that -"the science of serology is not yet that perfect as can definitely say that certain person is the biological father of a child. It can only exclude some person from paternity and that too not in hundred per cent cases. Even an innocent person, if per chance he is not so excluded by reason of the imperfection of the science, will fall within the category of possible father. That itself may expose him to a speculative suspicion backed by the imperfect science. In Indian social conditions that itself may prove to be a social stigma for which even an innocent person may feel shy or embarrassed to submit to serological test. " ( 28 ) IT is the categorical stand as decided in a number of cases that collection of blood sample cannot be done in a way of investigative experiment for determining paternity. ( 29 ) SIGNIFICANTLY enough, while echoing the same view a Single Bench of the Allahabad Court in the case of Bharti Raj vs. Sumesh Sachdeo and Ors. , reported in AIR 1986 Allahabad 259, held that it would be unjust and not fair either to direct a test for a collateral reason to assist a litigant in his or her claim. The child cannot be allowed to suffer because of his incapacity, the aim to ensure that he gets his rights if in a case the Court has reason to believe that the application for blood test is of a fishing nature or designer for some ulterior motive, it would be justified in not acceding to such a prayer. ( 30 ) MR. S. S. Roy as learned Counsel appearing on behalf of the O. P. / state first refer to section 112 of the Evidence Act. He submitted that such blood group test has been recognised practically throughout the world. ( 30 ) MR. S. S. Roy as learned Counsel appearing on behalf of the O. P. / state first refer to section 112 of the Evidence Act. He submitted that such blood group test has been recognised practically throughout the world. It was contended that the blood test in the manner as sought for by the prosecution will go a long way to establish the crime before the Court of law and, as such, there could be no reason for standing in the way. ( 31 ) ON perusal of the impugned order it is found that the learned Court was largely swayed by the fact that in order to enable the prosecution to prove the motive of the accused persons and in absence of any direct evidence, the blood test as sought for is necessary. Learned Court was of the view that since there is no direct evidence of murder, the prosecution must have to depend on some probable relevant factors prior to the occurrence of murder. ( 32 ) INTERESTINGLY enough, in the application filed before the learned Trial court, the prosecution did not choose to highlight that aspect. ( 33 ) ON behalf of the petitioners, attention of the Court was drawn to the fundamental right of every citizen which is the privilege against self-incrimination. ( 34 ) IN the Hamlyn Lectures on "human Rights, Serious Crime and criminal Procedure", Andrew Ashworth Q. C. , mentioned that "if one is thinking about an ideal criminal justice system, it is sufficient to say that the goals of that system are accuracy, fairness, participation and communication: that may sound good, but it fails to indicate how conflicts are resolved, and how the goals are to be prioritised. " He mentioned about ten possible procedural rights for persons accused of potentially serious crimes and those are: 1. The right to be presumed innocent 2. The privilege against self-incrimination 3. The right of silence 4. The right to legal aid and assistance 5. The right to be brought promptly before a Court 6. The right to release pending trial 7. The right to disclosure of documents 8. The right to confront witnesses 9. The right to be tried on evidence not obtained by violation of fundamental rights 10. The right not to be placed in double jeopardy. The right to be brought promptly before a Court 6. The right to release pending trial 7. The right to disclosure of documents 8. The right to confront witnesses 9. The right to be tried on evidence not obtained by violation of fundamental rights 10. The right not to be placed in double jeopardy. ( 35 ) IT is said that -"the accused during a criminal prosecution had at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. " ( 36 ) THERE is a view that "the unintentional conviction of the innocent is a greater evil than the unintentional acquittal of the guilty. " The Supreme court of U. S. A. in Re : Winship, 1970 (397) U. S. 358, held that "a society that values the good name and freedom of every individual should not condemn a man for commission of a crime where there is reasonable doubt about his guilt. " ( 37 ) PRIVILEGE against self-incrimination is necessary to protect each person's privacy, to protect the autonomy of the individual and to protect from cruel choices which it is unfair to impose on an individual. There may not be any privilege against collection of evidence known to exist at the time of compelled production, such as, bodily samples. But the Court is required to take into consideration the particular facts and circumstances of the case. ( 38 ) HERE in the present case, it appears that learned Court strained itself to dig out a ground and according to it, in order to establish motive behind the crime, such blood test in the manner as sought for is necessary. ( 39 ) IN view of the legal position as referred to earlier, it cannot be denied that in the circumstances of the present case, law certainly does not permit collection of blood sample against the will of the person concerned. The fact that the child, whose paternity seems to be the headache of the prosecution, is not even an accused in the case but at best, a witness. The fact that the child, whose paternity seems to be the headache of the prosecution, is not even an accused in the case but at best, a witness. Naturally, it sounds very absurd that the investigating authority will be permitted to collect his blood sample as well with the mission of establishing the motive behind the crime, as held by the learned Trial Court and that too, long after submission of chargesheet of the case. ( 40 ) THERE may, however, be situations when such collection of blood sample may be necessary in order to unveil a mystery. But the present controversy stands on a distinctly different footing and there can be no reason worthmentioning so as to justify onslaught on basic human right. ( 41 ) IT is also necessary to mention that motive is not indispensably essential in every case, although, proof of motive always remains a material consideration. Motive is surely not sine qua non, but is relevant and important on the question of intention. ( 42 ) MATERIALS on record clearly reveal that there are disputes over property and unpleasant controversies are likely to be raised over rights of inheritance. But this cannot justify anxiety of the investigating authority, as the proposed 'blood test' does not, strictly speaking, seem to have much relevance in the case under reference. Investigating authority cannot be permitted to take the learned Court for a ride and collect such materials which may have a bearing in the possible disputes over property. ( 43 ) NO doubt, section 173 (8) of the Criminal Procedure Code permits the police to proceed with further investigation even after submission of chargesheet. But that cannot be done for the purpose of collecting materials which may only be relevant in other proceedings. ( 44 ) WHY should the child, who is already a victim of unfortunate circumstances and at best, a witness in the case, be subjected to such process of blood extraction? Why should the accused be also subjected to such test against their will and that too, at this belated stage? ( 45 ) MOREOVER, can the proposed test bring the entire controversy to an end? ( 46 ) BORROWING the words of the philosopher, Will Durrant, "to observe process and to construct means is science". But, science only tells us how to heal and how to kill. ( 45 ) MOREOVER, can the proposed test bring the entire controversy to an end? ( 46 ) BORROWING the words of the philosopher, Will Durrant, "to observe process and to construct means is science". But, science only tells us how to heal and how to kill. It is the philosophy of life that can only tell us when to heal and when to kill. Law in our society cannot be so divorced from life that instead of attempting to explore the truth, it will encourage controversies and confusion. Proposed blood test, long after submission of chargesheet, does not pass the test of legal scrutiny. ( 47 ) IN the facts and circumstances of the present case and in view of the legal position, as referred to earlier, I am inclined to hold that the learned Trial Court completely misdirected itself while dealing with the application filed on behalf of the prosecution praying for permission and order for extracting sample of blood. The order dated 24th April, 2006 suffers from inherent impropriety and illegality as well as misappreciation of law. ( 48 ) AS such, the present application being C. R. R. No. 1533 of 2006 be allowed. The order dated 24th April, 2006 passed by the learned Additional sessions Judge, Fast Track Court, Haldia, Purba Midnapore, in Sessions trial No. V/march/2005 be set aside. Interim order, if any, be vacated. ( 49 ) LEARNED Trial Court is directed to proceed with the case as expeditiously as possible. ( 50 ) CRIMINAL Department is directed to supply urgent certified copy of this order, if applied for, to the learned Counsel for the parties, after due compliance with the legal formalities. Application allowed.