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2013 DIGILAW 267 (UTT)

Dilshad v. State of Uttarakhand

2013-05-20

ALOK SINGH

body2013
ORDER Present revision is filed assailing the judgment and order dated 06.04.2013, passed by Sessions Judge, Udham Singh Nagar, in criminal revision No. 40 of 2012, whereby learned Sessions Judge was pleased to allow the application moved by the prosecution directing the learned Magistrate to issue direction to revisionist to appear on the date fixed by Magistrate for giving sample of his hairs to the police for comparison with the hairs, so recovered from the palm of deceased Simpy. 2. Brief facts of the present case, inter alia, are that an FIR No. 235 of 2011 for the offence punishable under Section 302 IPC was got registered with police station Bazpur for murder of Simpy; some human hairs were recovered from the palm of deceased Simpy; an application was moved by the Investigating Officer on 08.12.2011 before Judicial Magistrate, Kashipur, seeking permission to take sample hairs of the accused revisionist, so that the same may be compared with hairs, so recovered from the palm of deceased Simpy; learned Magistrate, vide order dated 08.12.2011, permitted to take sample hairs of accused revisionist by Medical Officer, Government Hospital, Kashipur on 12.12.2011; Investigating Officer failed to collect the sample hairs of accused revisionist within stipulated time; meanwhile, after investigation charge-sheet was filed against the revisionist for the offence punishable under Section 302, IPC; However, realizing the mistake, another application was moved by the Investigating Officer before the learned Magistrate seeking permission to take sample hairs of accused revisionist for examination/comparison with hairs, so recovered from the palm of the deceased. 3. Learned Magistrate, vide order dated 19.12.2011, was pleased to reject the application having observed that earlier too, permission was granted, however, police failed to make compliance of the order, therefore, after filing of charge-sheet, such permission seems to be unjustified. Feeling aggrieved, State preferred a criminal revision before the learned Sessions Judge, which was allowed vide impugned order dated 06.04.2013. Feeling aggrieved, accused revisionist has preferred this revision. 4. Mr. R. S. Sammal, learned counsel for the revisionist, submits that order of Magistrate rejecting the application seeking permission to take sample hairs of accused was interlocutory order, therefore, revision was not maintainable before the Sessions Judge. On the other hand, Mr. Feeling aggrieved, accused revisionist has preferred this revision. 4. Mr. R. S. Sammal, learned counsel for the revisionist, submits that order of Magistrate rejecting the application seeking permission to take sample hairs of accused was interlocutory order, therefore, revision was not maintainable before the Sessions Judge. On the other hand, Mr. S. S. Adhikari, learned Brief Holder, submits that order of Magistrate rejecting the application seeking permission to take sample was not interlocutory order and was final order, as far as the question of taking of sample of hairs is concerned. Therefore, revision before the Sessions Judge was maintainable. 5. Learned counsel appearing for the parties fairly submitted that this Court need not to enter into the question whether revision was maintainable before the Sessions Judge; since this Court has inherent powers under Section 482, Cr.P.C. to examine the correctness of orders passed by the Sessions Judge or Magistrate, therefore, this Court should treat present revision under Section 482, Cr.P.C. and should examine the question as to whether direction should be issued to take sample of the hairs of the accused. 6. As suggested by learned counsel for both the parties, I treat this revision as a petition under Section 482, Cr.P.C. and am proceeding to examine as to whether direction to give sample of the hairs of the accused, in the facts and circumstances of case, is just and proper. 7. Section 53, Cr.P.C. reads 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 for that purpose. (2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of a female registered medical practitioner. Explanation:- In this Section and in Sections 53-A and 54– (a) 'Examination' shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hairs samples and finger nail clippings by the used of modern and scientific techniques including DNA profiling and such other tests, which the registered medical practitioner thinks necessary. (b) 'Registered medical practitioner' means a medical practitioner who possesses any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register." 8. Having perused Section 53, Cr.P.C., I have no hesitation to hold that when a person is arrested on a charge of committing an offence and court finds reasonable ground for believing that an examination of person of accused will afford evidence as to the commission of an offence, then learned Magistrate must permit examination of the person by Registered Medical Practitioner. 9. By way of 2006 amendment, explanation was added to Section 53, Cr.P.C. to say 'examination' shall include examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair sample and finger nail clippings by using modern and scientific technique including such tests which the Registered Medical Practitioner thinks necessary in a particular case. 10. In view of the explanation added to Section 53, Cr.P.C. sample of hairs can be taken under the order of Court if there seems to be reasonable ground for believing that examination of the accused will afford evidence as to the commission of offence. It is no more res integra that even after filing of charge-sheet, further investigation can be carried out by the investigating agency with or without permission of the court. 11. As per prosecution story, some hairs were recovered from the palm of deceased Simpy and accused petitioner is charged with the murder of Simpy. In such circumstances, there seems to be reasonable ground to direct the accused to give his hairs for comparison with the hairs, so recovered from the palm of deceased Simpy, which will throw sufficient light on the question of commission of offence. 12. In such circumstances, there seems to be reasonable ground to direct the accused to give his hairs for comparison with the hairs, so recovered from the palm of deceased Simpy, which will throw sufficient light on the question of commission of offence. 12. I am of considered opinion that if at the first instance, Investigating Officer failed to take sample through Registered Medical Practitioner within the time prescribed by the Court on showing sufficient reasons, time may be extended or fresh permission can be granted. In the opinion of this Court, neither innocent should be punished nor guilty should be acquitted, on hyper technical ground. To do complete justice court must pass appropriate orders to prevent miscarriage of justice. To find out as to whether accused petitioner was involved in the murder of Simpy, comparison of sample hairs of accused with the hairs, so recovered from the palm of deceased Simpy, seems to be justified to do complete justice. 13. Mr. R.S. Sammal, learned counsel for the accused submits that to invoke the provisions of Section 53, Cr.P.C. accused must be under arrest. He further contends that since accused has already been enlarged on bail, therefore, he should not be deemed to be under arrest and at this stage, no order can be passed under Section 53, Cr.P.C. 14. This is now settled position of law that even if, an accused is released on anticipatory or regular bail, he will be considered having been arrested for the purpose of Section 53 of the Code. See Selvi v. State of Karnataka, reported in 2010 (7) SCC 263 : ( AIR 2010 SC 1974 ). 15. Consequently, present petition is disposed of with a direction that accused petitioner shall remain present before the Medical Officer, Government Hospital, Kashipur, on 05.06.2013 and Medical Officer, in the presence of Investigating Officer, shall examine the accused and shall take his hairs for examination/comparison with the hairs, so recovered from the palm of deceased Simpy. Order accordingly.