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2013 DIGILAW 684 (JHR)

Dilip Baskey v. State of Jharkhand

2013-06-14

H.C.MISHRA

body2013
JUDGMENT Heard learned counsel for the petitioner and learned A.P.P. for the State. 2. The petitioner is aggrieved by the order dated 23.2.2013 passed by the learned Principal Judge, Family Court, Dumka, in Criminal Misc. Case No. 18 of 2007, whereby the application filed by the petitioner for DNA test for ascertaining the parentage of the petitioner, has been rejected by the Court below. 3. From perusal of the impugned order, it appears that one Chaitali Baskey, claiming herself to the daughter of the petitioner, has the filed application for maintenance under Section 125 Cr.P.C., alleging that the petitioner had established physical relationship with her mother, due to which, she became pregnant and subsequently, she gave birth to the applicant. Claiming herself to be the illegitimate child of the petitioner, the application for maintenance under Section 125 of the Cr.P.C., has been filed. 4. The impugned order shows that at the very initial stage, the petitioner denied the allegation and filed an application for DNA test of the petitioner and the applicant, as also the mother of the applicant, for establishing the parentage of the petitioner and the said application was dismissed at that time giving liberty to the petitioner to move the application afresh at the time of evidence of the petitioner. Subsequently, after closing the evidence of the applicant, the case was fixed for evidence of the petitioner and during the pendency of the case at the evidence stage of the petitioner, the petitioner again filed an application for DNA test on 20.2.2013. The impugned order shows that no rejoinder was filed by the applicant, rather at the time of hearing, only the advocate of the applicant objected the prayer of the petitioner and the application of the petitioner was rejected solely on the ground that the case was pending for evidence of the petitioner for about one and half years and in order to delay the disposal of the case, the said application had been filed by the petitioner. The Court below has accordingly, found no merit in the application. 5. Learned counsel for the petitioner has submitted that the impugned order passed by the Court below cannot be sustained in the eyes of law. The Court below has accordingly, found no merit in the application. 5. Learned counsel for the petitioner has submitted that the impugned order passed by the Court below cannot be sustained in the eyes of law. The petitioner is denying the allegation since the very beginning and at the initial stage, he had filed an application for DNA test, which was rejected giving the liberty to the petitioner to move at the appropriate time of his evidence and when the petitioner filed the application at the time of his evidence, the same has been rejected solely on the ground that the petitioner is delaying the trial. The impugned order also shows that the Court was itself vacant for about five months and as such, no such responsibility can be saddled on the petitioner. Learned counsel has accordingly, submitted that the impugned order cannot be sustained in the eyes of law. 6. Learned A.P.P. for the State, on the other hand, has submitted that there is no illegality in the impugned order, as the order clearly shows that the said application was filed after one and half years of closing the evidence of the applicant in the case. 7. After having heard learned counsels for both sides and upon going through the record, I find that the petitioner is making the prayer for DNA test from the very initial stage. It is one thing to reject the application of the petitioner on merits and it is another thing to reject the same on the ground of delaying the disposal of the case. In the facts of the case, when the petitioner is denying the allegation from the very beginning and he is praying for DNA test, his application ought to have been decided by the Court on merits after obtaining the view of the applicant on the said application. In the facts of the case, the applicant may also like to undergo the DNA test to establish the parentage of the petitioner, but it appears from the impugned order that the application of the petitioner was only objected by the counsel of the applicant when it was pressed. 8. In view of the aforementioned discussions, the impugned order dated 23.2.2013 passed by learned Principal Judge, Family Court, Dumka, in Cr. Misc. 8. In view of the aforementioned discussions, the impugned order dated 23.2.2013 passed by learned Principal Judge, Family Court, Dumka, in Cr. Misc. Case No. 18 of 2007 is, hereby, set aside and the Court below is directed to pass the order afresh on merits, after obtaining the view of the applicant in the Court below, on the application filed by the petitioner whether she is willing to undergo the DNA test or not. 9. With these observations and directions, this criminal revision application is disposed of.