ORDER : 1. The petitioner has filed the present CRMP under Section 482 read with Section 53-A of Code of Criminal Procedure for conducting a Deoxyribonucleic Acid (DNA) Profiling Test of accused/respondent No. 3 and first child of petitioner in FIR No. 27/2022 registered at Police Station- Sukma on 10.05.2022 for commission of offence punishable under Section 376(2) ¼<½¼>½ 506 & 323 of I.P.C, in Session Trial No. 113/2022 (State of Chhattisgarh Vs. Dr. Sukhdev Singh Guraya) pending before Additional Sessions Judge (F.T.C.), South Bastar, Dantewada (C.G.). 2. Brief facts as reflected from record are that the complainant/petitioner has lodged a complaint in Police Station- Sukma stating that she was resident of Sukma and before her marriage, she was residing with her mother at Sukma. When the petitioner was aged about 12-13 years, her mother used to visit respondent No. 3 for her treatment. Respondent No. 3 used to molest her. He used to commit sexual intercourse with the petitioner against her will, exploited physically, abused and threatened her. Respondent No. 3 committed sexual intercourse with the petitioner first time when she was aged about 13 years and continued the same from year 2005 till January, 2019 and also threatened to kill her and her mother. It has been further contended that the petitioner was married at the age of 18 years on 18.11.2010 to one Sohan Singh and moved village- Pipariya, District- Hoshangabad, Madhya Pradesh. The petitioner used to visit her mother at her home town Sukma and when the petitioner used to visit her mother home at Sukma, respondent No. 3 used to commit sexual intercourse against her will due to which, her elder daughter was born on 04.11.2011 whereas her younger daughter was born from her husband. It has been further contended that on 10.01.2019 at around 2.30 p.m., respondent No. 3 committed sexual intercourse with the petitioner in his house situated above his clinic at Sukma and on protesting, respondent No. 3 had beaten the petitioner with hands and fists. On the basis of complaint lodged by the petitioner, FIR has been registered against accused/respondent No. 3 for commission of offence as aforestated and he has been arrested on 11.05.2022. After due investigation, recording of statement, medical examination, final report has been submitted by the police before the concerned Magistrate on 07.07.2022 and the charges have been framed on 07.09.2022. 3. After due investigation, recording of statement, medical examination, final report has been submitted by the police before the concerned Magistrate on 07.07.2022 and the charges have been framed on 07.09.2022. 3. It has been further contended that after arrest on 11.05.2022, respondent No. 3 had given his consent for conducting DNA profiling test along with other medical examination. The Police on 11.05.2022 filed an application before learned Chief Judicial Magistrate, Sukma for collecting DNA samples of the petitioner, her daughter and respondent No. 3, but the learned Chief Judicial Magistrate vide order dated 12.05.2022 rejected the same stating that the same is not feasible at this stage. The order dated 12.05.2022 passed by the Chief Judicial Magistrate was challenged by the State by filing revision petitioner before learned Sessions Judge, Dantewada wherein the learned Sessions Judge vide order dated 15.06.2022 has set aside the order passed by the learned Chief Judicial Magistrate, Sukma and directed for collecting blood sample of complainant, her daughter and respondent No. 3 and thereafter pass fresh order. The learned revisional court has also observed that respondent No. 3 is not bound with the order, it is for him to give consent or not for DNA test and what will be the effect, if consent was not given, that will be considered after completion of trial. 4. The Chief Judicial Magistrate, Sukma vide order dated 27.06.2022, directed for collecting sample of the petitioner and her daughter as they have given consent without being influenced or pressure but respondent No. 3 has denied to give his blood sample. Accordingly, the learned Chief Judicial Magistrate directed Investigating Officer to take necessary steps for conducting DNA test. Since respondent No. 3 has not given his consent for conducting DNA test, the petitioner has filed this petition for issuing direction to conduct DNA test of respondent No. 3 including the petitioner and her daughter. 5. Learned counsel for the petitioner would submit that looking to the offence committed by respondent No. 3, it is necessary to conduct DNA test which will form basic and essential evidence for proving case of the prosecution. He would further submit that on 11.05.2022 respondent No. 3 had given consent but at a later stage he has withdrawn the same. Learned counsel for the petitioner would submit that looking to the offence committed by respondent No. 3, it is necessary to conduct DNA test which will form basic and essential evidence for proving case of the prosecution. He would further submit that on 11.05.2022 respondent No. 3 had given consent but at a later stage he has withdrawn the same. He would further submit that the personal life and liberty of respondent No. 3 shall not come underway as the allegation leveled against him is very serious and it is very much required to bring out the truth. He would further submit that the percentage and legitimacy of minor daughter of the petitioner also shall not come in question as the petitioner is mother. The petitioner, petitioner's husband along with both the daughters are living together in love, care and harmony and would pray that a direction be issued to the concerned authorities to conduct DNA profile test of respondent No. 3 including the petitioner and her daughter. To substantiate his submission, he would refer to the judgment rendered by Hon’ble the Supreme Court in case of Rajendra Pralhadrao Wasnik Vs. State of Maharashtra reported in (2018) 14 SCR 585 and Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & others reported in (2014) SCR 120. 6. On the other hand, learned counsel for State/respondents No. 1 to 2 would submit that no case is made out for entertaining the case under Section 482 of the Cr.P.C. and would pray for dismissal of the writ petition. 7. Learned counsel for accused/respondent No. 3 would submit that respondent No. 3 is innocent and has been falsely implicated in the crime in question and would object for conducting the DNA test of respondent No. 3. He would further submit that by ordering for conducting DNA test, the paternity of the first girl child of the victim will be adversely affected. He would further submit that the DNA test in criminal case cannot be directed as a matter of course merely because something is permissible under the law. He would further submit that the DNA profile test is not only the remedy to convict an accused whereas there are other strong evidence i.e. statement of victim and other corroborative evidences are available. He would further submit that the DNA profile test is not only the remedy to convict an accused whereas there are other strong evidence i.e. statement of victim and other corroborative evidences are available. He would also submit that conducting DNA test would have effect to physical anatomy of the accused and is also against the personal liberty as provided under Article 21 of the Constitution of India. He would further submit that the marriage of the victim was solemnized on 18.11.2010 with one Sohan Sigh and on 04.11.2011, the victim gave birth to first child during subsistence and continuation of valid marriage, therefore, the same is conclusive piece of evidence and proved the legitimacy of the child. He would further submit that the victim was examined on 17.02.2023 and is now avoiding her cross-examination and by this petition, she is seeking DNA profile test of respondent No. 3 whereas the first daughter was born due to subsistence of valid marriage with one Sohan Singh, therefore, the direction of DNA test would not only affect the personal liberty of the accused/respondent No. 3 but also affect the legitimacy and paternity of a minor girl who is aged about 12 years and even she is not made party to the case and would pray for dismissal of the petition. To substantiate his submission, he would refer to the judgment passed by Hon'ble the Supreme Court in case of Inayath Ali & others Vs. State of Telangan reported in (2022) SCC Online SC 1867 and the judgment passed by Coordinate Bench of this Court in case of Dilesh Nishad Vs. State of Chhattisgarh (CRA No. 1266/2019, decided on 17.08.2023). 8. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 9. The record of the case would show that the victim in her evidence as well as application submitted before the learned Additional Sessions Judge, Dantewada has also prayed for conducting DNA test of respondent No. 3. The complainant has also submitted written complaint before the Police Station- Sukma wherein she has also reiterated that respondent No. 3 has made physical relationship with her from 2005 to 2019 and because of their physical relationship, the first girl child was born, as such to prove her contention, she is praying for conducting of DNA test. The complainant has also submitted written complaint before the Police Station- Sukma wherein she has also reiterated that respondent No. 3 has made physical relationship with her from 2005 to 2019 and because of their physical relationship, the first girl child was born, as such to prove her contention, she is praying for conducting of DNA test. The victim in her evidence before the trial Court has also taken a specific stand that she became pregnant because of the sexual intercourse committed by respondent No. 3 though the cross-examination of the victim could not be completed. On above factual foundation, it is to be determined by this Court whether order for conducting DNA test can be passed or not. 10. It is well settled position of law that the order for DNA test cannot be passed in routine manner but it can be passed only when an exceptional case is made out.. Hon'ble the Surpeme Court in case of Inayath Ali & others Vs. State of Telangana reported in (2022) SCC Online SC 1867 has held as under:- “6. In the present proceeding, we are taking two factors into account which have been ignored by the Trial Court as also the Revisional Court. The Trial Court allowed the application of the respondent no.2 mechanically, on the premise that the DNA fingerprint test is permissible under the law. High Court has also proceeded on that basis, referring to different authorities including the case of Dipanwita Roy v. Ronobroto Roy [ 2015 (1) SCC 365 ]. The ratio of this case was also examined by the Coordinate Bench in the decision of Ashok Kumar (supra). 7. The first factor, which, in our opinion, is of significance, is that in the judgment under appeal, blood sampling of the children was directed, who were not parties to the proceeding nor were their status required to be examined in the complaint of the respondent no.2. This raised doubt on their legitimacy of being borne to legally wedded parents and such directions, if carried out, have the potential of exposing them to inheritance related complication. Section 112 of the Evidence Act, also gives a protective cover from allegations of this nature. This raised doubt on their legitimacy of being borne to legally wedded parents and such directions, if carried out, have the potential of exposing them to inheritance related complication. Section 112 of the Evidence Act, also gives a protective cover from allegations of this nature. The said provision stipulates: “Birth during marriage, conclusive proof of legitimacy.— The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.” 8. In our opinion, the Trial Court as also the Revisional Court had completely ignored the said factor and proceeded as if the children were material objects who could be sent for forensic analysis. The other factor, in our opinion, which was ignored by the said two Courts is that the paternity of the children was not in question in the subject proceeding. 9. The substance of the complaint was not related to paternity of the children of the respondent no.2 but the question was whether the offences under the aforesaid provisions of the 1860 Code was committed against her or not. The paternity of the two daughters of the respondent no.2 is a collateral factor to the allegations on which the criminal case is otherwise founded. On the basis of the available materials, in our opinion, the case out of which this proceeding arises could be decided without considering the DNA test report. This was the reasoning which was considered by the Coordinate Bench in the case of Ashok Kumar (supra), though that was a civil suit. Merely because something is permissible under the law cannot be directed as a matter of course to be performed particularly when a direction to that effect would be invasive to the physical autonomy of a person. The consequence thereof would not be confined to the question as to whether such an order would result in testimonial compulsion, but encompasses right to privacy as well. The consequence thereof would not be confined to the question as to whether such an order would result in testimonial compulsion, but encompasses right to privacy as well. Such direction would violate the privacy right of the persons subjected to such tests and could be prejudicial to the future of the two children who were also sought to be brought within the ambit of the Trial Court’s direction.” 11. Hon'ble Division Bench of this Court in case of Kirti Dewangan Vs. Arjun Kumar Dewangan reported in MANU/CG/0531/2023 has held as under:- “15. Subsequently, the Supreme Court in case of Dipanwita Roy v. Ronobroto Roy (2015) 1 SCC 365 has reiterated the principles laid down in case of Bhabani Prasad Jena v. Orissa State Commission for Women (2010) 8 SCC 633 , which is reproduced herein below : “14. A similar issue case to be adjudicated upon by this Court in Bhabani Prasad Jena v. Orissa State Commission for Women, wherein this Court held as under : 21. In a matter where paternity of a child is in issue before the court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in the use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. 22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under section 112 of the Evidence Act; pros and cons of such order and the test of 'eminent need' whether it is not possible for the court to reach the truth without use of such test. 23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu v. State of W.P. (1993) 3 SCC 418 and Sharda v. Dharampal, 2003 (4) SCC 493 . In Goutam Kundu [ (1993) 3 SCC 418 ], it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda [ 2003 (4) SCC 493 ] while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course.” Therefore, what is the principle emerges that depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination to determine the veracity of the allegations, if it was eminently needed.” 12. Again Hon'ble the Supreme Court in case of Rajendra Pralhadrao Wasnik Vs. State of Maharashtra reported in (2018) 14 SCR 585 has considered the issue and has held that if reasonable grounds exist, then a medical examination as postulated by Section 53-A(2) of the Cr.P.C. must be conducted and that included examination of the accused and description of material taken from the person of the accused for DNA profiling test. Hon’ble the Supreme Court has held as under:- “49. While Section 53-A of the Cr.P.C. is not mandatory, it certainly requires a positive decision to be taken. Hon’ble the Supreme Court has held as under:- “49. While Section 53-A of the Cr.P.C. is not mandatory, it certainly requires a positive decision to be taken. There must be reasonable grounds for believing that the examination of a person will afford evidence as to the commission of an offence of rape or an attempt to commit rape. If reasonable grounds exist, then a medical examination as postulated by Section 53-A(2) of the Cr.P.C. must be conducted and that includes examination of the accused and description of material taken from the person of the accused for DNA profiling. Looked at from another point of view, if there are reasonable grounds for believing that an examination of the accused will not afford evidence as to the commission of an offence as mentioned above, it is quite unlikely that a charge-sheet would even be filed against the accused for committing an offence of rape or attempt to rape. 50. Similarly, Section 164-A of the Cr.P.C. requires, wherever possible, for the medical examination of a victim of rape. Of course, the consent of the victim is necessary and the person conducting the examination must be competent to medically examine the victim. Again, one of the requirements of the medical examination is an examination of the victim and description of material taken from the person of the woman for DNA profiling. 51. There can be no doubt that there have been remarkable technological advancements in forensic science and in scientific investigations. These must be made fully use of and the somewhat archaic methods of investigations must be given up. In Krishna Kumar Malik v. State of Haryana this Court referred to Section 53-A of the Cr.P.C. and observed that after the enactment of this provision with effect from 23 rd June, 2006 “it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused”. 52. The necessity of taking advantage of the advancement in scientific investigation was the subject matter of discussion in State of Gujarat v. Kishanbhai. In that case, this Court lamented the failure of the investigating agency to take advantage of scientific investigations. It was said: “12.7.5. There has now been a great advancement in scientific investigation on the instant aspect of the matter. In that case, this Court lamented the failure of the investigating agency to take advantage of scientific investigations. It was said: “12.7.5. There has now been a great advancement in scientific investigation on the instant aspect of the matter. The investigating agency ought to have sought DNA profiling of the blood samples, which would have given a clear picture whether or not the blood of the victim [deleted] was, in fact on the clothes of the respondent- accused Kishanbhai. This scientific investigation would have unquestionably determined whether or not the respondent-accused was linked with the crime. Additionally, DNA profiling of the (2011) 7 SCC (2014) 5 SCC 108 blood found on the knife used in the commission of the crime (which the respondent- accused Kishanbhai had allegedly stolen from Dineshbhai Karsanbhai Thakore, PW 6), would have uncontrovertibly determined, whether or not the said knife had been used for severing the legs of the victim [deleted], to remove her anklets. 12.7.6. In spite of so much advancement in the field of forensic science, the investigating agency seriously erred in not carrying out an effective investigation to genuinely determine the culpability of the respondent- accused Kishanbhai.” (Emphasis supplied by us). 53. More recently, in Mukesh and Anr. v. State (NCT of Delhi) there is a brief reference to Section 53-A and Section 164-A of the Cr.P.C. What is important in this brief reference is the acknowledgment that DNA evidence is being increasingly relied upon by courts. It was observed in paragraphs 216 and 217 as follows: “216. In our country also like several other developed and developing countries, DNA evidence is being increasingly relied upon by courts. After the amendment in the Criminal Procedure Code by the insertion of Section 53A by Act 25 of 2005, DNA profiling has now become a party of the statutory scheme. Section 53A relates to the examination of a person accused of rape by a medical practitioner.” “217. Similarly, under Section 164A inserted by Act 25 of 2005, for medical examination of the victim of rape, the description of material taken from the person of the woman for DNA profiling is must.” (Emphasis supplied by us). 54. For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is (2017) 6 SCC 1 available in the country. 54. For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is (2017) 6 SCC 1 available in the country. The prosecution would be well advised to take advantage of this, particularly in view of the provisions of Section 53-A and Section 164-A of the Cr.P.C. We are not going to the extent of suggesting that if there is no DNA profiling, the prosecution case cannot be proved but we are certainly of the view that where DNA profiling has not been done or it is held back from the Trial Court, an adverse consequence would follow for the prosecution.” 13. Hon'ble the Surpeme Court in case of Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & others reported in (2014) SCR 120 has held as under:- “16. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.” 14. Hon’ble the Supreme Court in case of Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia reported in 2023/INSC/146 has considered the importance of DNA testing and held as under:- “11 . Hon’ble the Supreme Court in case of Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia reported in 2023/INSC/146 has considered the importance of DNA testing and held as under:- “11 . With the advancement of science, DNA profiling technology which is a tool of forensic science can, in case of disputed paternity of a child by mere comparison of DNA obtained from the body fluid or body tissues of the child with his parents, offer infallible evidence of biological parentage. But, it is not always necessary to conduct a DNA test to ascertain whether a particular child was born to a particular person, however, the burden of proof is on the husband who alleges illegitimacy. He has to establish the fact that he has not fathered the child born to his wife which is a negative plea by positive proof in accordance with Section 112 of the Evidence Act. 11.1. A Family Court, no doubt, has the power to direct a person to undergo medical tests, including a DNA test and such an order would not be in violation of the right to personal liberty Under Article 21 of the Constitution, vide Sharda. However, the Court should exercise such power only when it is expedient in the interest of justice to do so, and when the fact situation in a given case warrants such an exercise. Thus, an order directing that a minor child be subjected to DNA test should not be passed mechanically in each and every case.” 15. Now coming back to the facts of the case, the complainant from very beginning has taken a stand that she was subjected to sexual harassment by respondent No. 3 and because of the physical relationship between the petitioner and respondent No. 3, the first girl child was born which is bone contention of the dispute between the parties and the whole controversy moves around it, as such to collect true and correct fact and to decide the controversy, only scientific mode is available for directing DNA test. It is pertinent to mention here that the victim and her minor girl have already given consent for DNA test, as such the submission made by the learned counsel for respondent No. 3 that the paternity of the minor girl will be adversely affected , deserves to be rejected and accordingly, it is rejected. It is pertinent to mention here that the victim and her minor girl have already given consent for DNA test, as such the submission made by the learned counsel for respondent No. 3 that the paternity of the minor girl will be adversely affected , deserves to be rejected and accordingly, it is rejected. The facts and circumstances of the case require a scientific analysis of fact which can be done through directing for DNA test. Thus, the circumstances are so prevailing and no other mode to unearth the truth, is available except to issue direction for conducting DNA test. 16. Considering the facts and circumstances of the case, it is directed that the prosecution will take necessary steps for conducting a DNA test of the petitioner, her daughter and respondent No. 3. 17. With the aforesaid observation and direction, the instant petition is allowed.