The Circuit bench of Hon’ble Calcutta High Court at Port Blair determined that using Criminal Procedure Code (CrPC) Section 53A, which allows a medical professional to question a person accused of rape, to close gaps in the prosecution’s case would violate Article 21 of the Constitution.
Justice Moushumi Bhattacharya held that the facts of the case make it evident that the prosecution applied for DNA profiling in an attempt to strengthen its case, and the learned court granted the request after considering the paternity problem. Any
deviation from the Cr.P.C. procedure or establishment of an undocumented procedure gives rise to an assumption of arbitrariness, which infringes upon the rights of the accused. Article 21 of the Constitution guarantees everyone the right to a trial that adheres to the legal process and embodies the idea of a fair trial. It is not acceptable to weaken or distort the fundamentals of criminal law to support social or civil issues that are incidental to the case.
The court explained “The above facts constitute the lacunae of the investigation. Ignoring the gaps in the investigation in the form of collecting material contemplated under section 53-A gives rise to a presumption that the prosecution sought to fill up the gaps by invoking section 53- A after the stage of investigation was over. ..”.
The Court upheld its authority to order medical examination of its own motion by citing Selvi v. State of Karnataka, (2010) 7 SCC 263. However, it should be noted that Selvi’s paragraph 166 expressly indicates that an arrested individual may be subjected to a medical examination while the investigation is ongoing.
The prosecution requested in this case that blood samples be taken from the accused, the victim girl, and the victim girl’s young child in order to perform DNA profiling. According to the ruling, the victim girl gave permission for her blood sample and her baby’s sample to be collected for DNA profiling when she appeared in court on the day the order was made.
CASE NAME : SANJAY BISWAS v. THE STATE AND ANOTHER
NAME :RIYA KRISHNA , COURSE : BBA LLB Hons , COLLEGE :MAHARASHTRA NATIONAL LAW UNIVERSITY, AURANGABAD, INTERN UNDER LEGAL VIDHIYA.
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