DNA test on rape accused to ascertain paternity not hit by self-incrimination under Article 20(3): Karnataka High Court

Drawing blood sample of a rape accused for the purpose of DNA test to ascertain paternity does not amount to violation of fundamental right against self-incrimination under Article 20(3) of the Constitution, the Karnataka High Court has held [Malappa @ Malingaraya vs. State of Karnataka]..Justice HP Sandesh dismissed the petition filed by a man four years after a DNA report confirmed him to be the biological father of a child born after he raped the survivor. While holding that giving the blood sample towards DNA testing does not amount to self-incrimination, the single-Judge observed:"Only in order to overcome the positive report of the DNA, the petitioner has approached this Court by invoking the writ jurisdiction seeking the relief to quash the order as well as the DNA report. The very contention of the learned counsel for the petitioner that it amounts to violation of Article 20(3) of the Constitution of India and also in violation of procedure contemplated under Section 164 of Cr.P.C. cannot be accepted."The Court relied on several precedents to state that DNA tests are not a matter of routine and that courts call for it as per the facts and circumstances of cases. Pertinently, the Court also placed reliance on the amendments to the explanation of Section 53 and insertion of Section 53A to the Code of Criminal Procedure (CrPC)."We must stress that DNA profiling technique has been expressly included among the various forms of medical examination in the amended explanation to Section 53 of CrPC," the Court made it clear.Section 53A empowers a registered medical practitioner acting on the request of a police officer not below the rank of a sub-inspector to examine an accused person and to use force which is reasonable for the same, the Court noted.Notably, on the petitioner's argument that providing the samples for the same amounts to a violation of the right against self-incrimination in Article 20, the Court said that if "the self-incriminatory information has been given by an accused person without any threat, that will not be hit by the provisions of Clause (3) of Article 20 of Constitution of India for the reason that there has been no compulsion.".The case against the accused was that he took her for coolie work and had forcible intercourse with her on the promise of marriage. The survivor became pregnant and when he refused to marry her, he was booked for offences punishable under Sections 504 (intentional insult with intent to provoke breach of peace), 506 (criminal intimidation), 417 (cheating) and 376 (rape) of Indian Penal Code. After the filing of chargesheet, an application was filed before the Magistrate seeking permission to draw t blood samples to ascertain his fatherhood of the child born out of the alleged rape, which was allowed. The DNA test confirmed the accused as the father of the child. The accused argued in the instant case that the said process of obtaining the DNA report was against the principle of natural justice and violative of Article 20(3) of the Constitution as the lower court did not apply its mind regarding the petitioner's voluntariness in consenting to the test.The prosecution emphasised how the Magistrate had explained the process to him in the hearing, the order sheet mentioning the consent taken, and that he had not expressed any reservations then.He cannot, therefore, be allowed to raised any objections after four years having lapsed, it was contended.The Court, in rejecting the accused's contentions, noted how prior to 2005 there was no specific provision for conducting DNA tests.However, after amendments to CrPC Section 53 and insertion of Section 53A, examination of an accused can include modern and scientific techniques including DNA profiling and such other tests which the concerned registered medical practitioner thinks would be necessary in a particular case.The Court in fact championed the practice of DNA profiling in criminal cases."Creating and maintaining DNA profiles of offenders and suspects are useful practices since newly obtained DNA samples can be readily matched with the existing profiles that are already in the possession of the law enforcement agencies. The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts and further held that the taking and retention of DNA samples, which are in the nature of physical evidence does not face constitutional hurdles in the Indian context," the judgment said.However, it also clarified that if DNA profiling technique is further developed and used for testimonial purposes, then it could face challenges in the judicial domain.The single-judge the proceeded to place reliance on the judgments of the Supreme Court in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women in which the apex court had held that DNA test would be permissible to determine veracity of allegations which constitute one of the grounds on which the party concerned could win or lose the case.The Court, therefore, ruled that there was no error committed by the Magistrate in ordering the DNA test and dismissed the petition. Advocate Mahantesh Patil appeared for the petitioner. Advocate Gururaj V Hasilkar argued for the respondents..[Read Judgment]