Calcutta High Court (Appellete Side)
Sahida Laskar @ Saida Laskar vs The State Of West Bengal & Another on 8 January, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Ajay Kumar Gupta
C.R.R. 1709 of 2021
Sahida Laskar @ Saida Laskar
Versus
The State of West Bengal & Another
For the Petitioner : Md. Shakir, Adv.
Heard on : 27.11.2024
Judgment on : 08.01.2025
Ajay Kumar Gupta, J:
1.
The present Criminal Revisional application has been filed
under Section 482 read with Sections 398/401 of the Code of
Criminal Procedure, 1973 assailing the Impugned Order dated
22.09.2020 passed by the Learned Additional District Judge, Special
2
Court under E.C. Act at Alipore, thereby, inter alia, rejected the
prayer for DNA test filed by the petitioner in connection with Sessions
Trial Case No. 1(3) of 2012 corresponding to BGR Case No.
6471/2009 arising out of Basanti Police Station Case No. 373 dated
26.12.2009 under Sections 376/417 of the Indian Penal Code, 1860
pending before the Court of the Learned Additional District Judge,
Special Court under E.C. Act at Alipore.
2. The brief facts are relevant for the purpose of disposal of the
present Criminal Revisional application are that the petitioner being
the de-facto complainant/victim woman had lodged a complaint on
11.03.2009 in afternoon to the effect that when she went to bring her
goat back at an abandoned place of her village, the accused/opposite
party no. 2 committed rape upon her forcibly. The petitioner narrated
the incident of rape before the family members of the opposite party
no. 2, where the opposite party no. 2 admitted the same and,
accordingly, his family members promised to get married her with the
accused/opposite party no. 2 but later on they refused.
3. After the refusal of marriage by the accused/opposite party
no. 2, the petitioner was compelled to file a petition of complaint
under Section 156(3) CrPC before the Learned Additional Chief
Judicial Magistrate, Alipore on 02.12.2009. Upon being satisfied, the
3
Learned Court below allowed the petitioner’s prayer and directed the
Officer-in-Charge, Basanti Police Station to lodge an FIR against the
accused and his family members. Consequently, Basanti P.S. Case
No. 373/2009 dated 26.12.2009 under Sections 376/120B of the
Indian Penal Code, 1860 was registered. When the FIR was lodged,
the petitioner was pregnant of 6 months gestational period and later
on, she gave birth of a male child on 05.03.2010 named as “Master
X”.
4. On 22.03.2010, the Investigating Officer submitted the
charge sheet before the Learned Court below and the said case was
subsequently committed to the Learned Court of Sessions Judge and,
later, it was transferred to the Learned Additional District Judge,
Special Court under E.C. Act at Alipore for trial. Subsequently,
charge was framed on 16.03.2012 under Sections 376/417 of the IPC
and, thereafter, trial has been commenced.
5. During trial, at the request of the petitioner, the accused
promised to have the victim and her child back to his home once the
trial was concluded. However, in violation of the said promise, the
opposite party no. 2 married another woman thereby depriving the
petitioner and her minor son. Even after marriage, the
accused/opposite party no. 2 provided maintenance to the petitioner
4
and her minor son for a few years. However, from the month of June,
2019, the accused stopped providing any maintenance to the
petitioner and her minor son under the pressure and instigation of
his second wife and later the opposite party no. 2 denied to recognize
the petitioner and her minor son as his wife and son respectively.
6. In the meantime, trial proceeded and the examination of the
prosecution witnesses was nearing completion. As such, the
petitioner herein filed an application praying for conducting DNA test
of the accused person/opposite party no. 2 in order to ascertain the
paternity of the child on 25th March, 2019. However, the Learned
Judge rejected the said prayer for the DNA Test.
7. It was held by the Learned Trial Court that the Section 376
of the IPC is the provision concerning rape. In case of rape, medical
evidence is not always conclusive or final but medical evidence places
the role of secondary evidence. If the Court finds that evidence
provided by the prosecutrix is sufficient to establish the truth of
prosecution case, there is a strong likelihood of conviction based
solely on the evidence of prosecution.
8. Being aggrieved by the said order, the petitioner has
approached before this Court by filing this Criminal Revisional
5
application reiterating the contentions raised before the Learned Trial
Court.
9. During the course of arguments, the learned counsel
appearing on behalf of the petitioner contended that the impugned
order is bad in law. The Learned Magistrate, mechanically and
without applying his judicious mind, dismissed the said application.
The Learned Magistrate should have allowed the prayer for DNA test
to uncover the truth of rape and to decide the paternity of the child.
This case is fit to be considered to allow the application for
conducting DNA test to determine the rape and paternity of the child
but the Learned Trial Court erred both in law and facts while passing
the impugned order.
10. Learned counsel appearing on behalf of the petitioner further
argued that the Learned Trial Court failed to appreciate the necessity
for conducting the DNA test of the accused person though it is crucial
to determine the commission of offence of rape and establish that the
child was a result of such offence and thereby squarely jeopardise the
fundamental rights of the petitioner and her son to live with dignity
as guaranteed to them by the Constitution of India especially more
particularly under Articles 14 and 21 of the Constitution of India. In
case of rape or sexual offence, usually finds no eye witness to the
6
incident as a result of which the court has to rely on the oral evidence
of the victim and supported by the medical evidence.
11. It was further submitted by the learned counsel for the
petitioner that the learned Special Judge misconstrued and
misunderstood the law that prayer at the stage of trial for DNA test
cannot be allowed. Therefore, under the facts and circumstances of
the case the DNA test is required to be conducted to prove the fact in
question.
12. On the other hand, none appears on behalf of the opposite
parties despite good service. As such, hearing was concluded exparte
for its disposal.
DISCUSSIONS AND FINDINGS BY THIS COURT:
13. Heard the learned counsel appearing on behalf of the
petitioner and upon perusal of the entire record as well as impugned
order dated 22.09.2020, it appears that charge was framed under
Sections 376/417 of the Indian Penal Code, 1860 and trial was
commenced in the year 2012 and several witnesses have already been
examined. It is an admitted fact that prior to framing of charge or
during investigation, no prayer for holding DNA test was made on the
part of the prosecution. The case was fixed for examination of
7
remaining witnesses including the Investigating Officer. The
prosecution moved an application under Section 311 of the CrPC
praying for holding DNA test of the accused and male child of the
victim born out of the alleged commission of rape. Therefore, the
primary question arises before this Court is that whether DNA test of
the accused and child is necessary for the disposal of the case
initiated under Sections 376/417 of the IPC?
14. The Learned Judge dismissed the said application on three-
fold grounds.
Firstly, the application for a DNA test of the accused was
neither filed nor conducted during the investigation. Even no prayer
was made for DNA test at the time of filing charge sheet or before
framing of charges.
Secondly, the Court may, at any stage of the enquiry, trial
or other proceedings under the CrPC, summon any person as a
witness or examine any person in attendance who was not been
summoned as witness, or recall and re-examine any person already
examined; and such examination of witnesses may be done if it
appears to the Court that the same is especially for the just decision
of the case. This provision as per Section 311 of the CrPC cannot be
8
used for any purpose in any manner prosecution likes i.e. prayer
made for the DNA test of the accused.
Thirdly, Section 311 of the CrPC cannot be invoked to fulfil
the lacuna of the prosecution case when the entire defence case has
been disclosed and no attempt was made by the prosecution to hold
the DNA test at the appropriate stage of investigation or trial.
15. Before deciding the aforesaid issue, this Court would like to
reproduce the Section 311 of the CrPC which reads as under:
S. 311. Power to summon material witness, or
examine person present. –Any Court may, at any
stage of any inquiry, trial or other proceeding under
this Code, summon any person as a witness, or
examine any person in attendance, though not
summoned as a witness, or recall and re-examine
any person already examined; and the Court shall
summon and examine or recall and re-examine any
such person if his evidence appears to it to be
essential to the just decision of the case.
16. In the present case, prosecution tried to bring some
new medical evidence to improve the case of the petitioner
though no such DNA test was earlier conducted or any prayer
was made either during investigation or at the time of filing
charge sheet. Bringing such evidence is definitely would be a
9
further investigation. Whether such prayer for further
investigation is permissible after examination of the witnesses
in trial?
17. The expressions “further investigation”, “reinvestigation”, and
“fresh investigation” all connote different meanings and are entirely
distinguishable in their scope and application.
18. The words “further investigation” find mention in Section
173(8) Cr.P.C. It is worthwhile to note that sub-section (8) in Section
173 did not exist in the Code of Criminal Procedure of 1898. It came
to be inserted in pursuance of the recommendation contained in the
Forty-First Law Commission Report, 1969. Although it was
recommended as sub-section (7) to Section 173, it came to be added
as sub-section (8). The relevant extract of the Report reads as follows:
“14.23. A report under section 173 is normally the
end of the investigation. Sometimes, however, the
police officer after submitting the report under section
173 comes upon evidence bearing on the guilt or
innocence of the accused. We should have thought
that the police officer can collect that evidence and
send it to the magistrate concerned. It appears,
however, that courts have sometimes taken the
narrow view that once a final report under section
10173 has been sent, the police cannot touch the case
again and cannot re-open the investigation. This view
places a hindrance in the way of the investigating
agency, which can be very unfair to the prosecution
and, for that matter, even to the accused. It should be
made clear in Section 173 that the competent police
officer can examine such evidence and send a report
to the magistrate. Copies concerning the fresh
material must of course be furnished to the accused.”
19. As per the Code, the stage referred to in Section 173(8) Cr.P.C.
comes into effect after a Report under Section 173(2) Cr.P.C. is
forwarded by the police officer to the concerned Magistrate upon
completion of the investigation. This provision empowers the police
officer to carry out further investigation if he obtains further
additional evidence, oral or documentary, and to thereafter forward a
further report regarding such evidence. Ordinarily, a police officer
should inform the Court and seek formal permission to conduct
further investigation when fresh facts come to light [Refer: Ram Lal
Narang (Supra)].
20. The word “further” would mean additional, more, or
supplemental. “Further investigation”, therefore, would mean
continuation of the earlier investigation. The Supreme Court has shed
11
light on the expression “further investigation” in the case of
Amrutbhai Shambhubhai Patel (Supra) where it was observed as
under:
“38. …further investigation was a phenomenon where
the investigating officer would obtain further oral or
documentary evidence after the final report had
already been submitted, so much so that the report on
the basis of the subsequent disclosures/discoveries
by way of such evidence would be in consolidation
and continuation of the previous investigation and the
report yielded thereby….”
21. The law regarding occasion to undertake further
investigation was propounded by the Supreme Court in the case of
Kishan Lal v. Dharmendra Bafna and Another1, wherein it was
held as follows:
“22. The investigating officer may exercise his
statutory power of further investigation in several
situations as, for example, when new facts come to its
notice; when certain aspects of the matter had not
been considered by him and he found that further
investigation is necessary to be carried out from a
1
(2009) 7 SCC 685
12
different angle(s) keeping in view the fact that new or
further materials came to its notice. Apart from the
aforementioned grounds, the learned Magistrate or
the superior courts can direct further investigation, if
the investigation is found to be tainted and/or
otherwise unfair or is otherwise necessary in the
ends of justice. …”
(Emphasis added)
22. Section 173(8) Cr.P.C. makes it clear that further
investigation is permissible, however, reinvestigation or fresh
investigation is prohibited. The Supreme Court distinguished
“further investigation” from “reinvestigation” and “fresh
investigation” in its decision in the case of K. Chandrasekhar v.
State of Kerala and Others2, where it was observed as follows:
“24…… Further investigation therefore is the
continuation of the earlier investigation and not a
fresh investigation or reinvestigation to be started ab
initio wiping out the earlier investigation altogether. In
drawing this conclusion, we have also drawn
inspiration from the fact that sub-section (8) clearly
envisages that on completion of further investigation
the investigating agency has to forward to the2
(1998) 5 SCC 223
13Magistrate a “further report or reports – and not fresh
report or reports” – regarding the further evidence
obtained during such investigation. ….”
23. The difference between the three concepts in the
aforementioned terms was reiterated by the Hon’ble Supreme Court
in the case of Rama Chaudhary v. State of Bihar3 where it held as
follows:
“17…. “Further investigation, therefore, is the
continuation of the earlier investigation and not a
fresh investigation or reinvestigation to be started ab
initio wiping out the earlier investigation altogether.”
24. Later, the Hon’ble Supreme Court in the case of Vinay Tyagi
(Supra), while reading into Section 173(8) Cr.P.C. the powers of a
Magistrate to direct “further investigation”, clarified that the
Magistrate has no power to direct “reinvestigation” or “fresh
investigation” (de novo) in a case initiated on the basis of a police
report and such power is available only with Constitutional Courts. It
was further observed:
3
(2009) 6 SCC 346
14“22. “Further investigation is where the investigating
officer obtains further oral or documentary evidence
after the final report has been filed before the Court in
terms of Section 173(8). This power is vested with the
executive. It is the continuation of previous
investigation and, therefore, is understood and
described as ‘further investigation’. The scope of such
investigation is restricted to the discovery of further
oral and documentary evidence. Its purpose is to
bring the true facts before the court even if they are
discovered at a subsequent stage to the primary
investigation. It is commonly described as
“supplementary report”. Supplementary report would
be the correct expression as the subsequent
investigation is meant and intended to supplement
the primary investigation conducted by the
empowered police officer. Another significant feature
of further investigation is that it does not have the
effect of wiping out directly or impliedly the initial
investigation conducted by the investigating agency.
This is a kind of continuation of the previous
investigation. The basis is discovery of fresh evidence
and in continuation of the same offence and chain of
events relating to the same occurrence incidental
thereto. In other words, it has to be understood in
complete contradistinction to a “reinvestigation”
“fresh or de novo investigation”.
15
23. However, in the case of a “fresh investigation”
“reinvestigation or de novo investigation” there has to
be a definite order of the court. The order of the court
unambiguously should state as to whether the
previous investigation, for reasons to be recorded, is
incapable of being acted upon. Neither the
investigating agency nor the Magistrate has any
power to order or conduct “fresh investigation”. This
is primarily for the reason that it would be opposed to
the scheme of the Code. It is essential that even an
order of “fresh/de novo investigation” passed by the
higher judiciary should always be coupled with a
specific direction as to the fate of the investigation
already conducted. The cases where such direction
can be issued are few and far between… xxx
43. At this stage, we may also state another well-
settled canon of the criminal jurisprudence that the
superior courts have the jurisdiction under Section
482 of the Code or even Article 226 of the Constitution
of India to direct “further investigation” “fresh or de
novo” and even “reinvestigation”. “Fresh de novo and
reinvestigation” are synonymous expressions and
their result in law would be the same. The superior
courts are even vested with the power of transferring
investigation from one agency to another, provided
the ends of justice so demand such action. of course,
it is also a settled principle that this power has to be
16exercised by the superior courts very sparingly and
with great circumspection.”
25. Again, in the case of Dharam Pal v. State of Haryana and
Others4, the Supreme Court, while considering the issue of transfer
of investigation and the powers of Constitutional Courts, observed as
under:
“25. …The power to order fresh, de novo or
reinvestigation being vested with the constitutional
courts, the commencement of a trial and examination
of some witnesses cannot be an absolute impediment
for exercising the said constitutional power which is
meant to ensure a fair and just investigation. … It is
the bounden duty of a court of law to uphold the truth
and truth means absence of deceit, absence of fraud
and in a criminal investigation a real and fair
investigation, not an investigation that reveals itself
as a sham one. It is not acceptable. It has to be kept
uppermost in mind that impartial and truthful
investigation is imperative. …”
4
(2016) 4 SCC 160
17
(Emphasis added)
26. Now I proceed to analyze the facts of the present case in light
of the exposition of law outlined hereinabove. Can it be said that the
impugned order of dismissal of application for DNA test is erroneous
on the facts and circumstances of the Present case?
27. The prosecution filed an application under Section 311 of the
CrPC for DNA test of the accused at the stage when the evidence of
prosecution is at the verge of completion. Neither the investigation
was defective nor lacking. The Investigating Officer had not come
across any additional, more or supplemental material. There was no
subsequent disclosure or discovery of any new or additional material
whatsoever. By filing the application, the prosecution was only trying
to bring additional evidence. In the peculiar facts and circumstances
of this case, this Court is of the view that the impugned order of
dismissal of application praying for DNA test at this advance stage of
trial should not be permitted when the additional evidence is not
required for the final conclusion of the proceedings. Even the sole
evidence of prosecutrix is sufficient to convict a person, if found
guilty without reasonable doubt. The flavour of the present case is
18
criminal act punishable under Section 376/417 of the Indian Penal
Code.
28. Examining the issue from another point of view that whether
by passing of the impugned order, any prejudice is caused to the
petitioner. The answer is in negative for the reason that it is not the
case deciding the paternity of the child.
29. In response to the submission of the learned counsel for the
petitioner, this court of the opinion that the order of the trial court for
rejecting the prayer for DNA test is correct because in the case of
Sisu Bhaban vs Joy Yohannan5, the question regarding the
necessity of DNA test in a rape trial was considered.
30. The court held that the cardinal issue to be addressed in a
rape trial is whether there was sexual intercourse against the will and
without the consent of the victim. If the sexual intercourse was with
the consent of the victim, the question is whether the consent was
obtained under circumstances falling under clauses thirdly, fourthly
and fifthly of Section 375 IPC.
31. The court further observed that merely because there was an
allegation by the prosecution that pursuant to the sexual intercourse
5
(2008) 4 KLT 550
19
which the accused had with the victim her child was born, the
question of paternity of the child which has absolutely no nexus with
the alleged offence of rape, cannot arise. Whether the accused is
proved to be the biological father or not was wholly irrelevant about
the fact in issue in the trial.
32. The present case is at the advanced stage of the trial as such
there is no need to conduct DNA test as because conviction can be
awarded only on the basis of sole witness i.e. prosecutrix herself and
other surrounding facts and circumstanced and there is no need for
corroboration of medical evidence, which is secondary evidence.
33. In the case of Afan Ansari vs State of Jharkhand6 and
Dilesh Nishad vs State of Chhatishgarh7. In both the cases, it was
held that for deciding the case under Section 376 IPC, paternity of
the child is not relevant and therefore, there is no need to held DNA
test to prove the charge.
34. Considering the submission of the learned counsel for
Petitioner and under the said facts and circumstances of the case, it
is apt to rely on some decisions of the Hon’ble Supreme Court as
follows:
6
(2022) SCC online JHAR 1649
7
(Manu/CG/1664/2023)
20
35. In the case of Bhabani Prasad Jena v. Orissa State
Commission for Women8 the Hon’ble Supreme Court enunciated
the test of the “eminent need” while considering a prayer for DNA test
of the child. It was a case where in a family dispute, the paternity of a
child was disputed. The State Commission for Women, Orissa issued
orders directing DNA test of a child. The matter reached to the High
Court in a writ petition. The High Court also issued an order directing
that the DNA test of the child shall be conducted. The Supreme Court
considered the question whether the High Court and the State
Commission for Women were justified in ordering a DNA test of the
child. The Supreme Court, after appreciating the rights entitled to the
child, especially the right to privacy, held thus:
“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 an8
(2010) 8 SCC 633
21individual 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. 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.”
36. In the case of K.S. Puttaswamy v. Union of India9 the
Hon’ble Supreme Court declared that the Right to Privacy is a
fundamental right enshrined within the Right to Life and Liberty
9
[(2017) 10 SCC 1]
22
under Article 21 of the Constitution of India. The Supreme Court laid
down the threefold test of Reasonableness while elevating the right to
privacy to the stature of a fundamental right. As per the test, an
action must fulfil the following three prongs to be considered a
reasonable restriction imposed by the procedure established by law:
Legality: Such an action must be supported by the existence of a law
that warrants such action to be taken in the given circumstances.
Necessity: There must be a legitimate State aim. The action must be
one that is pertinent and requisite in the light of the circumstances
that prevail to achieve the aim of the State.
Proportionality: The parameter of proportionality shall be fulfilled on
the establishment of a rational nexus between the objects and the
means adopted to achieve them.
37. In the case of Ashok Kumar v. Raj Gupta10, the Hon’ble
Supreme Court applied the test of “eminent need” and the doctrine of
proportionality. In Ashok Kumar (supra) the defendants (in a title
suit) denied the claim of the plaintiff that he is the son of Sri. T.C.
10
[(2022) 1 SCC 20]
23
Gupta and Sona Devi and filed an application seeking direction to
conduct DNA test of the plaintiff. The Hon’ble Supreme Court held
that where other evidence (the presumption of legitimacy as provided
in Section 112 of the Evidence Act) is available to prove or dispute the
relationship, the Court should ordinarily refrain from ordering blood
tests as such tests impinge upon the right of privacy of an individual
and could also have major societal repercussions.
38. In the case of Ashok Kumar (supra), the Hon’ble Supreme
Court further observed thus:
“15. DNA is unique to an individual (barring twins)
and can be used to identify a person’s identity, trace
familial linkages or even reveal sensitive health
information. Whether a person can be compelled to
provide a sample for DNA in such matters can also be
answered considering the test of proportionality laid
down in the unanimous decision of this Court in K.S.
Puttaswamy (Aadhaar-5 J.) v. Union of India,
[(2019) 1 SCC 1], wherein the right to privacy has
been declared a constitutionally protected right in
India. The Court should therefore examine the
proportionality of the legitimate aims being pursued
i.e. whether the same are not arbitrary or
discriminatory, whether they may have an adverse
24impact on the person and that they justify the
encroachment upon the privacy and personal
autonomy of the person, being subjected to the DNA
test.”
39. In Aparna Ajinkya Firodia v. Ajinkya Arun Firodia11 was a
case wherein the parents were fighting in divorce proceedings. DNA
was sought for. The Supreme Court held that only in exceptional and
deserving cases, where such a test becomes indispensable to resolve
the controversy, the Court can direct such a test.
40. In view of the aforesaid legal propositions, it is quite vivid that
the baby child of the victim is neither party in the instant Criminal
case nor his status/paternity is required to be examined in this
criminal petition filed by the petitioner herein as such ascertaining
the paternity of the victim’s child is not at all required to be
determined in this criminal petition relating to aforesaid Criminal
offence as alleged filed by the petitioner and directing for DNA test to
determine the child of the accused would violate the privacy right of
the infant which is a constitutionally protected right as declared by
the Hon’ble Supreme Court in K.S. Puttaswamy (supra). In that
view of the matter, I do not find any merit in this criminal revisional
application filed by the petitioner for DNA test of the
11
[2023 SCC OnLine SC 161],
25
accused/opposite party no. 2 and accordingly, the prayer of the
petitioner, rejected by the Learned Trial Court, requires no
interference.
41. Accordingly, CRR No. 1709 of 2021 is dismissed.
Connected applications, if any, are also, thus, disposed of.
42. Let a copy of this Judgment be sent to the Learned Trial
Court for information.
43. Case Diary, if any, is to be returned to the learned counsel
for the State.
44. Interim order, if any, stands vacated.
45. Urgent photostat certified copy of this Judgment, if applied
for, is to be given as expeditiously to the parties on compliance of all
legal formalities.
(Ajay Kumar Gupta, J)
P. Adak (P.A.)