Thankappan V.E and Suresh V.T v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944 ``` ``` CRL.MC NO. 6118 OF 2022 ``` ``` AGAINST THE ORDER DATED 24.08.2022 IN CMP NO.216/2022 IN SC 219/2020 OF SPECIAL COURT, MANANTHAVADI ``` ## **`PETITIONERS/ACCUSED NOS.1 & 2:`** ``` 1THANKAPPAN V.E AGED 74 YEARS S/O. ITTANKOCHU, VENGANIKUMTHODIYIL HOUSE PATHILPEEDIKA, KENCIHIRA P.O, POOTHADI, WAYANAD DISTRICT PIN - 673596 2SURESH V.T AGED 52 YEARS S/O. THANKAPPAN, VENGANIKUMTHODIYIL HOUSE PATHILPEEDIKA, KENCIHIRA P.O, POOTHADI, WAYANAD DISTRICT, PIN - 673596 BY ADV S.K.SAJU ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## **`SRI.RENJIT GEORGE, SENIOR PUBLIC PROSECUTOR`** ## **`THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON`** ``` 19.09.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 6118 OF 2022 ``` ``` 2 ``` ## **C.R.** ## **O R D E R** Dated this the 19[th] day of September, 2022 Accused Nos.1 and 2 in crime No.128 of 2016 in Kenichira Police Station, Wayanad have filed this petition under Section 482 of Cr.P.C. with the following prayers. “1. To call for the Original of Annexure 4 order dated 24.08.2022 in CMP No.216/2022 in SC No.219/2020 of the Special court, Mananthavadi and all records connected to it and to quash the same as illegal and unjustifiable. 2. To effectively mould the remedy and grant such other and further relief/reliefs as the petitioners may pray for from time to time and which this Honourable Court deems fit and proper to grant in the interests of justice”. ``` CRL.MC NO. 6118 OF 2022 ``` ``` 3 ``` 2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor. ## 3. Pertinent legal questions arise for consideration in this matter; - (a) whether a direction can be issued by a competent court to the accused to subject himself/themselves for blood test? - (b) Can such a direction be issued even after filing final report? 4. In this matter, after filing final report and when the Forensic Science Laboratory requested the Investigating Officer to furnish the blood samples found in the materials collected from the place of occurrence, the sample of the blood to be tested also was required, the Investigating Officer approached the court and sought for a direction to the accused (petitioners herein) to appear before the Investigating Officer for ``` CRL.MC NO. 6118 OF 2022 ``` ``` 4 ``` collecting their blood samples. The learned Special Judge allowed the application after appreciating the contention raised by the Investigating Officer as well as the petitioners herein, as per Annexure A4. 5. It is submitted by the learned counsel for the petitioners that Annexure A4 order is illegal. Annexure A4 is intended to fabricate evidence against the petitioners and the same is not permissible under law. He further submitted that as per the letter issued by the Investigating Officer to the Forensic Director, presence of bloodstain in the materials forwarded was sought to be ascertained and on finding presence of bloodstain, the same was sought to be tested for the purpose of identifying blood group, DNA etc. Thereafter, a letter was issued by the Analyst seeking further materials and acting on the said letter, initially, the Investigating Officer directed the petitioners to ``` CRL.MC NO. 6118 OF 2022 ``` ``` 5 ``` appear before him for collecting the blood samples, on the premise that there was court order in this regard. When the petitioners noticed that no such order was passed by the court, immediately, the Investigating Officer filed a petition as CMP 216 of 2022 in this regard. Annexure A2 is the copy of said petition and Annexure A3 is the copy of the objection filed by the petitioners. 6. After appraising the contentions, as per Annexure A4 dated 24.08.2022, the Special Court directed the petitioners to appear before the Investigating Officer for collecting their blood samples as and when required in writing by the Investigating Officer. 7. According to the learned counsel for the petitioners, the above order is illegal and the same would prejudice the accused. Further, the same ``` CRL.MC NO. 6118 OF 2022 ``` ``` 6 ``` amounts to testimonial compulsion and right against self incrimination protected under article 20(3) of the Constitution of India. 8. Controverting this contention, the learned Public Prosecutor would submit that the Investigating Officer is having ample power under Section 53 of Cr.P.C. to collect blood samples and therefore, he sought assistance of the court in this regard and accordingly, Annexure A4 was passed. Since Annexure A4 does not suffer from any infirmity, the same is not liable to be interfered. He submitted further that directing the accused to give blood samples for examination as provided under Section 53 of Cr.P.C. does not violate right against self incrimination. 9. Be on the crux of the matter, it is to be noted that as per the allegation of the police in crime No.128 of 2006, which was later re-numbered as crime No. ``` CRL.MC NO. 6118 OF 2022 ``` ``` 7 ``` 106/CB/KKB & WYD/18, the prosecution alleges commission of offences under Sections 302, 201 read with Section 34 of IPC as well as under Sections 3(2)(v) and 3(2)(vi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2015. It is admitted fact that, on investigation, the police filed final report. It was thereafter, for getting expert opinion regarding the materials forwarded at the time of investigation, the Forensic Science Laboratory called for further materials to give the report as sought for. In this connection, the Investigating Officer acted in accordance with the mandate of Section 53 of Cr.P.C., which was appraised before the Special Court and the Special Court considered the relevant decisions including one reported in **State of Bombay vs. Kathi Kalu Oghad** (AIR 1961 SC 1808) and also, **H.M.Prakash @ Dali Vs. State of Karnataka** [ILR 2004 KAR 2637]. As per the impugned order, the ``` CRL.MC NO. 6118 OF 2022 ``` ``` 8 ``` learned Special Judge observed that the object of enacting Section 53 of Cr.P.C. was to conduct scientific investigation and the same imposes an obligation to the accused to subject himself for medical examination at the instance of the police officer to help the investigation. It has been observed by the trial court further that the trial in the case not yet started and the proceedings contemplated under Sections 226, 227 and 228 of Cr.P.C. had not begun. The court below given emphasis to **H.M.Prakash @ Dali's** case (supra) to hold that it is open for the court to issue direction for permission to police to conduct investigation under Section 53 Cr.P.C. including blood test. 10. A plain reading of Section 53 of Cr.P.C. would make it clear that when a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such ``` CRL.MC NO. 6118 OF 2022 ``` ``` 9 ``` circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose. Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. No doubt, explanation(a) applicable to Sections 53, 53A and 54 of Cr.P.C. provides that “examination” shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, ``` CRL.MC NO. 6118 OF 2022 ``` ``` 10 ``` sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case. 11. In the decision reported in **Selvi v. State of Karnataka** [(2010(2) KHC 412: 2010(7) SCC 263: 2010(1) KLD 705 : 2010(4) SCALE 690 : AIR 2010 SC 1974 : 2010(3) SCC (Cri)1], the three Judges Bench of the Supreme Court considered the question whether conducting of narcoanalysis, polygraph and BEAP tests against the will of a person was legally permissible and was violative of the Constitution. It was held that, though conducting of certain medical tests on the accused were permissible under Explanation(a) to S.53, under S.53A and S.54 Cr.P.C., yet narcoanalysis test, polygraph test and BEAP test were not included in ``` CRL.MC NO. 6118 OF 2022 ``` ``` 11 ``` those tests. It was held that the general expression “such other tests” in explanation (a) to S.53 cannot be construed as covering these three tests because they were not of the same category to which tests specified in Explanation(a) belonged. Interpretational principle of ejusdem generis does not permit their inclusion, it was held. The Supreme Court held that legislative intent was clear from the fact that while amending the said Explanation(a) in 2005, the Parliament in its wisdom did not include those tests despite the fact that those tests were in existence at that time. It was further held that the above tests violate Art.20(3) and Art.21 of the Constitution of India and S.161(2) of Cr.P.C., since it amounts to suspects and witnesses being compelled to make self incriminating statements. 12. In the decision reported in **Ritesh Sinha v. State of Uttar Pradesh and another** [(2019(4) KHC ``` CRL.MC NO. 6118 OF 2022 ``` ``` 12 ``` 183:2019 (8) SCC 1 : 2019(2) KLD 235 : 2019(3) KLT 709 : AIR 2019 SC 3592 : 2019 CriLJ 3964], the Supreme Court examined the scope of S.53, S.53A and S.311A of Cr.P.C. After a detailed evaluation of the legal principles, the court concluded that until explicit provisions are engrafted in the Code of Criminal Procedure by the Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Art.142 of the Constitution of India, it was held. This decisioin was relied on by the Court below for directing the petitioner to give her voice sample. 13. In the decision reported in **Sanjeev Nanda v. State of NCT, Delhi** (2007 CrlLJ 3786), the Delhi ``` CRL.MC NO. 6118 OF 2022 ``` ``` 13 ``` High Court held that examination of the accused contemplated under Section 53 of Cr.P.C includes taking of blood from the accused and even an accused on bail falls within the ambit of Section 53 of Cr.P.C. 14. It is relevant to note that even though the final report has been filed in this matter, the power of the Investigating Officer to collect blood sample of the accused in order to facilitate the forensic examination of the materials forwarded during investigation cannot be curtailed. That apart, going by Section 173(8) of Cr.P.C., an Investigating Officer has the power to investigate a crime further and to file further report on the basis of further evidence, either oral or documentary. In fact, the said right of further investigation is the domain of the Investigating Officer and for which, even a mandatory sanction of the Court is not required and what is necessary is to give an ``` CRL.MC NO. 6118 OF 2022 ``` ``` 14 ``` information to the Court regarding the process of further investigation to have a formal permission to keep a comity in between the court and the Investigating Officer. 15. In this matter, though final report already filed, the stage under Sections 226, 227 or 228 not reached. At this juncture, the Investigating Officer approached the court to get the blood sample of the accused for forwarding the same to the Forensic Lab to compare the bloodstains in the materials with that of the accused. 16. The above discussion would lead to the conclusion that collection of blood samples from the accused is legally permitted as part of the investigation under Section 53 of Cr.P.C. read with Explanation(a). Therefore, it is well within the power of a competent criminal court to direct an accused to subject himself ``` CRL.MC NO. 6118 OF 2022 ``` ``` 15 ``` for blood test and the said power can be exercised even after filing final report, in an appropriate case involving facts narrated in this case. Hence, the Special Court rightly allowed the application of the Investigating Officer directing the petitioners herein/accused to subject themselves for blood test. The said order, in fact, does not suffer from any illegality or infirmities as the said direction does not amount to testimonial compulsion or right against self incrimination embodied under article 20(3) of the Constitution of India. In view of the matter, the contention raised by the accused to defeat collection of material evidence by the Investigating Officer as permitted by the court cannot be appreciated as the accused cannot dictate terms during investigation/ further investigation. ``` CRL.MC NO. 6118 OF 2022 ``` ``` 16 ``` In view of the matter, the order passed is perfectly legal and the same does not deserve any merit and accordingly, the same stands dismissed. **Sd/-** **A. BADHARUDEEN JUDGE** nkr ``` CRL.MC NO. 6118 OF 2022 ``` ``` 17 ``` ## **`APPENDIX OF CRL.MC 6118/2022`** |**`PETITIONER ANNEXURES`**|**`PETITIONER ANNEXURES`**| |---|---| |**`Annexure A1`**|**`A TRUE COPY OF THE INQUEST REPORT`**| ||**`DATED 05.04.2016`**| |**`Annexure A2`**|**`A TRUE COPY OF THE PETITION DATED`**| ||**`14.07.2022`**<br>**`SUBMITTED`**<br>**`BY`**<br>**`THE`**| ||**`PROSECUTION BEFORE THE SPECIAL COURT`**| |**`Annexure A3`**|**`TRUE COPY OF THE COUNTER DATED`**| ||**`03.08.2022`**<br>**`SUBMITTED`**<br>**`BY`**<br>**`THE`**| ||**`PETITIONERS BEFORE THE SPECIAL COURT`**| |**`Annexure A4`**|**`COPY OF THE ORDER DATED 24.08.2022 IN`**| ||**`CMP NO. 216/2022 IN SC NO. 219/2020`**| ||**`OF THE SPECIAL COURT, MANANTHAVADI`**| |**`Annexure A5`**|**`TRUE COPY OF THE NOTICE DATED`**| ||**`29.08.2022`**<br>**`ISSUED`**<br>**`BY`**<br>**`THE`**| ||**`INVESTIGATING OFFICER TO THE 1ST`**| ||**`PETITIONER`**| |**`Annexure A6`**|**`TRUE COPY OF THE NOTICE DATED`**| ||**`29.08.2022`**<br>**`ISSUED`**<br>**`BY`**<br>**`THE`**| ||**`INVESTIGATING OFFICER TO THE 2ND`**| ||**`PETITIONER`**|