SANDEEP KALSON Vs. STATE

JUDGEMENT

(1.) The main question which requires an answer in this case is whether the prosecution can be granted permission to obtain hair sample of the accused persons for the purpose of comparison during investigation. The Magistrate concerned declined the request of the prosecution by observing that "in view of the provisions of Section of the Evidence Act, Courts can order the accused persons or any person present in the Court to give his handwriting and fingerprints etc for the purpose of comparison, but the section envisage only the circumstances when the case has been sent to the court for trial after investigation is complete for enabling the Court to compare the wores of finger prints etc. In the present case the investigation is still pending as such the Court is not empowered to direct the accused persons to give their head hair sample for the purpose of investigation"

(2.) In revision before the Additional Sessions Judge the said order of the Magistrate was set aside and the revision petition was allowed permitting the prosecution to take hair samples of the accused persons for the purpose of comparison. The learned Additional Sessions Judge relied upon the decision of the Rajasthan High Court in the case of Mahipal Madendra and Another vs. State ofRajasthan (1971 Cri-LJ. 1405] which lays down that an order requiring the accused to give specimen of hair for the purpose of identification is not violative of thefundamental right guarantee dunder Article 20(3)or21 of the 'Constitution of India. It was neither found to be self incriminating nor was found to be in any way reducing the enjoyment of life or encroaching upon personal liberty. It was also observed that the provisions of Section 73 ofthe Indian Evidence Act are not applicable in the present circumstances of the case.

(3.) The accused, Sandeep Kalson has challenged the order of the Additional Sessions Judge by filing this revision petition. According to the learned counsel for the petitioner, the learned Additional Sessions Judge has committed a manifest error of jurisdiction in compelling the petitioner to give a sample of hair when the case is not before the Court for trial but is at the investigation stage. According to the learned counsel. Section 73 ofthe Evidence Act applies only after the investigation is complete and case has been committed for trial. The essence and purpose being to enable the Court to satisfy itself about the identity etc. of the document or individual after the investigation is complete. According to the learned counsel for the petitioner, at the investigation stage there is no procedure prescribed for compelling an accused to part with any part of his body, be it blood or hair. Learned counsel for the petitioner did not press his point that the impugned order is violative of the fundamental right of the petitioner guaranteed under Article 20 [2] and 21 of the Constitution of India, but he pressed the point that Section 73 of the Evidence Act is applicable and it applies only after the investigation is complete and the case has been committed for trial.