RAVICHANDRAN Vs. MARIYAMMAL

JUDGEMENT

(1.) THE accused in C. C. No. 471 of 1986 on the file of the judicial II Class Magistrate, Sirkali, is the petitioner. This is a petition under Sec. 482, Criminal Procedure Code praying to call for the records in crl. M. P. No. 6774 of 1987 in C. C. No. 471 of 1986 on the file of the Judicial II class Magistrate, Sirkali and quash the same.

(2.) THE respondent herein has given a private Complaint against the petitioner for the offence under Sec. 417, Indian Penal Code, alleging that the petitioner has promised to marry her and on such representation she cohabitated with him and she got a female child born on 14th november, 1985 and regarding which she had given the Complaint. Before the judicial II Class Magistrate, Sirkali, the respondent herein filed the petition crl. M. P. No. 6774 of 1987 praying for orders to test the blood group of the respondent as well as the petitioner herein and also the female child. THE learned Judicial II Class Magistrate has ordered the said petition on 30. 9. 1987. Against the said order the present petition has been filed stating that the petitioner has nothing to do so with the respondent and he is innocent and he cannot be Compelled to undergo the blood test and the order passed by the trial Court is against Art. 20 (3) of the Constitution of India, and as an accused he cannot be Compelled to undergo blood test and the order passed by the learned Magistrate is illegal and invalid. Hence he has prayed for quashing of the order passed by the learned Magistrate.

(3.) IN the decision reported in Ananthakumar Naick v. State of A. P, (1977) 2 An. W. R 437, rendered by a learned single Judge of the andhra Pradesh High Court, it has been pointed out that under Code of Criminal procedure, 1973 (Act 2 of 1974) , Secs. 53 and 54 have been introduced regarding the examination of accused by medical practitioner and the learned judge has taken into consideration whether any such examination under Sec. 53 testing the blood, sputum, semen, urine, etc. , could be included and whether such direction will be hit by Art. 20 (3) of the Constitution of INdia. The learned Judge after taking into consideration the judgments rendered in M. P. Sharma v. Satishchandra, (1954) 1 M. L. J. 580: 55 Crl. L. J. 965: 1954 S. CJ. 428: a. I. R. 1954 S. C. 300: 1954 S. C. R. 1077 and State of Bombay v. Kathikalu, A. I. R. 1961 S. C. 1808 and also the judgment of the Gujarat High Court reported in naibhai v. State of Gujarat, 1972 Crl. L. J. 1605 and after discussing elaborately has concluded that examination of a person by medical practitioner must be logically take in examination by testing his blood, sputum, semen, urine, etc, and the examination of blood and semen is not outside the scope of sec. 53 and if the accused is directed to undergo blood and seminal test for the purpose of investigation it would not amount to testimonial Compulsion coming within the prohibition laid down in Art 20 (3) of the Constitution. The decision was rendered in a petition filed by one of the accused charged with an offence of abduction and rape, and the prosecution has alleged that the accused abducted the woman and took her into the house of one of Use accused and in that house A5, the petitioner, was alleged to have raped her. The victim's skirt was bloodstained and there was semen on the bedsheet. The prosecution filed a petition for a direction that A1 and A5 should be produced before the director of Forensic Medical Laboratory for taking samples of blood and semen. The petition was allowed. The learned Judge referring to the observation of the supreme Court in M. P. Sharma v. Satishchandra, (1954) 1 M. L. J. 680: 55 Crl. L. J. 965: 1954 S. C. J. 428: A. I. R. 1954 S. C. 300: 1954 S. C. R. 1077, observed that Sec. 139 of the Evidence Act has no bearing on the connotation of the word 'witness'; is not entirely well founded in law. The majority opinion of the Supreme Court further held that giving thumb impression or impressions of foot or palm or fingers or specimen writing or showing parts of the body by way of identification are not included in the expression'to be a witness'. The Supreme Court further held'to be a witness'means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise. According to the learned single Judge of the Andhra Pradesh High Court, this majority view of the Supreme Court the bar against testimonial Compulsion is against imparting knowledge in respect of relevant facts by an oral statement or a statement in writing made or given in Court or otherwise. Giving specimen signature or handwriting or thumb impressions of fingers or palm or foot or showing parts of the body by way of identification are not included in the expression'to be a witness';. Then the learned Judge of the andhra Pradesh High Court discusses Secs. 53 and 54, Crl. P. C. , and held that a magistrate could order an accused person to undergo the medical examination under Sec. 53 since it may form part of investigation. The learned Judge refers to the two other judgments of the Andhra Pradesh High Court reported in Rami reddi v. State of Andhra Pradesh, (1971) 2 A. P. L. J. 174 and Narayanasami v. Gangeltare, (1974) 2 A. P. L. J. 178, and in those cases it has been held that taking the signature of an arrested person for Comparison and taking the thumb impression of an attested person were not precluded by Art. 20 (3) of the constitution of INdia.