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®

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 3RD DAY OF DECEMBER, 2014

B E F O R E

THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA

WRIT PETITION NO.49254/2014 (GM-RES)

BETWEEN:

Shreemad Jagadguru Shankaracharya

Shree Shree Raghaveshwara Bharati Swamiji, (Formerly known as Sri Harish Sharma),

Aged about 39 years,

Shree Samsthana – Gokarna Shree Ramachandrapura Math, Haniya Post,

Hosanagara Taluk, Shimoga District and

Also at Ramashrama, No.2A,

J.P. Road, Girinagar, Bangalore – 560 085.

…PETITIONER

(By Sri K.G. Raghavan & Sri Ashok Haranahalli, Senior Advocates for

Sri Manmohan P.N., Adv.)

AND:

1. State of Karnataka,

CID, Special Cell, Palace Road,

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Bangalore – 560 001,

Represented by the Director General of Police.

2. Deputy Superintendent of Police,

H&B, CID, Palace Road, Bangalore – 560 001.

3. The Union of India,

Ministry of Home Affairs, New Delhi,

Represented by its Secretary.

R3 impleaded vide Court Order dated 19.11.2014.

.. RESPONDENTS

(By Prof. Ravivarma Kumar, Adv. General for R1 & R2;

Sri Krishna S. Dixit, Assistant Solicitor General for R3)

This petition is filed under Articles 226 and 227 of

the Constitution of India, praying to issue a writ declaring that S.53-A of the Code of Criminal Procedure is

unconstitutional and ultra vires the Constitution of India; quash the impugned notice dated 18.10.2014 issued by

the 2nd respondent produced as Annexure-‘S’.

This petition having been reserved, today, the Court pronounced the following:

ORDER

The constitutional validity of S.53-A of the Code of

Criminal Procedure, 1973 (for short the ‘Code’), is in issue,

in this writ petition. That apart, there is challenge to a

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police notice dated 18.10.2014, as at Annexure-‘S’,

whereby, the second respondent called upon the petitioner

to appear at 9.00 a.m., on 21.10.2014, in empty stomach,

for medical examination at Victoria Hospital, Bengaluru.

2. Section 53-A of the Code, which was inserted

by Act No.25 of 2005, with effect from 23.06.2006, reads

as under:

“S.53A. Examination of person accused of rape by medical

practitioner.- (1) When a person is arrested on a charge of

committing an offence of rape or an attempt to commit rape and

there are reasonable grounds for believing that an examination of

his person will afford evidence as to the commission of such

offence, it shall be lawful for a registered medical practitioner

employed in a hospital run by the Government or by a local

authority and in the absence of such a practitioner within the

radius of sixteen kilometers from the place where the offence has

been committed by any other registered medical practitioner

acting at the request of a police officer not below the rank of a

sub-inspector, and for any person acting in good faith in his aid

and under his direction, to make such an examination of the

arrested person and to use such force as is reasonably necessary

for that purpose.

(2) The registered medical practitioner conducting such

examination shall, without delay, examine such person and

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prepare a report of his examination giving the following

particulars, namely:-

(i) the name and address of the accused and of the person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA profiling, and

(v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each

conclusion arrived at.

(4) The exact time of commencement and completion of the

examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay,

forward the report of the investigating officer, who shall forward it

to the Magistrate referred to in section 173 as part of the

documents referred to in clause (a) of sub-section (5) of that

section.”

3. To appreciate the controversy raised in this

petition, relevant facts are:

Miss Amushumathi Shastry, D/o.Diwakar Shastry

lodged a complaint on 26.08.2014 before the Banashankari

Police and a case in Crime No.219/2014 was registered for

the offences punishable under Ss.354-A and 506 of IPC.

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Banashankari Police transferred the said complaint and FIR

No.219/2014 to the Girinagar Police and a case was

registered in Crime No.164/2014. On 05.09.2014, the said

case was transferred to the CID Special Cell.

W.P.No.43825/2014 filed to quash the complaint dated

26.08.2014 and FIR dated 28.08.2014, registered in Crime

No.164/2014 by Girinagar Police (FIR in Crime

No.219/2014 registered by Banashankari Police) was

dismissed on 09.10.2014. In Crl.Misc.No.5826/2014, Addl.

City Civil and Sessions Judge, Bengaluru by an order dated

09.10.2014, granted interim bail under S.438(1)(iv) of the

Code. On 12.10.2014, respondent No.2, served a notice

on the petitioner, to appear on 13.10.2014, in respect of

Crime Nos.164/2014 and 113/2014 for interrogation. The

petitioner by submitting a representation dated

12.10.2014 sought time. In Crl.Misc.No.5896/2014, Addl.

City Civil and Sessions Judge, Bengaluru granted an

interim bail on 13.10.2014. Thereafter, the petitioner

appeared before respondent No.2 with regard to the

investigation in respect of the said crimes.

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4. Notice vide Annexure- ‘S’ having been served

on 20.10.2014, this writ petition was filed to declare S.53-

A of the Code, as ultra vires the Constitution of India and

quash Annexure-‘S’. On 20.10.2014, Annexure - ‘S’ and all

further proceedings in pursuance thereof was stayed until

further orders. I.A.No.1/2014 filed on 27.10.2014, to

implead respondent No.3, was allowed on 19.11.2014 and

the cause-title was amended.

5. Heard Mr. K.G. Raghavan and Mr. Ashok

Haranahalli, learned Senior Advocates, for the petitioner

and Prof. Ravivarma Kumar, learned Advocate General and

Sri Krishna S. Dixit, learned Assistant Solicitor General of

India, for the respondents.

6. Mr. K.G.Raghavan, learned Senior Advocate,

argued that S.53-A of the Code is violative of Articles 14,

20(3) and 21 of the Constitution. He submitted that the

Section confers on a Police Officer and the registered

medical practitioner, unguided, unfettered and unbridled

power and thus, the provision is manifestly arbitrary. He

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submitted that the provision completely militates against

the fundamental rights guaranteed under Clause (3) of

Article 20 and Article 21 of the Constitution, more

particularly, ‘the right to privacy and dignity’. He

contended that S.53-A should be construed strictly and

Article 21 widely. He submitted that, as the impugned

provision enables a Police Officer to use force against an

arrested person in the matter of examination of such

person, the same being arbitrary, is unconstitutional. He

submitted that extraction of body fluids from an accused,

by use of physical force, causes physical pain and mental

agony, amounting to ‘compulsive testimony’ prohibited

under Clause (3) of Article 20. He submitted that the

petitioner being potent, which was made clear on

20.10.2014, when the interim order was passed in this

petition, there is no need for the Investigating Officer, to

subject the petitioner to medical examination under S.53-A

of the Code. In support of the contentions, he relied upon

the following decisions:

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SHEO NATH Vs. APPELLATE ASSISTANT COMMISSIONER: AIR 1971 SC 2451

C. RAJPAL Vs. S.P. CHALIHA, AIR 1971 SC 730

NARAYANAPPA Vs. I.T. COMMISSIONER, AIR 1967 SC 523

UNION OF INDIA Vs. SHIV SHANKER KESARI, (2007) 7 SCC 798

BARIUM CHEMICALS LTD. Vs. COMPANY LAW BOARD: AIR 1967 SC 295

A.K. SEN Vs. UNION OF INDIA, (1980) ILR 2 DELHI 868

GOUTAM KUNDU Vs. STATE OF WEST BENGAL,(1993) 3 SCC 418

SHARDA Vs. DHARMPAL, AIR 2003 SC 3450

AMRIT SINGH Vs. STATE OF PUNJAB, (2006) 12 SCC 79

SELVI Vs. STATE OF KARNATAKA:, AIR 2010 SC 1974

B.P. JENA Vs. CONVENOR SECRETARY, ORISSA STATE COMMISSION FOR WOMEN, AIR 2010 SC 2851 VENKATESHA Vs. STATE OF KARNATAKA,CRL.P..No.2105/13 Dt.30/05/2013.

K.M. MUNISWAMY REDDY Vs. STATE OF KARNATAKA, ILR 1992 KAR 2543

TATE OF KARNATAKA Vs. CHIKKABALA NAIKA,ILR 2002 KAR 5151

PEOPLES UNION FOR CIVIL LIBERTIES AND ANR. Vs. UNION OF INDIA: AIR 2004 SC 456

NARCOTICS CONTROL BUREAU Vs. DILIP PRALHAD NAMADE: (2004) 3 SCC 619

UNION OF INDIA Vs. SHIV SHANKER KESARI, (2007) 7 SCC 798

S.SUNDARAM PILLAI & OTHERS Vs. V.R. PATTABIRAMAN & ORS.: (1985) 1 SCC 591

BABUBHAI Vs. STATE OF GUJARAT & OTHERS, (2010) 12 SCC 254

KARAN SINGH Vs. STATE OF HARYANA & ANOTHER, (2013) 12 SCC 529

V.K. SASIKALA Vs. STATE, (2012) 9 SCC 771

SMT. MANEKA GANDHI Vs. UNION OF INDIA, AIR 1978 SC 597

RITESH SINHA Vs. STATE OF UTTAR PRADESH, AIR 2013 SC 1132

D.K. BASU Vs. STATE OF W.B., (1997) 1 SCC 416

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7. Mr.Ashok Haranahalli, learned Senior Advocate,

argued that S.53-A is inconsistent with the provisions of

the Code. He referred to the Karnataka Police Manual and

S.197 of the Code. According to him, the expression

“examination of his person” appearing in Ss.53, 53-A and

54 – cognate provisions, sanction only the external

medical examination of body of an accused and do not

authorise extraction of any fluids, without his consent and

if the said provisions are not so interpreted, S.53-A fall

foul of Articles 14, 20(3) and 21 of the Constitution and

would run against the ratio of the decision in SELVI’s case,

(supra). He contended that investigation by respondent

No.2 must be fair and the rights of the accused,

guaranteed under the Constitution and the statutory

provisions, should be protected. According to the learned

counsel, there is need for respondent No.2, to disclose to

the petitioner, the proposed test/s, as otherwise, the

action would be wholly arbitrary. He submitted that S.53-A

vests unreasonably excessive power in a Police Officer in

deciding the choice of medical test, that too, without

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intimating the accused in advance, with regard to the

nature of test/s, to which he would be subjected to. He

contended that the provision being arbitrary, is

unconstitutional.

8. Mr. Krishna S.Dixit, learned Assistant Solicitor

General of India, stoutly defended S.53-A. He submitted

that the provision was inserted, as per Act No.25 of 2005,

with effect from 23.06.2006, providing for medical

examination of an accused in rape case and attempt for

rape case, based on the recommendations of the 84th and

172nd report of the Law Commission of India. He

submitted that in civilized legal systems the medical

examination of an accused and use of reasonable force are

sanctioned either by law or by judicial decisions. He

referred to the ‘Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment’

adopted by the General Assembly Resolution

No.A/RES/39/46 of 10th December, 1984 and ‘United

Nations Declaration on the Elimination of Violence against

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Women’. He contended that the Court cannot strike down

a statutory provision for being arbitrary and unreasonable

so as to substitute its own wisdom for that of the

Legislature. He submitted that there being no challenge to

the impugned provision on the ground of lack of legislative

competence and the challenge being only on the ground

that it is arbitrary and unguided, in view of the

Constitutional limitations, the provision cannot be struck

down on the ground that it is unreasonable or unjust. He

submitted that unless a Constitutional infirmity is pointed

out, the provision cannot be struck down on the

apprehension of unreasonableness or arbitrariness. He

submitted that S.53-A satisfies the test of reasonableness

as it has a rational nexus with the object sought to be

achieved on account of the increased crime rate against

women. He further submitted that mere possibility of

abuse of power cannot invalidate the provision made by

the competent Legislature as there is always a

presumption in favour of the Constitutionality of the

provision or the enactment, since it has to be presumed

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that the Legislature understands and correctly appreciates

the need of its own people and that its laws are directed to

problems manifest by experience. He contended that

S.53-A does not violate any of the rights in Part-III of the

Constitution or any other Articles of the Constitution. With

regard to the presumption in favour of validity and

constitutionality of a statute, he placed reliance on the

decisions of the Apex Court, in STATE OF A.P. AND OTHERS

Vs. McDOWELL AND CO. AND OTHERS, AIR 1996 SC 1627;

COMMISSIONER OF SALES TAX, M.P. Vs. RADHAKRISHAN AND

OTHERS, AIR 1979 SC 1588; DORA PHALAULI Vs. STATE OF

PUNJAB AND OTHERS, AIR 1979 SC 1594; NAND LAL Vs. STATE

OF HARYANA, AIR 1980 SC 2097.

9. Prof. Ravivarma Kumar, learned Advocate

General, submitted that there is presumption of

Constitutionality and mutual respect inherent in doctrine of

separation of powers. He submitted that S.53-A was

inserted in the Code on the basis of the recommendation

of the Law Commission of India, to check the offence of

rape or attempt to commit rape, by a person against

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woman. He submitted that the petitioner would not be

subjected to any of the three test/s, which were the

subject matter of consideration and held as not permissible

by the Apex Court, in SELVI’s case. He also submitted that

the petitioner would not be subjected to the ‘Voice test’;

regarding which, the matter was referred to a Larger

Bench, in the case of RITESH SINHA Vs. STATE OF U.P.,

(2013) 2 SCC 357. He submitted that case for the offences

under Ss.354-A, 506 and 376 of IPC having been

registered and the investigation having commenced, there

is need for the petitioner to immediately undergo the

medical examination, stipulated under S.53-A of the Code.

He submitted that this petition has been designed to delay

the investigation of the case, which becomes apparent in

not impleading the necessary party, i.e., respondent No.3,

at the time of filing the petition and it is only after

objection was raised, an application was filed belatedly for

impleading. Learned advocate General placed reliance on

the following decisions:

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STATE OF BOMBAY Vs. KATHI KALU OGHAD, AIR 1961 SC 1808

JAMSHED Vs. STATE OF U.P., 1976 CRL. L.J. 1680

ANANT KUMAR Vs. STATE OF A.P., 1977 CRL.L.J. 1797

THANIEL VICTOR Vs. STATE, 1991 CRL.L.J. 2416

NEERAJ SHARMA Vs. STATE OF U.P., 1993 CRL.L.J. 2266

VINEET NARAIN & OTHERS Vs. UNION OF INDIA & ANR., (1996) 2 SCC 199

SELVI AND OTHERS Vs. STATE OF KARNATAKA, (2010) 7 SCC 263

H.M. PRAKASH@ DALI Vs. THE STATE OF KARNATAKA, ILR 2004 KAR 2637

SRI HALAPPA @ HARTHAL HALAPPA Vs. STATE OF KARNATAKA, DEPUTY SUPERINTENDENT OF POLICE, BANGALORE, ILR 2010 KAR 4454

SRI GOPAL REDDY SHEELUM Vs. STATE OF KARNATAKA; CRL. P.NO.234/2011 CONNECTED CASES DISPOSED OF ON 16.07.2014- MANU/KA/1713/2014

SHARDA Vs. DHARMPAL, 2003 AIR SCW 1950

POPULAR MUTHIAH Vs. STATE REP. BY INSPECTOR OF POLICE, (2006) 7 SCC 296:

DIVINE RETREAT CENTRE Vs. STATE OF KERALA &ORS., (2008)3 SCC 542:

SIVA VALLABHANENI Vs. STATE OF KARNATAKA & ANR, SLP (CRL.) NO.5844 OF 2014, decided on 03.09.2014:

10. Considered the arguments and perused written

submissions filed by learned advocates appearing for the

parties. I also perused the literature and the Judgments,

on which reliance was placed by the learned advocates on

both sides.

11. I shall first deal with the question relating to the question relating to the question relating to the question relating to the

constitutional validity of S.53constitutional validity of S.53constitutional validity of S.53constitutional validity of S.53----AAAA of of of of Cr.P.C. Cr.P.C. Cr.P.C. Cr.P.C.

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12. Articles 13, 14, clause (3) of 20 and 21 of the

Constitution, which have a bearing on the issue, read as

follows:

“13. Laws inconsistent with or in derogation of the

fundamental rights.- (1) ******

(2) The State shall not make any law which takes away or

abridges the rights conferred by this Part and any law made in

contravention of this clause shall, to the extent of the

contravention, be void.

(3) In this article, unless the context otherwise

requires.-

(a) “law” includes any Ordinance, order, bye-law,

rule, regulation, notification, custom or usage having in the

territory of India the force of law;

(b) “laws in force” includes laws passed or made by a

Legislature or other competent authority in the territory of

India before the commencement of this Constitution and

not previously repealed, notwithstanding that any such law

or any part thereof may not be then in operation either at

all or in particular areas.

(4) Nothing in this article shall apply to any amendment of

this Constitution made under article 368.

14. Equality before law.- The State shall not deny to any

person equality before the law or the equal protection of the laws

within the territory of India.

20. Protection in respect of conviction for offences.-

(1) ******

(2)*******

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(3) No person accused of any offence shall be compelled to

be a witness against himself.

21. Protection of life and personal liberty.- No person

shall be deprived of his life or personal liberty except according to

procedure established by law.”

13. Article 14 of the Constitution incorporates the

concept of equality and equal protection of laws. It is a

pledge of protection of equal laws, i.e., laws that operate

alike on all persons under like circumstances.

14. Article 20(3) of the Constitution declares that

no person accused of any offence shall be compelled ‘to be

a witness against himself’. In order to avail the protection

of Article 20(3), three conditions must be satisfied. Firstly,

the person must be accused of an offence. Secondly, the

element of compulsion ‘to be a witness’ should be there

and thirdly, ‘it must be against himself’. All the three

ingredients must necessarily exist to extend the protection

of Article 20(3).

15. Article 21 has compendious terms, “life” and

“personal liberty”. The Article has various facets and has

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received wide interpretation, particularly, in the matter of

‘life and liberty of human beings’. The Article has imposed

a duty on the State to enforce the human rights of a

citizen also providing for fair and impartial investigation

against any person accused of commission of a cognizable

offence. Article 21, in its broad application and in the

context of criminal justice system, not only takes within its

fold, enforcement of the rights of an accused but also the

rights of the victim. The Article recognises the rights of

both the accused and the victim, to a fair investigation and

trial. A balance between the rights of the accused and the

victim has to be struck, since the rights of both, to a fair

investigation and trial can be recognised under Article 21,

as the investigation into an offence after registration of FIR

under S.154 of the Code is the “procedure established by

law”.

16. Laws enacted by Parliament or State

Legislatures carry with them a presumption of

Constitutionality. The same has been founded on the

premise that the Legislature being a representative body of

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the people and accountable to the people is aware of their

needs and acts in their best interest, within the confines of

the Constitution.

17. The Court’s approach, when there is challenge

to the constitutional validity of the law, has been succinctly

stated by the Apex Court, in SUBRAMANIAN SWAMY Vs.

DIRECTOR, CENTRAL BUREAU OF INVESTIGATION AND

ANOTHER, (2014) 8 SCC 682. The same reads as follows:

“49. Where there is challenge to the constitutional validity

of a law enacted by the legislature, the Court must keep in view

that there is always a presumption of constitutionality of an

enactment, and a clear transgression of constitutional principles

must be shown. The fundamental nature and importance of the

legislative process needs to be recognized by the Court and due

regard and deference must be accorded to the legislative process.

Where the legislation is sought to be challenged as being

unconstitutional and violative of Article 14 of the Constitution, the

Court must remind itself to the principles relating to the

applicability of Article 14 in relation to invalidation of legislation.

The two dimensions of Article 14 in its application to legislation

and rendering legislation invalid are now well recognised and

these are (i) discrimination, based on an impermissible or invalid

classification, and (ii) excessive delegation of powers; conferment

of uncanalised and unguided powers on the executive, whether in

the form of delegated legislation or by way of conferment of

authority to pass administrative orders - if such conferment is

19

without any guidance, control or checks, it is violative of Article 14

of the Constitution. The Court also needs to be mindful that a

legislation does not become unconstitutional merely because there

is another view or because another method may be considered to

be as good or even more effective, like any issue of social, or even

economic policy. It is well settled that the courts do not substitute

their views on what the policy is.”

(emphasis supplied)

18. In view of the presumption of constitutionality

of statute and with regard to the burden of proof, Apex

Court, in DHARMENDRA KIRTHAL VS. STATE OF UTTAR

PRADESH AND ANOTHER, (2013) 8 SCC 368, has held as

follows:

“23. At this juncture, we may profitably recapitulate that it

is the duty of the Court to uphold the constitutional validity of a

statute and that there is always the presumption in favour of the

constitutionality of an enactment. In this context, we may

fruitfully refer to the decision in Charanjit Lal Chowdhury v. Union

of India, AIR 1951 SC 41, wherein it has been ruled thus:

“10. …..it is the accepted doctrine of American courts, which I consider to be well founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles”.

24. In Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar,

AIR 1958 SC 538, this Court had ruled that there is always a

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presumption in favour of the constitutionality of an enactment

and the burden is on him who challenges the same to show that

there has been a clear transgression of the constitutional

principles and it is the duty of the Court to sustain that there is a

presumption of constitutionality and in doing so, the Court may

take into consideration matters of common knowledge, matters of

common report, the history of the times and may assume every

state of facts which can be conceived existing at the time of the

legislation.

In State of Bihar v. Bihar Distillery Limited, (1997) 2 SCC 453, the

said principle was reiterated.

25. In Burrakur Coal Co. Ltd. v. Union of India, AIR 1961 SC

954, Mudholkar, J., speaking for the Constitution Bench,

observed: (AIR p.963, para 25)

“25. …..Where the validity of a law made by a competent legislature is challenged in a court of law, that court is bound to presume in favour of its validity. Further, while considering the validity of the law the court will not consider itself restricted to the pleadings of the State and would be free to satisfy itself whether under any provision of the Constitution the law can be sustained.”

26. In Pathumma v. State of Kerala, (1978) 2 SCC 1, the seven-

Judge Bench has opined thus: (SCC p.8, para 5)

“5. …..The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. It must take into consideration the changing trends of economic thought, the temper of the times and the living aspirations and feelings of the people. This Court while acting as a sentinel on the qui vive to protect fundamental rights guaranteed to the citizens of the country must try to strike a just balance between the fundamental rights and the larger and broader interests of

21

society, so that when such a right clashes with the larger interest of the country it must yield to the latter.”

Again in the said judgment, it has been ruled thus: (Pathumma

case, SCC p.9 para 6)

“6. It is obvious that the legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weaker sections of the society and for the improvement of the lot of poor people. The Court will, therefore, interfere in this process only when the statute is clearly violative of the right conferred on the citizen under Part III of the Constitution or when the Act is beyond the legislative competence of the legislature or such other grounds.”

27. The said principles have been reiterated by the majority

in another Constitution Bench in State of Gujarat v. Mirzapur Moti

Kureshi Kassab Jamat, (2005) 8 SCC 534 .

28. At this juncture, we think it condign to sit in a time

machine and refer to the opinion expressed by Krishna Iyer, J., in

STO v. Ajit Mills Limited, (1977) 4 SCC 98: (SCC p.103, para 2)

“2. A prefatory caveat. When examining a legislation from the angle of its vires, the Court has to be resilient, not rigid, forward-looking, not static, liberal, not verbal - in interpreting the organic law of the nation. We must also remember the constitutional proposition enunciated by the U.S. Supreme Court in Munn v. Illinois, 24 L Ed 77,viz., ‘that courts do not substitute their social and economic beliefs for the judgment of legislative bodies’. Moreover, while trespasses will not be forgiven, a presumption of constitutionality must colour judicial construction. These factors, recognized by our Court, are essential to the modus vivendi between the judicial and legislative branches of the State, both working beneath the canopy of the Constitution.”

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29. We have referred to the aforesaid authorities for the

sanguine reason that the submissions raised at the Bar are to be

considered in the backdrop of the aforesaid “caveat”. The modus

vivendi which needs a purposive and constructive ratiocination

while engaged in the visceration of the provision, which draws its

strength and stimulus in its variations from the Constitution, we

have to see whether the provision trespasses the quintessential

characteristics of the Organic Law and, therefore, should not be

allowed to stand.”

(emphasis supplied)

19. After the adoption of the Penal Code, a number

of amendments have been made to it. Amendment made

by Act No.25 of 2005 deals with the category of offences,

in respect of which the Law Commission of India made

specific recommendations. The Parliament having debated

the recommendations of the Law Commission of India, has

inserted Explanation to S.53 and S.53-A to the Code. That

unless a clear constitutional violation is established, it is

impermissible to strike down S.53-A, merely on account of

its likely abuse / misuse.

20. Section 53-A was attacked on the ground that

the same promotes use of force by a police officer against

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a person arrested on a charge of committing an offence of

rape or attempt to commit rape. What the section provides

is ‘to use such force as is “reasonably necessary” for that

purpose’. Thus, it is clear that there cannot be blackmail

and / or torture of the person subjected to the examination

by the registered medical practitioner. In my opinion, the

mere fact that the section may be misused by a Police

Officer, is not a reflection of the vires of the section. In

this regard, the law was succinctly clarified by the Apex

Court, in SUSHIL KUMAR SHARMA VS. UNION OF INDIA,

(2005) 6 SCC 281. Therein, Apex Court was approached to

declare S.498-A IPC to be unconstitutional and ultra vires

or in the alternative to formulate guidelines, so that

innocent persons are not victimized by unscrupulous

persons. While examining the plea, it was held as follows:

“12. It is well settled that mere possibility of abuse of a

provisions of law does not per se invalidate a legislation. It must

be presumed, unless the contrary is proved, that administration

and application of a particular law would be done "not with an evil

eye and unequal hand". (see A. Thangal Kunju Musaliar v. M.

Venkatichalam Potti, AIR (1956) SC 246.

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13. In Budhan Choudhry v. State of Bihar, AIR (1955) SC

191 a contention was raised that a provision of law may not be

discriminatory but it may lend itself to abuse bringing about

discrimination between the persons similarly situated. This Court

repelled the contention holding that on the possibility of abuse of

a provision by the authority, the legislation may not be held

arbitrary or discriminatory and violative of Article 14 of the

Constitution.

14. From the decided cases in India as well as in United

States of America, the principle appears to be well settled that if a

statutory provision is otherwise intra vires, constitutional and

valid, mere possibility of abuse of power in a given case would not

make it objectionable, ultra vires or unconstitutional. In such

cases, "action" and not the "section" may be vulnerable. If it is so,

the court by upholding the provision of law, may still set aside the

action, order or decision and grant appropriate relief to the person

aggrieved.

15. In Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC

536, a Bench of nine Judges observed that mere possibility of

abuse of a provision by those in charge of administering it cannot

be a ground for holding a provision procedurally or substantively

unreasonable. In Collector of Customs v. Nathella Sampathu

Chetty, (1962) 3 SCR 786 this Court observed. (SCR p.825)

"The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity."

It was said in State of Rajasthan v. Union of India, (1977) 3 SCC

592: (SCC p.658, para 147)

25

“It must be remembered that merely because power may sometime be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief."

(Also see: Commissioner, H.R.E. v. Sri Lakshmindra Thirtha

Swamiar of Sri Shirur Mutt, 1954 SCR 1005.

16. As observed in Maulavi Hussein Haji Abraham Umarji v.

State of Gujarat, (2004) 6 SCC 672, Unique Butyle Tube Industries

(P) Ltd. v. U.P. Financial Corporation, (2003) 2 SCC 455 and Padma

Sundara Rao v. State of T.N., (2002) 3 SCC 533, while interpreting

a provision, the Court only interprets the law and cannot legislate

it. If a provision of law is misused and subjected to the abuse of

the process of law, it is for the legislature to amend, modify or

repeal it, if deemed necessary.”

(emphasis supplied)

21. Taking note of the amendment made to the

Code, by way of insertion of Explanation to Sections 53

and 53-A of the Code, to clarify the scope of medical

examination, especially with regard to the extraction of

bodily substances, while holding that the three impugned

tests should be treated as testimonial acts for the purpose

of invoking the right against the self-incrimination, the

position was made clear by the Apex Court, in SELVI’s case

(supra), as follows:

26

“169. We are inclined towards the view that the results of

the impugned tests should be treated as testimonial acts for the

purpose of invoking the right against self-incrimination. Therefore,

it would be prudent to state that the phrase “and such other tests”

[which appears in the Explanation to Sections 53 CrPC] should be

read so as to confine its meaning to include only those tests which

involve the examination of physical evidence. In pursuance of this

line of reasoning, we agree with the appellant's contention about

the applicability of the rule of “ejusdem generis”. It should also be

noted that the Explanation to Sections 53 CrPC does not

enumerate certain other forms of medical examination that involve

testimonial acts, such as psychiatric examination among others.

This demonstrates that the amendment to this provision was

informed by a rational distinction between the examination of

physical substances and testimonial acts.

****** ****** ******

195. We must remember that the law does provide for

some restrictions on “personal liberty” in the routine exercise of

police powers. For instance, the CrPC incorporates an elaborate

scheme prescribing the powers of arrest, detention, interrogation,

search and seizure. A fundamental premise of the criminal justice

system is that the police and the judiciary are empowered to

exercise a reasonable degree of coercive powers. Hence, the

provision that enables courts to order a person who is under

arrest to undergo a medical examination also provides for the use

of “force as is reasonably necessary” for this purpose. It is evident

that the notion of “personal liberty” does not grant rights in the

absolute sense and the validity of restrictions placed on the same

27

needs to be evaluated on the basis of criterion such as “fairness, non- arbitrariness, and reasonableness”.

****** ****** ******

220. In the present case, written submissions made on

behalf of the respondents have tried to liken the compulsory

administration of the impugned techniques with the DNA profiling

technique. In light of this attempted analogy, we must stress that

the DNA profiling technique has been expressly included among

the various forms of medical examination in the amended

Explanation to Sections 53 CrPC. It must also be clarified that a

“DNA profile” is different from a DNA sample which can be

obtained from bodily substances. A DNA profile is a record created

on the basis of DNA samples made available to forensic experts.

Creating and maintaining DNA profiles of offenders and suspects

are useful practices since newly obtained DNA samples can be

readily matched with existing profiles that are already in the

possession of law-enforcement agencies. The matching of DNA

samples is emerging as a vital tool for linking suspects to specific

criminal acts.

221. It may also be recalled that the as per the majority

decision in State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC

1808, the use of material samples such as fingerprints for the

purpose of comparison and identification does not amount to a

testimonial act for the purpose of Article 20(3). Hence, the taking

and retention of DNA samples which are in the nature of physical

evidence does not face constitutional hurdles in the Indian

context. However, if the DNA profiling technique is further

developed and used for testimonial purposes, then such uses in

the future could face challenges in the judicial domain.”

(emphasis supplied)

28

22. In the matter of right to privacy, culled out of

the provisions of Article 21 and other provisions of the

Constitution relating to Fundamental Rights, read with,

Directive Principles of State Policy, Apex Court, in Mr. ‘X’

Vs. HOSPITAL ‘Z’, (1998) 8 SCC 296, has held as follows:

“26. As one of the basic Human Rights, the right of privacy

is not treated as absolute and is subject to such action as may be

lawfully taken for the prevention of Crime or disorder or protection

of health or morals or protection of rights and freedoms of others.

27. Right of privacy may, apart from contract, also arise

out of a particular specific relationship which may be commercial,

matrimonial, or even political. As already discussed above, doctor-

patient relationship, though basically commercial, is,

professionally, a matter of confidence and, therefore, doctors are

morally and ethically bound to maintain confidentiality. In such a

situation, public disclosure of even true private facts may amount

to an invasion of the right of privacy which may sometimes lead to

the clash of one person's "right to be let alone" with another

person's right to be informed.

28. Disclosure of even true private facts has the tenancy to

disturb a person's tranquility. It may generate many complexes in

him and may even lead to psychological problems. He may,

thereafter, have a disturbed life all through. In the face of these

potentialities, and as already held by this Court in its various

decisions referred to above, the right of privacy is an essential

component of right to life envisaged by Article 21. The right,

29

however, is not absolute and may be lawfully restricted for the

prevention of crime, disorder or protection of health or morals or

protection of rights and freedom of others.”

(emphasis supplied)

23. While holding that principles of secrecy is not

an absolute principle, in KULDIP NAYAR Vs. UNION OF INDIA,

(2006) 7 SCC 1, Apex Court has held as follows:

“463. The principle of secrecy is not an absolute principle.

The legislative amendment cannot be struck down on the

ground that a different or better view is possible. It is well

settled that a challenge to legislation cannot be decided on the

basis of there being another view which may be more

reasonable or acceptable. A matter within the legislative

competence of the legislature has to be left to the discretion and

wisdom of the latter so long as it does not infringe any

constitutional provision or violate the fundamental rights.”

(emphasis supplied)

24. In the matter of recurring violence against

women and the prevention of such crimes, Apex Court, in

INDIAN WOMAN SAYS GANG-RAPED ON ORDERS OF VILLAGE

COURT PUBLISHED IN BUSINESS AND FINANCIAL NEWS DATED

23-1-2014, IN RE,(2014) 4 SCC 786, has held as follows:

“10. Violence against women is a recurring crime across

the globe and India is no exception in this regard. The case at

30

hand is the epitome of aggression against a woman and it is

shocking that even with rapid modernization such crime persists

in our society. Keeping in view this dreadful increase in crime

against women, the Code of Criminal Procedure has been

specifically amended by recent amendment dated 03.02.2013 in

order to advance the safeguards for women in such

circumstances which are as under:-

“154. Information in cognizable cases.— (1) * * * *

Provided that if the information is given by the woman

against whom an offence under Section 326-A, Section 326-B,

Section 354, Section 354-A, Section 354-B, Section 354-C, Section

354-D, Section 376, Section 376-A, Section 376-B, Section 376-C,

Section 45 of 1860, Section 376-D, Section 376-E, or Section 509

of the Indian Penal Code is alleged to have been committed or

attempted, then such information shall be recorded, by a woman

police officer or any woman officer:

Provided further that-

(a) in the event that the person against whom an offence

under Section 354, Section 354-A, Section 354-B, Section 354-C,

Section 354-D, Section 376, Section 376-A, Section 376-B, Section

376-C, Section 376-D, Section 376-E, or Section 509 of the Indian

Penal Code is alleged to have been committed or attempted, is

temporarily or permanently mentally or physically disabled, then

such information shall be recorded by a police officer, at the

residence of the person seeking to report such offence or at a

convenient place of such person’s choice, in the presence of an

interpreter or a special educator, as the case may be;

(2) – (3) * * *

* * *

31

161. Examination of witnesses by police.- (1) – (3) * * * *

Provided further that the statement of a woman against

whom an offence under Section 354, Section 354-A, Section 354-

B, Section 354-C, Section 354-D, Section 376, Section 376-A,

Section 376-B, Section 376-C, Section 376-D, Section 376-E, or

Section 509 of the Indian Penal Code is alleged to have been

committed or attempted shall be recorded, by a woman police

officer or any woman officer.

* * *

164. Recording of confessions and statements.—

(1) – (5) * * * *

5-A. (a) In cases punishable under Section 354, Section

354-A, Section 354-B, Section 354-C, Section 354-D, sub-Section

(1) or sub-Section (2) of Section 376, Section 376-A, Section 376-

B, Section 376-C, Section 376-D, Section 376-E, or Section 509 of

the Indian Penal Code, the Judicial Magistrate shall record the

statement of the person against whom such offence has been

committed in the manner prescribed in sub-section (5), as soon as

the commission of the offence is brought to the notice of the

police:

164- A. Medical examination of the victim of rape.- (1)

Where, during the stage when an offence of committing rape or

attempt to commit rape is under investigation, it is proposed to get

the person of the woman with whom rape is alleged or attempted

to have been committed or attempted, examined by a medical

expert, such examination shall be conducted by a registered

medical practitioner employed in a hospital run by the

Government or a local authority and in the absence of such a

practitioner, by any other registered medical practitioner, with the

consent of such woman or of a person competent to give such

32

consent on her behalf and such woman shall be sent to such

registered medical practitioner within twenty-four hours from the

time of receiving the information relating to the commission of

such offence.

(2) The registered medical practitioner, to whom such

woman is sent shall, without delay, examine her person and

prepare a report of his examination giving the following

particulars, namely--

(i) the name and address of the woman and of the

person by whom she was brought;

(ii) the age of the woman;

(iii) the description of material taken from the person of

the woman for DNA profiling;

(iv) marks of injury, if any, on the person of the woman;

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail,

(3) The report shall state precisely the reasons for each

conclusion arrived at.

(4) The report shall specifically record that the consent

of the woman or of the person competent, to give such consent on

her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of

the examination shall also be noted in the report.

(6) The registered medical practitioner shall, without

delay forward the report to the investigating officer who shall

forward it to the Magistrate referred to in section 173 as part of

the documents referred to in clause (a) of sub-section (5) of that

section.

(7) Nothing in this section shall be construed as

rendering lawful any examination without the consent of the

33

woman or of any person competent to give such consent on her

behalf.

Explanation.- For the purposes of this section, ‘examination’

and ‘registered medical practitioner’ shall have the same meanings

as in Section 53.

11. The courts and the police officials are required to be

vigilant in upholding these rights of the victims of crime as the

effective implementation of these provisions lies in their hands.

In fact, the recurrence of such crimes has been taken note of by

this Court in few instances and seriously condemned in the

ensuing manner.”

(emphasis supplied)

25. The Code permits a registered medical

practitioner to use modern and scientific techniques

including DNA profiling and other tests, which he thinks

necessary for the examination of a person accused of rape

or attempt to commit rape, in order to assist forensic

investigation.

26. In DHARAM DEO YADAV Vs. STATE OF UTTAR

PRADESH, (2014) 5 SCC 509, with regard to the meaning and

importance of DNA test, Apex Court, has held as follows:

“36. The DNA stands for deoxyribonucleic acid, which is the

biological blueprint of every life. DNA is made-up of a double

standard structure consisting of a deoxyribose sugar and

34

phosphate backbone, cross-linked with two types of nucleic acids

referred to as adenine and guanine, purines and thymine and

cytosine pyrimidines. The most important role of DNA profile is in

the identification, such as an individual and his blood relations

such as mother, father, brother, and so on. Successful

identification of skeleton remains can also be performed by DNA

profiling. DNA usually can be obtained from any biological

material such as blood, semen, saliva, hair, skin, bones, etc. The

question as to whether DNA tests are virtually infallible may be a

moot question, but the fact remains that such test has come to

stay and is being used extensively in the investigation of crimes

and the court often accepts the views of the experts, especially

when cases rest on circumstantial evidence. More than half a

century, samples of human DNA began to be used in the criminal

justice system. Of course, debate lingers over the safeguards that

should be required in testing samples and in presenting the

evidence in court. DNA profile, however, is consistently held to be

valid and reliable, but of course, it depends on the quality control

and quality assurance procedures in the laboratory. Close

relatives have more genes in common than individuals and

various procedures have been proposed for dealing with a

possibility that true source of forensic DNA is of close relative.”

(emphasis supplied)

27. The tremendous impact of DNA profile,

on forensic investigation, in ANIL ALIAS ANTHONY

ARIKSWAMY JOSEPH Vs. STATE OF MAHARASHTRA, (2014) 4

SCC 69, Apex Court, has held as follows:

35

“18. Deoxyribonucleic acid, or DNA, is a molecule that

encodes the genetic information in all living organisms. DNA

genotype can be obtained from any biological material such as

bone, blood, semen, saliva, hair, skin, etc. Now, for several years,

DNA, profile has also shown a tremendous impact on forensic

investigation. Generally, when DNA profile of a sample found at

the scene of crime matches with the DNA profile of the suspect, it

can generally be concluded that both the samples have the same

biological origin. DNA profile is valid and reliable, but variance in

a particular result depends on the quality control and quality

procedure in the laboratory.”

(emphasis supplied)

28. In STATE OF GUJARAT VS. KISHANBHAI AND

OTHERS, (2014) 5 SCC 108, with regard to the need for DNA

profile by the investigating agency, on account of the

advancement in scientific investigation, Apex Court, has

held as follows:

“12.7.5. There has now been a great advancement in

scientific investigation on the instant aspect of the matter. The

investigating agency ought to have sought DNA profiling of the

blood samples, which would have given a clear picture whether or

not the blood of the victim Gomi was, in fact on the clothes of the

accused-respondent Kishanbhai. This scientific investigation

would have unquestionably determined whether or not the

accused-respondent was linked with the crime.”

(emphasis supplied)

36

29. The essence of police investigation is skillful

inquiry and collection of material evidence in a manner by

which the potential and culpable person is not forewarned.

The inquiry and investigation into an offence is the domain

of the police. If the potential culpable person is made

known in advance, as to the nature of examination that

would be conducted, in terms of Section 53-A of the Code

by the Registered Medical Practitioner, nothing material

remains for the Police Officer to collect the material for

further investigation and submission of the final report.

Based on the material collected during the course of

investigation and the material taken from the person of the

accused, the DNA profiling can be done by the Medical

Practitioner. Thus, the contention advanced, that not

making known in the notice vide Annexure - ‘S’, the nature

of test itself, would show arbitrariness, does not command

acceptance.

30. In DHARAM DEO YADAV (supra), Apex Court,

while emphasizing the necessity of promoting scientific

37

evidence also to detect and prove crimes over and above

the other evidence, has observed as follows:

“30. The criminal justice system is this country is at

crossroads. Many a times, reliable, trustworthy, credible witnesses

to the crime seldom come forward to depose before the court and

even the hardened criminals get away from the clutches of law.

Even the reliable witnesses for the prosecution turn hostile due to

intimidation, fear and host of other reasons. The investigating

agency has, therefore, to look for other ways and means to

improve the quality of investigation, which can only be through

the collection of scientific evidence. In this age of science, we have

to build legal foundations that are sound in science as well as in

law. Practices and principles that served in the past, now people

think, must give way to innovative and creative methods, if we

want to save our criminal justice system. Emerging new types of

crimes and their level of sophistication, the traditional methods

and tools have become outdated, hence the necessity to

strengthen the forensic science for crime detection. Oral evidence

depends on several facts, like power of observation, humiliation,

external influence, forgetfulness etc., whereas forensic evidence is

free from those infirmities. Judiciary should also be equipped to

understand and deal with such scientific materials. Constant

interaction of Judges with scientists, engineers would promote

and widen their knowledge to deal with such scientific evidence

and to effectively deal with criminal cases based on scientific

evidence. We are not advocating that, in all cases, the scientific

evidence is the sure test, but only emphasizing the necessity of

38

promoting scientific evidence also to detect and prove crimes over

and above the other evidence.

31. Scientific evidence encompasses the so-called hard

science, such as physics, chemistry, mathematics, biology and

soft science, such as economics, psychology and sociology.

Opinions are gathered from persons with scientific, technical or

other specialized knowledge, whose skill, experience, training or

education may assist the Court to understand the evidence or

determine the fact in issue. Many a times, the Court has to deal

with circumstantial evidence and scientific and technical evidence

often plays a pivotal role……”

(emphasis supplied)

31. In KRISHAN KUMAR MALIK Vs. STATE OF

HARYANA, (2011) 7 SCC 130, taking note of incorporation of

Section 53-A in the Code, Apex Court, has observed as

follows:

“44. Now, after the incorporation of Section 53-A in the

Criminal Procedure Code w.e.f. 23-6-2006, brought to our notice

by the learned counsel for the respondent State, it has become

necessary for the prosecution to go in for DNA test in such type of

cases, facilitating the prosecution to prove its case against the

accused. Prior to 2006, even without the aforesaid specific

provision in Cr.P.C. the prosecution could have still resorted to

this procedure of getting the DNA test or analysis and matching of

semen of the appellant with that found on the undergarments of

39

the prosecutrix to make it a foolproof case, but they did not do so,

thus they must face the consequences.”

(emphasis supplied)

32. In SHARDA Vs. DHARMPAL, (2003) 4 SCC 493,

Apex Court, having outlined the law relating to, ‘right to

privacy in India’, by taking notice of certain laws enacted

by the Indian Parliament, where the accused may be

subjected to certain medical or other tests, has observed

as follows:

“62. By way of example, we may refer to Sections 185,

202, 203, 204 of the Motor Vehicles Act, Sections 53 and 54 of

the Code of Criminal Procedure and Section 3 of the

Identification of Prisoners Act, 1920. Reference in this

connection may also be made to Sections 269 and 270 of the

Indian Penal Code. Constitutionality of these laws, if challenge

is thrown, may be upheld.”

(emphasis supplied)

33. In SARWAN SINGH LAMBA Vs. UNION OF INDIA,

(1995) 4 SCC 546, in the context of Article 141 – Obiter –

binding effect, it was held that “Normally even an obiter

dictum is expected to be obeyed and followed.” In

ORIENTAL INSURANCE CO. LTD. Vs. MEENA VARIYAL, (2007) 5

40

SCC 428, with regard to the effect of obiter dictum, it was

held that “an obiter dictum of the Apex Court may be

binding only on the High Courts in the absence of a direct

pronouncement on that question elsewhere by the Apex

Court.” Learned Senior Advocates for the petitioner, did

not bring to the notice of this Court, any direct

pronouncement of the Apex Court or any other High Court,

rendered on the Constitutional validity of S.53-A of the

Code.

34. It is clear from para 224 of the SELVI’s case,

that, ordinary exercise of police powers contemplate

restraints of a physical nature such as extraction of bodily

substances and use of reasonable force for subjecting a

person to a medical examination. Such an exercise does

not fall foul of Clause (3) of Article 20 nor violate Article 21

of the Constitution.

35. Section 53-A of the Code does not infringe any

constitutional provision. It cannot be found to be violative

of fundamental rights in part III of the Constitution. In the

41

circumstances, Section 53-A of the Code cannot be struck

down as unconstitutional.

36. Now, I deal with the question relating to the question relating to the question relating to the question relating to the

legality legality legality legality or otherwise or otherwise or otherwise or otherwise of the impugned Police Notice, as at of the impugned Police Notice, as at of the impugned Police Notice, as at of the impugned Police Notice, as at

Annexure Annexure Annexure Annexure ----‘S’‘S’‘S’‘S’.

37. Learned Senior Advocates for the petitioner

contended that there being no reasonable grounds and

with a view to cause damage to the dignity of the

petitioner, the impugned notice was served. They

submitted that the second respondent has exercised the

power in breach of Section 53-A of the Code, putting the

personal liberty of the petitioner in jeopardy. It was

contended that in the absence of specification of the

test/s, the reasonableness in the matter of issuance of

Annexure- ‘S’ cannot be tested. They submitted that there

is abuse of power and process by the second respondent

and the impugned notice being not bona fide and/or on

reasonable grounds, the same is liable to be quashed.

42

38. Learned Advocate General, on the other hand,

contended that the investigation into an offence being

within the domain of the Police and investigation in respect

of crime in question having commenced and certain

materials having become available during the course of

investigation and there being reasonable grounds for

believing that an examination of the person of the

petitioner will afford evidence as to the commission of

offence of rape, notice vide Annexure - ‘S’ was served on

the petitioner. He contended that the action of the second

respondent in the matter of serving of the said notice,

being in conformity with Section 53-A, interference in the

matter of investigation of the crime by the Police is not

permissible. He submitted that this petition is motivated

to delay the investigation of the crime by the Police. He

further submitted that the petitioner is not acting in terms

of the conditions in the order enlarging him on bail, which

stipulate that he shall extend co-operation in the matter of

investigation by the police. Learned Advocate General

submitted that there being no breach of any statutory

43

provision by the Investigating Authority, interference in

the matter of investigation is not permissible.

39. Section 2(h) of the Code defines investigation,

to include, all the proceedings under the Code for

collection of evidence conducted by the Police Officer or by

any person (other than the Magistrate) who is authorized

by a Magistrate in this behalf. Section 156 of the Code

enables any Police officer in charge of the Police Station to

investigate a cognizable offence. The inquiry and

investigation into an offence is the domain of the police.

The aim of the investigation is search for truth and bring

the offender to book. The essence of Police investigation is

skilful inquiry and collection of material evidence, by

which, truth can be ascertained and the offender may be

brought to book.

40. In H.N.RISHBUD AND ANOTHER Vs. STATE OF

DELHI, AIR 1955 SC 196, Apex Court, has explained that

investigation generally consists of the following steps:

(i) Proceeding to the spot;

44

(ii) Ascertaining the facts and circumstances of the

case;

(iii) Discovery and arrest of the suspected offender;

(iv) Collection of evidence relating to the commission of

the offence, which may consists of examination of;

(a) various persons (including the accused) and

reduction of statement into writing, (b) searching

of the places and seizure of things considered

necessary for the investigation and to be produced

at the time of trial;

(v) Formation of the opinion as to whether on the

materials collected, there is truth and to place the

accused before the Magistrate for trial, if so, to

take necessary steps for the same for filing charge

sheet under Section 173 of Cr.P.C.

41. In STATE OF BIHAR AND ANOTHER Vs.

J.A.C.SALDANHA AND OTHERS, 1980 (1) SCC 554, with regard

to power of investigation into a cognizable offence,

contained in the Code, Apex Court, has held as follows:-

“25. There is a clear-cut and well demarcated sphere of

activity in the field of crime detection and crime punishment.

Investigation of an offence is the field exclusively reserved for the

executive through the police department the superintendence over

which vests in the State Government. The executive which is

charged with a duty to keep vigilance over law and order situation

is obliged to prevent crime and if an offence is alleged to have been

45

committed it is its bounden duty to investigate into the offence

and bring the offender to book. Once it investigates and finds an

offence having been committed it is its duty to collect evidence for

the purpose of proving the offence. Once that is completed and the

investigating officer submits report to the Court requesting the

Court to take cognizance of the offence under Section 190 of the

Code its duty comes to an end. On a cognizance of the offence

being taken by the Court the police function of investigation

comes to an end subject to the provision contained in Section

173(8), there commences the adjudicatory function of the judiciary

to determine whether an offence has been committed and if so,

whether by the person or persons charged with the crime by the

police in its report to the Court, and to award adequate

punishment according to law for the offence proved to the

satisfaction of the Court. There is thus a well defined and well

demarcated function in the field of crime detection and its

subsequent adjudication between the police and the Magistrate.

This has been recognised way back in King Emperor v. Khwaja

Nazir Ahmad, AIR 1994 PC 18, where the Privy Council observed

as under:

In India, as has been shown, there is a statutory right on

the part of the police to investigate the circumstances of an alleged

cognizable crime without requiring any authority from the judicial

authorities and it would, as their Lordships think, be an

unfortunate result if it should be held possible to interfere with

those statutory rights by an exercise of the inherent jurisdiction of

the Court. The functions of the judiciary and the police are

complementary, not overlapping, and the combination of

individual liberty with a due observance of law and order is only to

46

be obtained by leaving each to exercise its own function, always, of

course, subject to the right of the Court to intervene in an

appropriate case when moved under Section 491 of the Criminal

Procedure Code to give directions in the nature of habeas corpus.

In such a case as the present, however, the Court's functions

begin when a charge is preferred before it, and not until then".

(emphasis supplied)

42. In MANOHAR LAL SHARMA VS. PRINCIPAL

SECRETARY AND OTHERS, 2014(2) SCC 532, with regard to

the role of the police in the matter of investigation of an

offence in the criminal justice system, Apex Court, has

held as follows:

“24. In the criminal justice system the investigation of an

offence is the domain of the police. The power to investigate into

the cognizable offences by the police officer is ordinarily not

impinged by any fetters. However, such power has to be exercised

consistent with the statutory provisions and for legitimate

purpose. The courts ordinarily do not interfere in the matters of

investigation by police, particularly, when the facts and

circumstances do not indicate that the investigating officer is not

functioning bona fide. In very exceptional cases, however, where

the Court finds that the police officer has exercised his

investigatory powers in breach of the statutory provision putting

the personal liberty and/or the property of the citizen in jeopardy

by illegal and improper use of the power or there is abuse of the

investigatory power and process by the police officer or the

47

investigation by the police is found to be not bona fide or the

investigation is tainted with animosity, the Court may intervene to

protect the personal and/or property rights of the citizens.

25. Lord Denning in his work “The Due Process of Law”,

has described the role of the police thus:

“In safeguarding our freedoms, the police play vital role.

Society for its defence needs a well-led, well-trained and

well-disciplined force or police whom it can trust; and

enough of them to be able to prevent crime before it

happens, or if it does happen, to detect it and bring the

accused to justice.

The police, of course, must act properly. They must obey

the rules of right conduct. They must not extort confessions

by threats or promises. They must not search a man’s

house without authority. They must not use more force

than the occasion warrants.”

26. One of the responsibilities of the police is protection of

life, liberty and property of citizens. The investigation of offences is

one of the important duties the police has to perform. The aim of

investigation is ultimately to search for truth and bring the

offender to book.”

(emphasis supplied)

43. During the course of hearing of this petition,

the Investigating Officer was directed to produce the

record, which made him to believe that an examination, as

contemplated under Section 53-A of the Code is necessary.

48

The Investigating Officer made available to the Court, the

relevant record. It was found that during the course of

investigation, certain materials have been collected from

the alleged victim and the same are required to be

matched with the material taken from the person of the

accused for the purpose of DNA profiling. Thus, the notice

as at Annexure ‘S’, has not been issued with any animosity

or to put the personal liberty of the petitioner and/or the

property of the petitioner in jeopardy. I am satisfied that

there is no improper use of the investigatory power and

process by the Investigating Officer. With the aim of

searching the truth, notice at Annexure ‘S’ has been

served on the petitioner. Hence, no interference with

Annexure - ‘S’ is called for.

In view of the foregoing, this petition being devoid of

merit, is dismissed, with no order as to costs.

Consequently, I.As. 2 and 3 of 2014, do not survive

for consideration.

Sd/- JUDGE

sac*