P.N. Prakash, J.
1. This petition has been filed to set aside the order dated 18.03.2016 made in Crl.M.P.No. 25 of 2016 in Special S.C.No. 17 of 2015 on the file of the District Judge/Mahila Court, Perambalur.
2. The seminal question that falls for determination in this case is "Can a criminal Court direct a prosecution witness and her child to subject themselves to DNA profiling along with the accused?"
3. Before venturing to answer this question, it is essential to narrate the factual matrix of this case.
4. For the sake of convenience, the parties will be referred to by their name.
5. On the complaint lodged by one Prema, the All Women Police Station, Perambalur, registered a case in Cr.No. 7 of 2015 on 12.03.2015 under Sections 417, 376, 294(b) and 506(i) IPC; Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for brevity "the POCSO Act") and Sections 9, 10 and 11 of Prohibition of Child Marriage Act, 2006 against (1) Manikandan (2) Karuppayee [mother of Manikandan], (3) Anjalai [sister of Manikandan] and (4) Arumugam [relative of Manikandan].
6. Prema, a 21 year old village belle and Manikandan, aged about 27 years, were neck deep in love some time around 2011 onwards. It is alleged by Prema that Manikandan seduced her by promising to marry her and that she succumbed to his carnal pleasure. It is alleged by her that on 07.07.2014, Manikandan took her to his house and tied a Thali on her and had sex with her that night. When Manikandan's mother and relatives came to know of it, they opposed the relationship and drove Prema out of the house.
7. On 08.07.2014, around 9.00 a.m., a panchayat was held in the village by the elders of the community, in which, Manikandan's relatives suggested that Manikandan should marry his sister's minor daughter "X" as his first wife and could take Prema as his second wife. This proposal was spurned by Prema. Therefore, the panchayat did not make any headway. It is finally alleged by Prema that Manikandan married "X", a minor on 09.03.2015, and refused to marry her. Hence, the FIR.
8. On 17.03.2015, the police took minor "X" and produced her before the Child Welfare Committee comprising Mr. Mohammed Hussain - Chairman, Mrs.Leema Peter - Member and Mr. Mohammed Ilias - Member and recorded her statement. Before the Child Welfare Committee, "X" stated that Manikandan is her maternal uncle and that her family members made her live with Manikandan and she became pregnant, on coming to know of which, she was married to Manikandan on 09.03.2015.
9. From the records collected by the police, it is seen that "X" was examined by Dr. R. Rajeshwari, M.B.B.S, D.G.O., in Siva Hospital on 06.03.2015 and she was found to be four months pregnant. It may be relevant to state here that according to "X", the marriage was solemnised subsequently on 09.03.2015, by which time, the foetus in her womb was four months old.
10. On 17.03.2015, "X" was subjected to medical examination at the Government Hospital, Perambalur, at the instance of the police. The Medical Officer who examined her, has opined that, she is on the family way and is carrying a three month old foetus. Her age was determined as between 15 and 17. Similarly, Prema and Manikandan were also subjected to medical examination and the opinion given by the doctor was that Manikandan is potent.
11. On 19.03.2015, the police produced "X" and Prema before the Judicial Magistrate, Perambalur for recording their statements under Section 164(5) Cr.P.C. Prema narrated the entire facts known to her and they have been disclosed in the FIR to the Magistrate.
12. Since "X" was a minor, the Judicial Magistrate, Perambalur, recorded her statement in-camera and it was also video-graphed. The Magistrate put certain preliminary questions to "X" and after being satisfied that she is capable of understanding and answering, she was asked to narrate what she knew about the case under enquiry, for which, she simply stated "He is my maternal uncle, I do not know anything else and I do not wish to give any statement."
13. The police completed the investigation after recording the statement of several witnesses and ultimately, filed the Final Report on 02.07.2015 before the Mahila Court, Perambalur against the four accused named in the FIR and also against Mookkan [A5] and Kamatchi [A6], the parents of "X" for various offences under the IPC, POCSO Act and Prohibition of Child Marriage Act, 2006. Cognizance was taken on the Final Report in Spl.S.C.No. 17 of 2015 by the Mahila Court, Perambalur and on the appearance of the accused, they were furnished with the copies of the Final Report and documents under Section 207 Cr.P.C.
14. The police obtained the Date of Birth Certificate of "X" from the Headmaster of the School where she studied, to the effect that she was born on 10.04.1997. This means that when the FIR was registered on 12.03.2015, "X" was about 17 years and 11 months old. When she was subjected to medical examination on 17.03.2015 at the Government Hospital, she was of the same age and was pregnant.
15. After the charge sheet was filed on 02.07.2015, "X" delivered a male child, "Y", on 07.09.2015 at the Government Hospital, Perambalur. The Birth Certificate of "Y" shows his father's name as Manikandan. Thus, from the above narration of dates and events, it is seen that charge sheet was filed before the Mahila Court on 02.07.2015 and only thereafter, on 07.09.2015, "X" delivered "Y".
16. The accused filed Crl.O.P.No. 23634 of 2015 before this Court for quashing the Final Report and this Court, by an order dated 06.10.2015, quashed the prosecution as against Mookkan [A5] and Kamakshi [A6]. The petition against A1 to A4 was dismissed. The following charges were framed against A1 to A4 by the Mahila Court on 22.12.2015:
"Charge-1 against A1 u/s 417 IPC
Charge-2 against A1 u/s 376 IPC
Charge-3 against A1 to A4 u/s 294(b) IPC
Charge-4 against A1 to A4 u/s 506(i) IPC
Charge-5 against A1 u/s 5(j)(ii) r/w 6 of POCSO Act 2012
Charge-6 against A1 to A5 u/s 9 of Prohibition of Child Marriage Act, 2006 - for arranging the marriage of minor Saranya with 1st accused on 9.3.15
Charge-7 against A1 to A4 u/s 10 of Prohibition of Child Marriage Act, 2006
Charge-8 against A1 to A4 u/s 11 of Prohibition of Child Marriage Act, 2006"
17. Trial commenced with the examination of Prema as P.W.1 on 08.01.2016. Prema supported the prosecution case in all fours, but in the cross examination, she stated that she did not have personal knowledge of the marriage of Manikandan with "X", as it was done secretly in Manikandan's house. Sumathi [P.W.2], Prema's mother corroborated Prema's testimony to some extent.
18. When "X" was put in the witness box on 08.01.2016, she was 18 years and 7 months old, despite which, she was treated as a child and the Sessions Judge conducted preliminary enquiry in order to ascertain whether she is capable of understanding and giving evidence. The Sessions Judge was satisfied that she is capable of answering the questions. Since trial under the POCSO Act should be conducted by screening the offenders from the sight of the victims, the accused were made to stand behind a screen, out of "X's" sight. The counsel for the accused and the Public Prosecutor were permitted to be present beside her. The Public Prosecutor commenced the chief examination by asking her what she knew about the case, in response to which, she stated as follows:
"I do not know anything about this case. The name of my husband is Manikandan. The child I am having now was born to me through Manikandan. I did not marry my maternal uncle Manikandan. My husband is not my maternal uncle Manikandan. My husband Manikandan is abroad. I got married one year back. I do not know the date of my marriage. My child is four months old. My father-in-law died. I do not know my mother-in-law's name. At present, I am in my mother's house."
19. For the purpose of identification of the accused, the screen was moved and on showing the accused, "X" identified them as her relatives and she further stated that Manikandan [A1] is her maternal uncle and that she has not married him. She was not treated as a hostile witness. In the cross examination by the defence, she stated that she did not have any physical relationship with Manikandan (A1) and that the police did not examine her.
20. To recapitulate the dates and events:
(a) "X" was produced before the members of the Child Welfare Committee on 17.03.2015, where she stated that she was made to live with Manikandan and later, her marriage was performed.
(b) When she was produced before the Judicial Magistrate, Perambalur on 19.03.2015 for recording her statement under Section 164(5) Cr.P.C., she stated, "He is my maternal uncle, I do not know anything else and I do not wish to give any statement."
21. The prosecution examined a few other witnesses like those who conducted the village panchayat and as usual, most of them turned turtle and did not support the prosecution case.
22. In the meantime, the police collected the Birth Certificate of "Y" (the child of "X") and also two reports from the Village Administrative Officers of the villages, where, "X" was earlier residing and is presently residing to the effect that they knew that "X" married Manikandan [A1] and had begotten "Y". The Birth Certificate of "Y" shows his father's name as Manikandan.
23. Armed with these materials, the Public Prosecutor filed a petition in Crl.M.P.No. 25 of 2016 in Spl.S.C.No. 17 of 2015 before the trial Court for a direction to "X" and her child to undergo DNA profiling along with Manikandan [A1]. Manikandan [A1] did not contest the petition, and agreed to undergo the DNA profiling, whereas, "X" engaged a counsel and filed her objections for subjecting herself and her child to DNA analysis. The trial Court allowed the petition filed by the prosecution by the impugned order dated 18.03.2006, challenging which "X" is before this Court.
24. Since the matter involved intricate questions of law, this Court felt the need for a thorough legal research for answering the vexed question that has been formulated supra, and hence, requested Mr.Sharath Chandran, learned counsel, to act as Amicus Curiae.
25. Heard Mr.B.Kumarasamy, learned counsel for "X" Mr.C.Emalias, learned Additional Public Prosecutor for the State and Mr. Sharath Chandran, learned Amicus Curiae.
26. Mr.Kumarasamy, learned counsel, with all the force at his command, submitted that even before the Judicial Magistrate, Peramablur, "X" did not give any statement u/s 164(5) Cr.P.C. "X" is neither the de facto complainant in this case nor the victim who had set the criminal law in motion. She was summoned by the trial Court as a prosecution witness and she told the Court that Manikandan/A1 is not her husband; that the child was not born through him and that her husband Manikandan is abroad. Therefore, the trial Court cannot compel "X" and her child to submit themselves for DNA profiling, as that would invade her privacy. In support of this contention, he placed strong reliance upon the following judgments:
(1) Goutam Kundu v. State of West Bengal and another [(1999) 3 SCC 418]
(2) Sharda v. Dharmpal [(2003) 4 SCC 493]
(3) X v. Y [CDJ 2001 DHC 1634]
27. Relying upon the aforesaid judgments, he submitted that "X" cannot be directed to submit herself and "Y" for DNA profiling. By doing that, it may have the consequence of bastardising "Y", which should not be permitted and that she has a Right to privacy under Article 21 of the Constitution of India.
28. Mr.C.Emalias, learned Additional Public Prosecutor submitted that before making the prayer for DNA profiling, the police have collected prima facie materials like the Birth Certificate of "Y" and certificates from two Village Administrative Officers to show that the accused Manikandan has fathered the child. That apart, "X" is not willing to divulge the details of her husband who is said to be abroad and therefore, she is lying in the witness stand. Under such circumstances, the order passed by the trial Court cannot be said to be illegal.
29. Mr. Sharath Chandran, learned Amicus Curiae placed the following materials before this Court in support of the discussion at hand:
1. Witness Identity Protection and Witness Protection Programmes - Justice M.Jagannadha Rao, Chairman, Law Commission of India
2. Extract of the report of the 198th Law Commission, August 2006
3. Goutam Kundu v. State of West Bengal and another [(1993) 3 SCC 418]
4. Sharda v. Dharmpal [(2003) 4 SCC 493]
5. Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another [(2014) 2 SCC 576]
6. Dipanwita Roy v. Ronobroto Roy [(2015) 1 SCC 365]
7. Bappaditya Ghosh v. The State of West Bengal and another [(2016) 2 Cal LT 157]
8. H.G. Shoba v. The State by Kunigal Police and another [Cr Petition 3905 of 2011]
9. Devappal Halageri v. State of Karnataka [Cr Petition 101791 of 2014]
10. The Queen v. Gopal Doss and another [ILR 3 Madras 271]
11. R. Dineshkumar alias Deena v. State rep by Inspector of Police and others [(2015) 7 SCC 497]
12. S v. McC. [1972 AC 24]
13. In re H. (A Minor) (Blood Tests : Parental Rights) [1997 5 Fam 89]
30. He placed reliance on paragraph 4.2 of the 198th Law Commission Report, which reads as under:
"4.2. Between 1958 and 2004, there has been a total change in the crime scene, in as much as, not only crime has increased and cases of convictions have drastically fallen, but there is more sophistication in the manner of committing offences for, today, the offender too has the advantages of advances in technology and science. There are now more hostile witnesses than before and the witnesses are provided allurements or are tampered with or purchased and if they remain firm, they are pressurised or threatened or even eliminated. Rape and sexual offence cases appear to be the worst affected by these obnoxious methods."
31. He submitted that DNA profiling is a perfect science and that such a powerful tool should not be left unused on a vague plea of invasion of privacy, as private interest should necessarily give way to public interest. Relying on the judgment of the Supreme Court in Selvi v. State of Karnataka [(2010) 7 SCC 263], he further submitted that the accused himself does not have a constitutional protection against self incrimination under Article 20(3) of the Constitution of India vis-a-vis DNA profiling, and that, a witness who is required to aid in the administration of justice can have no better right.
32. This Court gave its anxious consideration to the submissions made across the Bar.
33. One of the tertiary arguments that was advanced at the Bar was that the POCSO Act cannot be invoked to criminalise marital sex between a man and a girl above the age of 15 and below 18.
34. In my opinion, this is merely an academic argument, because it is not the stand of either Manikandan or "X" that they were married. On the contrary, it is their specific stand that they were never married and they had no physical relationship whatsoever. Therefore, the Court is not required to give answers for hypothetical questions.
35. All the reported judgments that were cited across the Bar relate to matrimonial disputes between spouses and no precedent was cited by either side on facts similar to this case. The question whether drawing of blood sample, hair, nail, etc, from the person of the accused would amount to testimonial compulsion is no more res integra in the light of the pronouncement of the 11 Judge Bench judgment of the Supreme Court in State of Bombay v. Kathi Kalu Oghad [AIR 1961 SC 1808]. In Selvi and others v. State of Karnataka (supra), the Supreme Court, after relying upon Kathi Kalu Oghad has held that DNA profiling of the accused will not amount to testimonial compulsion. Section 53 Cr.P.C. has been suitably amended and Section 53-A has been introduced in the Code with effect from 23.06.2006 to take care of the need to draw blood samples from the accused.
36. Coming to the witness, Section 132 of the Evidence Act states that a witness cannot refuse to answer a question on the ground that the answer is likely to incriminate him. If he gives a false answer, he will be liable for penal consequences for giving false evidence. The scope of Section 132 of the Evidence Act came up for discussion before a 5-Judge Bench of this Court in Queen v. Gopal Doss and another [ILR 3 Madras 271], in which three Judges held that the compulsion under Section 132 is by the Court and the minority view taken by Kernan and Muttusami Ayyar, JJ. was that the compulsion is by law and not by the Court. This judgment was considered by a learned single Judge of this Court in Deena v. State [2015 (1) MLJ (Crl.) 166]. But, the learned single Judge was bound by the majority view in Queen v. Gopal Doss (supra), though the discussion by him in the judgment shows that he was inclined to accept the minority view. Deena's case was taken up to the Supreme Court, where, in R. Dineshkumar alias Deena v. State rep. by Inspector of Police and others [(2015) 7 SCC 497], the Supreme Court upheld the minority view of Kernan and Muttusami Ayyar, JJ. and overturned the majority view propounded by Sir Charles A.Turner, KT., CJ, Innes and Kindersley, JJ . Thus, there is a legal compulsion on the witness who takes the witness-stand to answer any question that is put to him on a relevant fact and he does not enjoy any right of silence like an accused. In Selvi and others v. State of Karnataka (supra), the Supreme Court has compared the status of an accused and a witness in para 123, which reads as under:
"123. Even though Section 161(2) of the CrPC casts a wide protective net to protect the formally accused persons as well as suspects and witnesses during the investigative stage, Section 132 of the Evidence Act limits the applicability of this protection to witnesses during the trial stage. The latter provision provides that witnesses cannot refuse to answer questions during a trial on the ground that the answers could incriminate them. However, the proviso to this section stipulates that the content of such answers cannot expose the witness to arrest or prosecution, except for a prosecution for giving false evidence. Therefore, the protection accorded to witnesses at the stage of trial is not as wide as the one accorded to the accused, suspects and witnesses during investigation [under Section 161(2), CrPC]. Furthermore, it is narrower than the protection given to the accused during the trial stage [under Section 313(3) and Proviso (b) to Section 315(1), CrPC]. The legislative intent is to preserve the fact-finding function of a criminal trial."
37. The next line of inquiry is whether the witness and the child can be directed to undergo DNA profiling.
38. Mr. Kumarasamy, learned counsel, placed strong reliance on the judgment of the Supreme Court in Goutam Kundu case (supra) wherein, the following propositions have been laid down:
"26. From the above discussion it emerges-
(1) that courts in India cannot order blood test as a matter of course;
(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.
(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis."
39. The learned counsel relied on para 26 (4) and (5) in support of his submission. Much water appears to have flown after Goutam Kundu's case and the Supreme Court in Bhabani Prasad Jena v. Orissa State Commission for Women [(2010) 8 SCC 633], propounded the test of "eminent need" in the following words:
"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.
23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu v. State of West Bengal and Sharda v. Dharmpal. In Goutam Kundu it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course."
40. It is obvious that the Supreme Court was conscious of its earlier decision in Goutam Kundu's case and has expanded the scope of DNA profiling by propounding the "eminent need" test. In Sharda v. Dharmpal (supra), the Supreme Court went one step ahead and held that if the party does not subject himself/herself to DNA profiling, an adverse inference can be drawn under Section 114 of the Evidence Act. At the risk of repetition, the emphasis in all these judgments is that, such an adverse inference can be drawn only against a party to the lis. In this case, if "X" does not submit herself to DNA profiling, an adverse inference can be drawn only against her under Section 114 of the Evidence Act, but, that can, in no way help the Court to decide on the culpability or otherwise of Manikandan [A1]. Had Manikandan [A1] resisted the DNA petition, then an adverse inference can be drawn against him that he has fathered "Y". In this case, Manikandan [A1] has agreed, but "X" is resisting. We can take a leaf out of the judgment of the Supreme Court in Bhabani Prasad's case and import the "eminent need" test into a criminal proceeding, where the dire need is to arrive at the truth, as a criminal case is not a private lis between two individuals, but is concerned with bringing an offender to justice by unearthing the truth.
41. In this case, before the Child Welfare Committee, "X" stated that she had a physical relationship with Manikandan. This statement is inadmissible in evidence, as it has been recorded in the presence of a Police Officer and is, therefore, hit by Section 162 Cr.P.C. She changed track since the time she was produced before the Judicial Magistrate, Perambalur and continued to be hostile to the prosecution in the evidence before the trial Court. The police have not caught hold of a total stranger with a baby in order to falsely implicate Manikandan. Even according to "X", Manikandan is her maternal uncle and her husband's name is also Manikandan, but, he is abroad. She has not even come forward to give any further details about her husband Manikandan, so that it will be easier for the Court to summon him and ascertain the truth.
42. In the enquiry in Cr.M.P.No. 25 of 2016, the burden is on "X" to disclose to the Court, who and where her husband Manikandan is. At the time of enquiry in Cr.M.P.No.25 of 2016, "X" was a major and not a minor; and when she takes a stand that she does not even know the name of her parents-in-law and that her husband Manikandan is abroad, can the Court accept the ipse dixit and leave it at that? Is the criminal Court a lame duck? Is not an offence under the POCSO Act cognisable, empowering the police to register a suo motu FIR? In fact, Section 19 of the POCSO Act states that any person who has a knowledge that such an offence has been committed, has a duty to inform the police, on the failure of which, he will be punishable under Section 202 IPC. The argument of Mr. Kumarasamy that "X" is neither the de facto complainant nor a person who has grievance against Manikandan [A1] and therefore, she has no duty to the Court, deserves to be rejected in limine.
43. In Zahira Habibullah Sheikh and another v. State of Gujarat and others [(2006) 3 SCC 374], the Supreme Court has expatiated on the very purpose of the constitution of a criminal Court in the following words:
"30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial: the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences."
44. Administration of justice cannot be jeopardised in the hands of witnesses like "X" who have their own good reasons for not coming forward with the whole truth, despite the requirements imposed by Section 132 of the Evidence Act and Section 8 of the Oaths Act, 1969. Witnesses not speaking the truth is a cancer that is afflicting the health of the criminal justice system. This has been taken note of not only by the Supreme Court, but also by the Law Commission. Very recently, in the "Tenth Meeting of Advisory Council - National Mission for Justice Delivery System and Legal Reforms" held on 18.10.2016, the need to strengthen the adversarial system was dealt with as under:
(i) Need to strengthen the adversarial system: Analysing the international best practices, the Malimath Committee examined the inquisitorial system followed in France, Germany and other continental European countries. It recommended adopting some of the good features of the inquisitorial system in order to strengthen the adversarial system and to make it more effective. This includes; (i) the duty of the Court to search for the truth; (ii) assignment of more pro-active role to the judges to give directions to the investigation officers and prosecution agencies in the matter of investigation and leading evidence with the object of seeking the truth and focusing on justice to victim.3 in this regard, the Committee favoured incorporating a statement that Quest for truth shall be the fundamental duty of every court' immediately above Section 311 Cr.P.C. Consequently, the Committee recommended that Section 311 should be amended to state that "Any court may at any stage of any inquiry trial or proceeding under this Code .and the Court shall summon and examine or recall and reexamine any such person already examined as it appears necessary for discovering the truth."
45. Justice M. Jagannadha Rao, the then Chairman of the Law Commission of India, in a speech titled "Witness Identity Protection and Witness Protection Programmes" at a Seminar organised by Andhra Pradesh State Judicial Academy, Hyderabad, on 22.01.2015, pointed out as under:
"Before I go to the main topic of this Seminar, I want to say something about the need to use DNA. I think one way of getting round the problem of hostile witnesses is to go in for DNA fingerprints tests in every case, if such evidence is available. Today, the extensive use of DNA in almost every trial in other countries has changed the entire prosecution process. I am quite sure that DNA will put an end to the menace of hostile witnesses substantially. A person can be held not guilty where the DNA does not match. Where the DNA matches, it being a probability, guilt can be established if there is corroborative evidence, circumstantial or direct. DNA should be used extensively in the years to come and I am sure that such use will enable us to break through the present crisis created by hostile witnesses."
46. What is the source of power for a criminal Court to compel a witness to give his or her blood sample, hair or nail, etc?
47. In Sharda v. Dharmpal (supra), the Supreme Court has traced the power to Sections 75(e), 151 and Order 26 C.P.C. for a civil Court. For a criminal Court, there is no such specific power.
48. Section 91 Cr.P.C. reads as follows:
"91. Summons to produce document or other thing.- (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed-
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891(13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."
49. Section 311 Cr.P.C. reads as follows:
"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."
50. The following passage from U.T. of Dadra and Nagar Haveli and another v. Fatehsinh Mohansinh Chauhan [(2006) 7 SCC 529], would throw some light on the point of discussion.
"15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in the prosecution case" unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice."
This paragraph has been affirmed by the Supreme Court in Rajaram Prasad Yadav v. State of Bihar and another [(2013) 14 SCC 461].
51. Except the High Court, no criminal Court has inherent power unlike a civil Court under Section 151 C.P.C. However, a criminal Court, in order to arrive at the truth, is clothed with certain incidental powers/implied powers. This has been recognised by the Supreme Court in Savitri v. Govind Singh Rawat [(1985) 4 SCC 337]. The following passage from the said judgment is apposite.
"6. .......Every court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim "ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest" [Where anything is conceded, there is conceded also anything without which the thing itself cannot exist]. [Vide Earl Jowitt's Dictionary of English Law, 1959 Ed., p.1797] Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration."
52. A similar view has been echoed in Sakiri Vasu v. State of Uttar Pradesh and others [(2008) 2 SCC 409] in the following paragraphs:
"17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.
18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without social mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution.
19. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd Edn.,p.267):
".....If these details could not be inserted by implication, the drafting of legislation would be an interminable process and the legislative intent would likely be defeated by a most insignificant omission."
20. In ascertaining a necessary implication, the court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein."
53. On a reading of Sections 91 and 311 Cr.P.C. on the touchstone of the principle laid down in Fatehsinh Mohansinh Chauhan's case, Savitri's case and Sakiri Vasu's case, the power of a criminal Court to send a witness for DNA profiling can be traced to Section 91 and the second limb of Section 311 Cr.P.C.
54. The word "thing" employed in Section 91, Cr.P.C., has a very wide meaning and would take within its fold, blood samples, hair, nail, etc. of a person. Though the literal and strict construction of Section 91 Cr.P.C. may not admit of such an interpretation, yet the Code is only a procedural law and procedure is only a hand maid of justice and not its master. It may be apt to quote the following lines from the Constitution Bench judgment of the Supreme Court in Willie (William) Slaney v. State of Madhya Pradesh [AIR 1956 SC 116]:
"The Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities."
55. From a conspectus of the aforesaid discussion, this Court is of the view that the source of power for a criminal Court to subject a witness and her child to DNA analysis flows from Section 91 read with the second limb of Section 311 Cr.P.C.and Section 45 of the Evidence Act.
56. As regards the contention of Mr. Kumarasamy, learned counsel, that if "X" and her child are subject to DNA profiling, it is likely to result in bastardising of the child, this issue has already been discussed by the Supreme Court in Dipanwita Roy v. Ronobroto Roy [(2015) 1 SCC 365] and was rejected with a caveat in the following words:
"18 .........This course has been adopted to preserve the right of individual privacy to the extent possible. Of course, without sacrificing the cause of justice. By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under Section 112 of the Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved."
57. In the case at hand, it is not the paternity of the child that is in issue. The issue before this Court is whether Manikandan [A1] has committed an offence under the POCSO Act. The issue of legitimacy would only be incidentally involved. One has to see the picture on a larger canvas and if so seen, there can be no doubt that the harm that would befall the administration of criminal justice is far greater, if witnesses like "X" and her child cannot be subjected to DNA profiling. The harm that would befall if such a power is not recognised in the trial Court will be far greater, because it will be easier for people to prey upon minor girls from downtrodden communities like predators and force them to turn turtle in the witness box. There is, therefore, an eminent need to subject "X" and her child to DNA profiling in order to arrive at the truth.
58. Mr. Sharath Chandran, learned Amicus Curiae brought to the notice of this Court, a judgment of the Court of Appeal in In re H. (A Minor) (Blood Tests: Parental Rights) reported in 1997 5 Fam 89. The case involved an identical issue where a mother had refused to subject her child to blood test on the ground that it was not conducive to the best interests of the child. Repelling this argument, Ward LJ, held as follows:
"(3) It may well be correct, as Miss Scotland submits, that denial of the truth is essential to this mother for the restoration of her self-esteem and for the expiation of her guilt. That creates a danger in putting her welfare to the forefront, not the child's. The only real chance of setting her mind at rest is that, against all the odds, her husband may indeed be proved to be the father of the child. As Lord Reid observed in S. v. McC. [1972 A.C. 24, 42:
"If one knew or suspected that on the other evidence the child would be held to be illegitimate then it would be in the child's interest to have a blood test because that would afford some chance that the decision would go the other way."
With the improvement in scientific techniques, what was then a chance is now a certainty.
(4) This secret cannot be hidden forever. The husband knows the substantial difficulty of his position. Moreover, and most importantly, 14 year old C, knows, because his mother told him, that his father may not be H.'s father. It is unrealistic to pretend that the time will not come when H. has to face these doubts about his paternity. If his peace of mind is likely to be threatened, and if he has a right to know, the question then becomes one of when it is best he should learn the truth.
(5) In my judgment every child has a right to know the truth unless his welfare clearly justifies the cover up. The right to know is acknowledged in the United Nations Convention on the Rights of the Child (Treaty Series No. 44 of 1992) (Cm.1976) which has been ratified by the United Kingdom and in particular article 7 which provides that a child has "as far as possible, the right to know and be cared for by his or her parents." In In re F. (1993) Fam.314 the putative father submitted that the child's welfare included her right to know under this article. Balcome L.J. said, at p.321:
"Whether or not B, is included in this definition of parent within the meaning of this article, it is not in fact possible for E.to be cared for by both her parents (if B. is such). No family unit exists, or has it ever existed, between B. and Mrs.F., and if B. were able to assert his claims to have a share in E.'s upbringing it would inevitably risk damaging her right to be cared for by her mother, Mrs.F."
That passage concentrates on the child's right to be cared for by his or her parents. I do no read it as refuting what to me seems the clear intent of the article that there are two separate rights, the one to know, and
the other to be cared for by, one's parents. As Balcomb L.J. has himself observed in In re G. (A Minor) (Parental Responsibility) (1994) 2 F.C.R. 1037, 1042:
"it is well established by authority that, other things being equal, it is always to a child's welfare to know and, wherever possible, to have contact with both its parents, including the parent with whom it is not normally resident, if the parents have separated."
(6) This is the whole tenor of the speeches in the House of Lords in S. v. McC. (1972) A.C.24. Lord Reid (with whom Lord Guest agreed) said, at p.45:
"The court must protect the child, but it is not really protecting the child to ban a blood test on some vague and shadowy conjecture that it may turn out to be to its disadvantage, it may equally well turn out to be for its advantage or at least to do it no harm."
Thus, the Court of Appeal has clearly recognised the existence of two independent rights, i.e., the right to know one's parents and the right to be cared for. The very purpose of Article 7 (as discussed above) would be obfuscated if it is held that the best interest of "X's" child would be subserved by suppressing the truth. This is more so in this case, on account of the fact that even the presumption under Section 112 of the Evidence Act is not available as, admittedly, "X" and Manikandan were not married when "X" had conceived.
59. India is a signatory to the United Nations Convention on the Rights of the Child (Treaty Series No. 4 of 1992) (Cm.1976), which has also been ratified. The POCSO Act is an outcome of India signing the U.N. Convention. In consonance with Article 51(c) of the Constitution of India, this Court is required to adopt a view that effectuates, rather than impedes, the obligations under the UN Child Convention.
60. This Court had to necessarily engage in this tortuous exercise, because, a witness has to be visited with penal consequences on his or her failure to comply with the Court's directions to give her blood sample, hair, nail, etc. A recalcitrant witness cannot be allowed to go scot-free. It may be profitable to rely upon the following passage in Selvi v. State of Karnataka (supra):
"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. "
61. The coercive powers of a Court can be traced to Section 349 Cr.P.C.
"349. Imprisonment or committal of person refusing to answer or produce document.- If any witness or person called to produce a document or thing before a Criminal Court refuses to answer such question as are put to him or to produce any document or thing in his possession or power which the Court requires him to produce, and does not, after a reasonable opportunity has been given to him so to do, offer any reasonable excuse for such refusal such Court may, for reasons to be recorded in writing, sentence him to simple imprisonment or by warrant under the hand of the Presiding Magistrate or Judge commit him to the custody of an officer of the Court for any term not exceeding seven days, unless in the meantime, such person consents to be examined and to answer, or to produce the document or thing and in the event of his persisting in his refusal he may be dealt with according to the provisions of section 345 or section 346."
62. This Court has already interpreted the word "thing" appearing in Section 91 Cr.P.C.to mean blood sample, hair, nail, etc. Therefore, on the failure of a witness in a criminal case to give his or her blood sample, nail, hair, etc., he or she will have to face action under Section 349 Cr.P.C and also under the Contempt of Courts Act, 1971 upon the trial Court making a reference to the High Court.
63. In fine, this petition is dismissed.
64. This Court places on record, its appreciation to the learned counsel on record and the learned Additional Public Prosecutor and profound thanks to Mr.Sharath Chandran, learned Amicus Curiae for his extensive research on the issue under enquiry.