Wednesday, 30 April 2014

Whether Magistrate can send accused for paternity test?


Citing rulings of the SC, judge says a magistrate has powers to send the accused for DNA profiling even if he is on bail or has been granted anticipatory bail by a superior court
Holding that in cases relating to paternity dispute, a Judicial Magistrate was well within powers to send an accused to undergo DNA test, the Madras High Court (Madurai Bench) has said even the police could exert reasonable degree of physical force on the accused to subject him to the said tests.
A Dalit woman had originally filed a complaint alleging that one Dhanasekara Pandian had lured her into a physical relationship on the promise of marriage. Later, when she delivered a male child, Pandian allegedly deserted her.

When the case came up for hearing before the Melur Judicial Magistrate, the Deputy Superintendent of Police filed an application seeking permission to send Pandian and the baby for a DNA test to ascertain their biological relationship.
The accused objected to this following which the Magistrate rejected the plea to conduct a DNA test saying it violates the protection giv-en to a person under Article 20 (3) of the Constitution. Besides, the Magistrate said as per Section 53A of the CrPC a medical examination can be conducted on an accused only when he is arrested and produced before the Magistrate or at any time during his detention period. Otherwise, a Magistrate has no power to pass an order for medical examination.
Aggrieved by this, the woman filed a criminal revision petition in the High Court. When the case was admitted for hearing before Justice P N Prakash, it was submitted that the accused Pandian was not appearing before the Judicial Magistrate and non-bailable warrant was issued against him but his whereabouts were not known.
Passing orders Justice Prakash, citing the Supreme Court ruling in the State of Bombay Vs Kathi Kalu Og-had case, held that the accused is not entitled to protection under Article 20 (3) of the Constitution.
Besides, in the Selvi Vs State of Karnataka case, the Constitution Bench of the SC had held that taking of finger impressions, footprints, ha-ndwriting, signature, blood, semen, saliva etc. from the accused, will not in any way violate the said Article.
“Therefore, a Magistrate has got the power to send the accused for DNA profiling even if he is on bail or has been granted anticipatory bail by the superior court. Just because the police, either on account of oblique motives or due to genuine remiss, had failed to act under Section  53-A, the court cannot throw its hands up and plead helplessness,” he said.
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