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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,
2
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
20
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
23
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.
24
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*