Case Note & Summary
The petitioner, Malappa @ Malingaraya, filed a writ petition under Articles 226 and 227 of the Constitution of India read with Section 482 Cr.P.C. seeking to quash the orders dated 04.01.2017 and 05.01.2017 passed by the I Additional JMFC, Sindhanur in Crime No.142/2016 (S.C.No.61/2018) directing him to give a blood sample for DNA profiling. The petitioner was accused of offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Sections 376, 506 of IPC. The prosecution sought DNA profiling to compare the petitioner's DNA with the foetus of the victim. The petitioner contended that the order was passed without his consent and without following the procedure under Section 53A Cr.P.C., which requires the consent of the accused for such examination. The court analyzed the provisions of Section 53A Cr.P.C. and the DNA Profiling Act, 2019, and held that DNA profiling without consent is illegal and violative of Article 20(3) of the Constitution. The court quashed the impugned orders and allowed the petition.
Headnote
A) Criminal Procedure - DNA Profiling - Consent - Section 53A Cr.P.C. - The court held that DNA profiling of an accused without his consent and without following the procedure under Section 53A Cr.P.C. is illegal and violative of Article 20(3) of the Constitution. The Magistrate's order directing the petitioner to give blood sample for DNA profiling was quashed. (Paras 10-15)
B) Constitutional Law - Right Against Self-Incrimination - Article 20(3) - The court held that compelling an accused to provide a blood sample for DNA profiling amounts to testimonial compulsion and violates the right against self-incrimination under Article 20(3) of the Constitution. (Paras 12-14)
C) POCSO Act - DNA Profiling - Procedure - The court held that in the absence of any provision under the POCSO Act, 2012 for DNA profiling, the procedure under Section 53A Cr.P.C. must be followed, which requires consent of the accused. (Paras 8-10)
Issue of Consideration
Whether the order passed by the learned Magistrate directing the petitioner to give blood sample for DNA profiling without his consent and without following the procedure under Section 53A Cr.P.C. is sustainable in law?
Final Decision
The writ petition is allowed. The impugned orders dated 04.01.2017 and 05.01.2017 passed by the I Additional JMFC, Sindhanur in Crime No.142/2016 (S.C.No.61/2018) are quashed.
Law Points
- DNA profiling without consent
- Section 53A Cr.P.C.
- Article 20(3) Constitution
- POCSO Act
- 2012
- DNA Profiling Act
- 2019
- right against self-incrimination
- procedural illegality
- quashing of order
Case Details
2021 LawText (KAR) (12) 8
Writ Petition No.201162/2021 (GM-RES)
Sri Mahantesh Patil (for petitioner), Sri Gururaj V. Hasilkar (HCGP for R-1)
The State of Karnataka and Ningamma
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Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution read with Section 482 Cr.P.C. seeking quashing of orders directing DNA profiling.
Remedy Sought
Petitioner sought quashing of orders dated 04.01.2017 and 05.01.2017 passed by the I Additional JMFC, Sindhanur directing him to give blood sample for DNA profiling.
Filing Reason
The petitioner was accused in Crime No.142/2016 for offences under POCSO Act and IPC. The Magistrate passed orders directing DNA profiling without the petitioner's consent and without following procedure under Section 53A Cr.P.C.
Previous Decisions
The I Additional JMFC, Sindhanur passed orders on 04.01.2017 and 05.01.2017 directing the petitioner to give blood sample for DNA profiling.
Issues
Whether the order directing DNA profiling without consent of the accused is sustainable?
Whether the procedure under Section 53A Cr.P.C. was followed?
Whether the order violates Article 20(3) of the Constitution?
Submissions/Arguments
Petitioner argued that the order was passed without his consent and without following Section 53A Cr.P.C., and that DNA profiling without consent violates Article 20(3).
Respondent State argued that DNA profiling is necessary for investigation and that the Magistrate has power to order such examination.
Ratio Decidendi
DNA profiling of an accused without his consent and without following the procedure under Section 53A Cr.P.C. is illegal and violative of Article 20(3) of the Constitution. The Magistrate's order directing such profiling is not sustainable.
Judgment Excerpts
The order passed by the learned Magistrate directing the petitioner to give blood sample for DNA profiling without his consent and without following the procedure under Section 53A Cr.P.C. is illegal and violative of Article 20(3) of the Constitution.
In the absence of any provision under the POCSO Act for DNA profiling, the procedure under Section 53A Cr.P.C. must be followed, which requires consent of the accused.
Procedural History
The petitioner was accused in Crime No.142/2016 registered at Balagnur Police Station for offences under POCSO Act and IPC. The I Additional JMFC, Sindhanur passed orders on 04.01.2017 and 05.01.2017 directing the petitioner to give blood sample for DNA profiling. The petitioner filed the present writ petition on 18.11.2021, which was reserved for orders and pronounced on 10.12.2021.
Acts & Sections
- Code of Criminal Procedure, 1973 (Cr.P.C.): Section 53A, Section 482
- Constitution of India: Article 20(3), Article 226, Article 227
- Protection of Children from Sexual Offences Act, 2012 (POCSO Act):
- DNA Profiling Act, 2019:
- Indian Penal Code, 1860 (IPC): Section 376, Section 506
