Code of Criminal Procedure

UNIVERSITY OF PETROLEUM AND ENERGY STUDIES

College of legal Studies CODE OF CRIMINAL PROCEDURE ASSIGNMEN CASE ANAL!SIS

"is#al Motosing "asa$a "s% State of Gu&arat 't# (anuar) *++,

SU-MI SU-MI

ED O. ED -!. Name-

Dr. Ramesh Kumar Kumar Sagar

Code of Criminal Procedure

Assistant Professor SEM) C LS! "PES 6%

BBA LLB (6th Ro## No. $

Case:
Vishal Motising Vasava vs State Of Gujarat on 8 January, 2004

Case Citaition:
2004 CriLJ 308 !

Facts:

The short facts of the case appear to be that earlier DNA test of the petitioner was undertaken and it has been stated that the DNA test was found to be in negative. When the evidence is recorded, it is the case of the original complainant that she came to know at a later point of time that the DNA test is already undertaken of the petitioner accused and therefore she moved an application- !h."# before the learned trial $udge for conducting second DNA test of the petitioner and the child, namely, %iyush, who is aged two years old at the time of application. The original complainant in the said application also insisted that she wants to have DNA test at the laboratory situated at &yderabad only and the learned 'essions (udge ultimately after hearing both the sides allowed the application of the original complainant being !h."# and directed for the second DNA test to be conducted. )nitially, the petitioner has preferred *isc.+r.A No.,-,#./-0 for 1uashing of the said order and since it has been apprehended by the petitioner that the petitioner who is otherwise in $udicial custody will be handed over to the complainant and the parents of the complainant for conducting the said DNA test at &yderabad has preferred
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Code of Criminal Procedure

+r.*.A.No..2/-# for interim stay against the said order, dated 34.,,.3--0 passed by the learned 'essions (udge. *r.5alathil, after some arguments, fairly submitted that as per 'cience, even if the second DNA test is conducted, merely because the period of two years has e!pired the result of test is not likely to be changed and therefore the petitioner has no ob$ection if the second DNA test is conducted, but the main ob$ection of the petitioner at this stage is that if the petitioner is compelled to travel upto &yderabad with the complainant and the parents of the complainant without the presence of the advocate for the petitioner the safety of the petitioner may be in $eopardy and therefore *r.5alathil submitted that if this court while considering the matter for e!amining the legality and validity of the order of the learned sessions $udge modifies the order to the e!tent that the said DNA test may be conducted at any hospital in 6u$arat 'tate, the petitioner would have no ob$ection to said test being conducted reserving liberty to raise all the contentions available under law before the learned 'essions (udge on the 1uestion of acceptance of DNA test or otherwise at the time of final conclusion of the trial.

Issue Raised :

Petitioner apprehends that based on the aforesaid order passed (application-Exh.94 dated 24.11.2003) the petitioner will be compelled to tra el to !"derabad with the ori#inal complainant and the parents of the complainant and the petitioner f$rther apprehends that the safet" of the petitioner will be in %eopard" if the petitioner is compelled to #o to !"derabad for cond$ctin# of &'( test which is at !"derabad.

Contentions :

The 7d.Addl.%% *r.5og$e submitted, inter alia, that if second DNA test is ordered by this court in any place in 6u$arat, the 'tate will make appropriate arrangement for keeping the petitioner present for such test since he is in $udicial custody. &aving considered the above and the order, dated 34.,,.3--0 passed by the learned 'essions $udge, it appears that the order passed by the learned sessions for allowing second DNA test to be conducted of the petitioner can not be said without $urisdiction or
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Code of Criminal Procedure

illegal which would cause any great in$ustice to the party. As such, the order can be said to be discretionary order which would not call for interference by this court. ) find it proper not to observe further and leave it at that stage, more particularly, in view of the fair stand taken by the learned advocate for the petitioner that the petitioner has also no ob$ection for second DNA test to be conducted at any hospital in 6u$arat 'tate. 'o far as the insistence of the original complainant for getting the DNA test to be conducted at &yderabad only and not at any other place and acceptance of such re1uest by the learned sessions $udge in the impugned order, deserves interference. The complainant may be $ustified at the most in insistence for second DNA test to be conducted. &owever, such insistence can not be stretched to the e!tent of getting the test conducted at a particular laboratory of the choice of the complainant. )f such contentions at the instance of the complainant are accepted, it may leave room to large number of other manipulations and complications. )t will be for the 'tate to modulate and regulate such procedure to be undertaken since it will be the duty of the 'tate to ensure that the criminal $ustice is properly administered in the 'tate. The 'tate for various reasons may decide to get such test to be conducted at the nearest laboratory or in an appropriate case the court may direct the 'tate to get such test conducted at a particular laboratory, but certainly the complainant can not be said to have any vested right to get such test conducted at a particular laboratory only. 8urther, no e!traordinary circumstances are recorded by the learned sessions $udge for accepting the contention of the original complainant to get DNA test conducted at &yderabad only. )t has not come on record that the laboratories for conducting DNA test situated in 6u$arat are either not useful or the report may create a doubtful situation. )n absence of such material on record, in my view, the learned sessions $udge has committed error in accepting the contention of the original complainant that the DNA test shall and must be conducted at a laboratory situated at &yderabad only.

Judgement:
)n view of the aforesaid discussion, the order dated 34.,,.3--0 passed by the learned sessions $udge below application- !h."# in 'essions +ase No.02/-3 shall operate to the e!tent of ordering the second DNA test of the petitioner by comparing the blood of the child-%iyush. &owever, the order shall stand modified to the e!tent that such DNA test shall be conducted at any laboratory situated in 6u$arat 'tate. )t will be for the learned sessions $udge to decide after hearing both sides for the place of the laboratory anywhere in 6u$arat. As and when such test will be conducted for the purpose of blood sample or otherwise, the 'tate shall make arrangements for ensuring that the petitioner is kept present personally for such purpose and the petitioner shall be at liberty to keep his
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Code of Criminal Procedure

advocate present at the time when blood samples are to be collected. The original complainant shall also be at liberty to remain present either with her parents or advocate of her choice. +r.*.A.No.,-,#./-0 is allowed to the aforesaid e!tent only. 9ule is made absolute accordingly. )n view of the order in +r.*.A.N.,-,#./-0 no order is re1uired to be passed in +r.*.A.No..2/-#. +r.*.A.No..2/-# stands disposed of accordingly. *r. 5alathis, ld.advocate for the petitioner shall be at liberty to communicate this order to the learned sessions $udge since the matter is kept tomorrow :".,.3--#;.

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