Paternity test: DNA sampling is not violative of Article 20 (3), says HC

The Kalaburagi bench of the high court has said that drawing of the blood sample of an accused to determine the paternity of the child is neither self-incrimination nor violative of Article 20 (3) of the Constitution.

The court observed this in a recent judgment while dismissing a petition filed by a person accused of rape challenging the DNA sampling that proved that he was the biological father of the child which was born to the victim.

Justice H P Sandesh cited Supreme Court judgments with regard to DNA test to determine paternity in which it was held DNA test is not to be directed as a matter of routine but only in deserving cases. “Hence, it is clear that ordering for DNA itself should not be as a matter of routine but wherein deserving cases, the court can direct for DNA test and there is no prohibition for ordering DNA test and the same is subject to each facts and circumstances of the case,” Justice H P Sandesh said.

The complaint was filed against the petitioner in 2016 when the victim was seven months pregnant. A requisition was made before the magistrate for the DNA test to which the petitioner filed his objections. His contention was that the victim had already married. The facts of the case were that the victim had given birth to a child, but the child had passed away. However, the extracts of the child were collected and the same was sent to the FSL. During the in-camera examination, the petitioner had also given consent.

The blood was drawn on January 5, 2017, while the report was received in March. Justice H P Sandesh observed that the petitioner had challenged the procedure four years after the report was submitted. The court said the Magistrate has applied the judicious mind and considered Sections 53 and 53A of CrPC and passed an order in compliance with Section 164A of CrPC.

“Hence, I do not find any error committed by the learned Magistrate in ordering for DNA test. The DNA test is also available before the Court, which is marked as Annexure-H, and only in order to overcome the positive report of the DNA, the petitioner has approached this Court by invoking the writ jurisdiction seeking the relief to quash the order as well as the DNA report,” the court said.

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