# Jijo C. George v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 810
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-01
- **Case number:** Application U/S 482. No. 35719 of 2022
- **Bench:** Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jijo-c-george-v-state-of-u-p-ors-49227
- **Pages:** 10

## Headnote

Criminal Law- Code of Criminal Procedure,
1973-Sections 157,173 & 482 Constitution
of India, 1950-Article 21, 227-Applicant
blackmailed
the
prosecutrix
and
committed rape upon her due to which
she became pregnant which resulted in
4 All. Jijo C. George Vs. State of U.P. & Ors.
811
birth of the second child of the victim-
F.I.R. lodged by the victim u/s 376, 328,
323, 504 and 506 IPC-Applicant directed
to undergo DNA test during investigation -
Alleged commission of the rape upon the
victim is, in fact, in issue and point of birth
of the second child is subsidiary reference
due to the commission of rape which (act)
is imputed to the applicant-Inherent
powers
u/s
482
Cr.P.C.
cannot
be
exercised at this stage of investigation-In
order to ensure justice application under
Section
482
Cr.P.C.
though
not
maintainable at this stage is taken to be a
petition
under
Article
227
of
the
Constitution
of
India-Once
the
investigation commenced u/s 157 Cr.P.C.,
it should reach to its logical conclusion as
provided u/s 173 Cr.P.C-Applicant being
an accused of the offence of rape can be
directed for DNA testing for collecting
material during investigation-DNA testing
would not be treated to be in violation of
the right to privacy. (Para 26 to 40)

Petition dismissed. (E-15)

List of Cases cited:

## Text

810 INDIAN LAW REPORTS ALLAHABAD SERIES
concluded that on the basis of statement,
inspection and other collected material, no
commission of offence by the accused
persons have been proved and therefore,
accepted the final report. The order of
Additional Chief Judicial Magistrate-I was
challenged through Criminal Revision
No.41 of 2021 in which proper opportunity
of hearing was provided to the applicant.
The learned Revisional Judge found that
the informant had appropriately been
served through notices on 01.11.2019 and
11.08.2021 and her signatures were found
thereon. It has also been noticed that on
04.10.2019, the final report had been
submitted in the Court and thereafter
notices were issued to her when there was
no
COVID-19
pandemic,
hence
the
revision was dismissed.

7. Being aggrieved, the informant has
filed this application under Section 482
CrPC.

8. According to this Court, if the
applicant was of the view that her forged
and fictitious signature had been obtained
by the police, an occasion was available to
her to get the expert opinion that the
signatures present on the notices were not
put by her but this remedy has not been
availed by her.

9. Since the proper opportunity had
been provided to the applicant and the
notices were also served before accepting
the final report, hence the case of K.P.
Ramasamy
and
others
Vs.
R.
Dharmalingam and others, decided on
24.01.2020 by the Apex Court could not be
applied in favour of the applicant.

10. In Gangadhar Janardan Mhatre
Vs. State of Maharastra, 2004 CrLJ
4632, it has been held that when on
submission of police report under Section
173(2) Cr.P.C., the Magistrate decides to
accept it and not to take cognizance and to
drop the proceeding against the all or some
of the accused, the informant is entitled to a
notice and opportunity to be heard at the
time of consideration of such final report.
In this case before accepting the final
report, the Magistrate had served notice
upon the applicant which was not availed
by her.

11. In view of the above, the present
application lacks merit and is liable to be
dismissed.

12. This application under Section
482 CrPC is accordingly dismissed.
----------
(2023) 4 ILRA 810
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2022

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Application U/S 482. No. 35719 of 2022

Jijo C. George ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Arun Kumar Tripathi, Sri V.P, Srivastava
(Sr. Adv.)

Counsel for the Opposite Parties:
G.A., Sri Amit Tiwari, Sri Shakti Shanker
Tiwari, Sri Subash Chandra Tiwari

Criminal Law- Code of Criminal Procedure,
1973-Sections 157,173 & 482 Constitution
of India, 1950-Article 21, 227-Applicant
blackmailed
the
prosecutrix
and
committed rape upon her due to which
she became pregnant which resulted in
4 All. Jijo C. George Vs. State of U.P. & Ors.
811
birth of the second child of the victim-
F.I.R. lodged by the victim u/s 376, 328,
323, 504 and 506 IPC-Applicant directed
to undergo DNA test during investigation -
Alleged commission of the rape upon the
victim is, in fact, in issue and point of birth
of the second child is subsidiary reference
due to the commission of rape which (act)
is imputed to the applicant-Inherent
powers
u/s
482
Cr.P.C.
cannot
be
exercised at this stage of investigation-In
order to ensure justice application under
Section
482
Cr.P.C.
though
not
maintainable at this stage is taken to be a
petition
under
Article
227
of
the
Constitution
of
India-Once
the
investigation commenced u/s 157 Cr.P.C.,
it should reach to its logical conclusion as
provided u/s 173 Cr.P.C-Applicant being
an accused of the offence of rape can be
directed for DNA testing for collecting
material during investigation-DNA testing
would not be treated to be in violation of
the right to privacy. (Para 26 to 40)

Petition dismissed. (E-15)

List of Cases cited:

1. King- Emperor Vs Khwaja Nazir Ahmad, 1944
0 ICLF (SC) 30, 1945 0 AIR (PC)18; 1943 71
Law Report Ind. App. 203

2. Goutam Kundu Vs St. of W. B. 1993 O ICLF
(SC) 539

3. Zandu Pharmacutical Works Ltd. & ors. Vs
Mohd. Sharaful Haque & anr. (2005) 1 SCC 122

4. Ram Lal Yadav Vs St. of U.P. 1989 Crl.LJ.
1013

5. Rohit Shekhar Vs Narayan Dutt Tiwari on 27
April, 2012 FAO (OS) No.547 of 2011, AIR 2012
Delhi 151

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J.)

(1) Heard Sri V.P. Srivastava, learned
Senior Counsel assisted by Sri Arun Kumar
Tripathi, learned counsel for the applicant,
Sri Subhash Chandra Tiwari, learned
counsel for the respondent no.4, learned
A.G.A. for the State and perused the
material available on record.

(2) This application under Section
482 Cr.P.C. has been filed to quash the
effect and operation of the impugned order
dated 18.10.2022 passed by Additional
Chief Judicial Magistrate- IX, Allahabad,
in Case - State vs. Jijo C. George arising
out of the First Information Report
registered at Case Crime No.0070 of 2022,
under Sections 376, 328, 323, 504 and 506
IPC, Police Station- Mutthiganj, District-
Praygraj and the operation and effect of the
order impugned dated 21.10.2022 passed
by Sessions Judge / Special Judge (SC/ST
Act), Allahabad, in C.N.R. No. UPAD01013127-2022, whereby he allowed the
application of the Investigating Officer
cocnerned to proceed with blood test /
DNA
test
of
the
applicant
during
investigation.

(3) The applicant- Jijo C. George-
feeling
aggrieved
by
the
aforesaid
direction/order of the Magistrate has
approaced this Court invoking inherent
powers of this Court in this matter wherein
investigation is in progress and the
applicant has been directed for undergoing
DNA test.

(4) In this case, a peep into facts of
the case proceeds on line that an F.I.R. was
lodged by the victim (opposite party no.2)
that on 21.05.2022 referring to some
incident
that
allegedly
occurred
on
05.12.2019 and onwards. The description
in the first information report proceeds on
to claim that the informant/prosecutrix was
engaged in teaching profession at Ewing
Christian College, Prayagraj. She was in
812 INDIAN LAW REPORTS ALLAHABAD SERIES
contact with the present applicant- Jijo C.
George and (also in teaching profession in
ECC), he taking advantage of the situation
invited her to a tea party at 11:00 a.m. on
05.12.2019 at his campus residence in the
Ewing Christian College, where both the
applicant and the respondent no.4 were
working as Assistant Professors. It is a case
of the prosecutrix that she went to the
applicant's house and took tea but she felt
giddy and became unconscious on account
of some noxious substance mixed in the tea
and administered upon her. When she
became unconscious, the applicant forcibly
committed rape upon her. Upon regaining
consciousness, she found herself in critical
position on bed and realized that her
modesty was outraged, while she asked the
applicant as to why he deceitfully invited
her, he threatened and said to her that he
has made a video clip of the incident and
would inform about it to her husband and
viral it in case any protest is raised. Due to
which the prosecutrix became apprehensive
and the applicant continued to blackmail
her and continued to commit rape upon her
at different places due to which she became
pregnant.

(5) As the F.I.R. proceeds further it
divulges various details of subsequent
events that led to the lodging of this first
information report.

(6) Background of the case may be
looked into for proper appreciation of the
case wherein offence of rape is allegedly
committed by the applicant. In this case,
the informant is 37 years of age, is
presently posted as Assistant Professor in
the department of English in Ewing
Christian College, Prayagraj (hereinafter
referred to as ECC), whereas the applicant
presently 32 years of age, was stated to be
28 years of age at the time of the incident
(05.12.2019), was also posted as Assistant
Professor in the same department of ECC,
Prayagraj. it is claimed that no medical
examination
of
the
prosecutrix
was
conducted in this case. It is case of the
prosecutrix (opposite party no.4) that she
was married to one Atul Stenali Harmit at
Prayagraj according to the Christian Rites
and Rituals. She is mother of the two
children namely Anya Samara Harmit,
aged about 5 years and Jeremi Allen
Hermit, aged about 1- 1/2 years old.

(7) The applicant belongs to Kerala and
he came over to Prayagraj for the first time in
the year 2012 when he was appointed as
Assistant Professor in ECC, Prayagraj where
the opposite party no.4 was also posted as
Assistant Professor. The opposite party no.4
was senior to the applicant in the department
of English. After some time, both became
acquainted with each other. The details of the
incident proceed further with the theme that
the opposite party no.4 had lodged the first
information report against her husband (Atul
Stenali Harmit) and mother-in-law with
allegations at Case Crime No.0068 of 2021
under Sections 498A, 323, 504, 506, 355, 452
I.P.C., Police Station Mahila Thana, District
Prayagraj, on 11.11.2021. The investigation
ensued and charge sheet was filed by the
police in the aforesaid case.

(8) Both opposite party no.4 and her
husband sought mutual divorce. Before
filing of the divorce petition, the opposite
party no.4 and her husband Atul Stenali
Harmit entered into compromise and signed
the contents of the affidavit qua the terms
and conditions on which they wanted to be
separated from each other.

(9) After filing of the charge sheet (in
aforesaid case pertaining to Crime No.0068
of 2021), the opposite party no.4 and her
4 All. Jijo C. George Vs. State of U.P. & Ors.
813
husband Atul Stenali Harmit moved
matrimonial petition no.118 of 2022 under
Section 10 A of the Indian Divorce Act,
1869, seeking divorce on mutual consent.
An affidavit was filed as paper no.9A in
which they have stated for the first time
that the second child namely 'Jeremi Allen'
is son of the applicant. It is urged by the
applicant that in the divorce petition itself
they have not attributed anything about the
parentage of aforesaid child being son of
the applicant and a contraditory affidavit
has been filed by the opposite party no.4
and her husband before the family court
concerned.

(10) It has been claimed in the
application that the husband of the opposite
party no.4 had filed an application under
Section 482 Cr.P.Cr. No.15985 of 2022 to
quash the first information report bearing
no.0068 of 2021 giving rise to the proceeding
as the case no.40 of 2022 State Vs. Atul
Stenali Harmit and others wherein the parties
were directed by the High Court for filing
compromise deed before the lower court.
However, it is claimed that the matter is
pending and the charge sheet has not been
quashed by the High Court, as yet. The
divorce petition (between the opposite party
no.4 and her husband) has been decreed on
25.07.2022. In the intant case in hand (case
crime no.0070 of 2022), the applicant has
been arrested and bailed out. Relevant to
mention as the petition proceeds on to add
certain details as to how the situation flared
up while the investigation is in progress in
this case in hand. In the meanwhile, the
opposite party no.4 moved an application
before
the
Additional
Chief
Judicial
Magistrate, Court No.9, Prayagraj, regarding
conduction of DNA testing of the minor child
and the applicant, which was rejected on
14.07.2022 on the ground that the opposite
party no.4 had no locus to move the
application and in case the Investigating
Officer finds it proper, he can move
appropriate application. It was observed,
inter-alia, that there is no issue/dispute
regarding determination of paternity of the
child, however substantial evidence may be
collected in regard to alleged offence of rape.

(11) Subsequently, an application was
moved by the opposite party no.4 before the
Senior Superintendent of Police, Prayagraj
along with the affidavit regarding DNA
testing of the minor child and the applicant.
Now it so happened that the Investigating
Officer moved an application on 11.10.2022
before
the
Additional
Chief
Judicial
Magistrate, Court No.9, Allahabad for
conduction of DNA testing of the minor child
and the applicant.

(12) In the wake of the aforesaid
background
and
averments
in
the
application/petition, claim of the applicant is
that he has not given his consent for the
conduction of blood / DNA testing. However,
the Additional Chief Judicial Magistrate, Court
No.9, Allahabad has ordered on 18.10.2022 for
conduction of DNA testing in accordance with
law. The petition proceeds on to claim that the
order of the Magistrate dated 18.10.2022 in
allowing DNA testing is basically in violation
of the right to privacy of the applicant. Feeling
aggrieved by the aforesaid order dated
18.10.2022, the applicant preferred a criminal
revision bearing CNR No. UPADO1 - 013127
of 2022 before the Incharge Sessions Judge /
Special Judge (SC/ST Act), Allahabad but the
criminal revision was dismissed on 21.10.2022
holding that the order dated 18.10.2022 passed
by the Magistrate is interlocutory order as such
revision is not maintainable.

(13) The petition continues to proceed
on the same line and asserts that
fundamental right of the applicant is being
814 INDIAN LAW REPORTS ALLAHABAD SERIES
violated inasmuch as the right of privacy
being integral part of the personal liberty
enshrined in Article 21 of the Constitution
of India is being violated, whereas, in a
catena of cases the Hon'ble Apex Court has
categorically held that the right to privacy
being integral part of right to liberty cannot
be violated and this mandate is applicable
to all cases including the one where the
investigation is going on and the charge
sheet has not been filed. Consequently, the
order dated 18.10.2022 passed by the
Additional Chief Judicial Magistrate, Court
No.9, Allahabad, directing the DNA testing
/ blood test of the minor child and the
applicant, as affirmed by the revisional
court on 21.10.2022 are not sustainable in
the eye of law. Both the orders have been
impunged by way of this application.

(14) At the very outset, relevant to
mention that preliminary objection has
been raised by the counsel for informant
(opposite party no.4) questioning the
maintainability of this application to the
ambit that this application under Section
482 Cr.P.C. is not maintainable as the
investigation of this case is underway
wherein apart from other Sections of I.P.C.,
offence under Section 376 I.P.C. is also
involved
and
during
course
of
the
investigation, this Court has no powers to
exercise jurisdiction so as to interfere with
the investigation under Section 482 Cr.P.C.
at this juncture.

(15) I n reply to the preliminary
objection, learned counsel for the applicant
has claimed that insofar as exercise of
jurisdiction under Section 482 Cr.P.C. is
concerned, the law is specific that in cases
of urgency and in order to secure ends of
justice, the inherent powers can be
exercised by this Court so as to do
complete justice.

(16) In support of his claim, learned
counsel for the applicant has placed
reliance on the decision of the Privy
Council King- Emperor Vs. Khwaja
Nazir Ahmad, 1944 0 ICLF (SC) 30,
1945 0 AIR (PC)18; 1943 71 Law Report
Ind. App. 203 and stressed on the last three
paragraphs of the judgment by submitting
that the Privy Council has expressed view
that inherent jurisdiction can be exercised
to secure the ends of justice.

(17) At this stage, learned counsel for
the opposite party no.4 interrupted and
submitted that the view expressed by the
Privy Council itself was to the purport and
meaning that in normal course, "functions
of the Courts begin when charge is
preferred". It means only after charge sheet
is preferred only then Court's interference
is justified.

(18) Learned counsel for the applicant
has continued with his reply and claimed
that the functions of the judiciary and the
police
are
supplementary
and
not
overlapping. Both are required to act in its
respective sphere. Learned counsel again
placed reliance on some parts of the
aforesaid citation.

(19) Apart from that, on the point of
maintainability for exercise of inherent
jurisdiction of this Court in relation to this
application under Section 482 Cr.P.C.,
learned counsel for the applicant has placed
reliance on the decision of the Hon'ble
Apex Court in the case of Goutam Kundu
vs. State of West Bengal 1993 O ICLF
(SC)
539
wherein
under
facts
and
cirucmstances of the case, the matter was
contested between the husband and the
wife wherein fact of the paternity of the
child was in issue and the Hon'ble Apex
Court held that there were other methods to
4 All. Jijo C. George Vs. State of U.P. & Ors.
815
disapprove paternity and medical test
cannot be conclusive of the paternity.

(20) Lastly, learned counsel for the
applicant has placed reliance on the
decision of the Hon'ble Apex Court in the
case of Zandu Pharmacutical Works
Ltd. and others Vs. Mohd. Sharaful
Haque and another (2005) 1 SCC 122
wherein Hon'ble Apex Court held, interalia, that no hard and fast rule can be laid
down for exercise of the jurisdiction under
Section 482 Cr.P.C.

(21) On the basis of above decision of
the Privy Council and the Hon'ble Apex
Court, contention is that there is no bar to
the exercise of power vested in this Court
by virtue of Section 482 Cr.P.C. during
investigation. Learned counsel for the
applicant proceeds on to assert that exercise
of powers under Section 482 Cr.P.C. is
meant to be exericsed for doing complete
justice and securing ends of justice and the
other ingredients described in this Section
(482 Cr.P.C.) and power to do complete
justice is vested in the Court exercising
powers
under
Section
482
Cr.P.C.
Therefore, DNA testing as directed by the
Additional Chief Judicial Magistrate, Court
No.9, Allahabad, cannot be done in the
absence of consent of the applicant.
Learned counsel claimed that it is a fit case
for interference for securing the ends of
justice and to protect right of privacy of the
applicant.
Therefore,
the
inherent
jurisdiction may be exercised by this Court
under Section 482 Cr.P.C. even during
continuance of the investigation.

(22) While retorting to the aforesaid
arguments, learned counsel for the opposite
party no.4 has persuaded to the substance
of point of issue involved in the case of
King Emperor by clarifying that insofar as
point of exercise of jurisdiction under
Section 482 Cr.P.C. is concerned, in the of
case King Emperor (supra), the Privy
Council was itself of the view and laid
parameters as to when inherent powers can
be exercised in matters of investigation and
in abscence of these parameters, learned
counsel proceeds on to state that exercise of
jurisdiction under Section 482 Cr.P.C.
cannot be done in the way sought by the
applicant at this juncture. Further insofar as
the right to privacy of the applicant is
concerned, no doubt it is, inalienable, and
integral
part
of
Article
21
of
the
Constitution of India, but that does not give
absolute liberty to a person, but the liberty
can be curtailed by just and fair procedure
by following the procedure established by
law in this regard. In this case, nothing of
the sort is involved as has been claimed by
the applicant. The liberty is subject to
reasonable restrictions.

(23) In support of his claim, learned
counsel for the opposite party no.4 has
placed reliance on the Full Bench (seven
Judges) of this High Court in the case of
Ram Lal Yadav Vs. State of U.P. 1989
Crl.LJ. 1013 has claimed that the Full
Bench has settled the law on the point of
interference being caused by excercise of
powers under Section 482 Cr.P.C. during
investigation of a case - as not permissible.
The Full Bench has concluded that the
High Court has no inherent powers under
Section 482 Cr.P.C. to interfere with the
investigation that is being done by the
police. The High Court has no inherent
power to stay arrest of the accused during
the investigation.

(24) Apart from that, learned counsel
for the opposite party no.4 has persuaded to
the point that it is only in those particular
cases
where
arbitrariness
results
in
816 INDIAN LAW REPORTS ALLAHABAD SERIES
violation of privacy only then there would
arise ground for interference in order to
ensure protection of the fundamental rights
of a person/citizen in appropriate cases. But
in cases where procedure prescribed by law
is just, fair and reasonable and after
following it right to privacy is restricted
and restraint is applied on a person then
there is no violation of right of privacy of a
person.

(25) In this regard, learned counsel
for the opposite party no.4 has also placed
reliance on the decision of the Delhi High
Court in the case of Rohit Shekhar vs.
Narayan Dutt Tiwari on 27 April, 2012
FAO (OS) No.547 of 2011, AIR 2012
Delhi 151 wherein also under prevailing
facts and circumstances of the case, Delhi
High Court had directed for blood / DNA
testing of Narayan Dutt Tiwari.

Discussion and Conclusion

(26) No doubt, insofar as the
submission raised regarding maintainability
of
this
application
for
exercise
of
jurisdiction under Section 482 Cr.P.C.
during course of investigation is concerned,
it can be observed that as per dictum of
aforecited case of King- Emperor Vs.
Khwaja Nazir Ahmad, 1944 0 ICLF (SC)
30, 1945 0 AIR (PC)18; 1943 71 Law
Report
Ind.
App.
203,
inherent
jurisdiction can be exercised in rarest of
rare
and
exceptional
cases
and
circumstances which may of its own justify
such exercise; but insofar as this rare and
exceptional apsect is concerned, the Privy
Council was of the view that in case bare
perusal of the report does not make out
commission of any offence or cognizable
offence then the investigation pertaining to
that first information report may be
interfered with. The Privy Council did not
mandate in a way that in all cases, inherent
jurisdiction can be exercised, while the case
is one at the investigation level, the Privy
Council categorically held that the "domain
of the Court begins when charge is
preferred".

(27) The point in issue that arises for
determination pertains to fact whether
inherent jurisdiction of this Court (under
Section 482 Cr.P.C.), can be invoked
during investigation of a case. Can it be
said that no offence is made out from
perusal of the report? Can it be said that no
cognizable offence is made out from
perusal of the report?

(28) Now this Court would have to
consider the very language and import of
allegations
contained
in
the
first
information report and to contemplate on
the
point
whether
bare
description
contained in the first information report
makes out, inter-alia, alleged offence of
rape and commission of cognizable offence
or not?

(29) In that regard, as this Court
proceeds with the description contained in
the FIR it is reflected that the allegations
are expressive of solitary view that "taking
advantage of the opposite party no.4 on
05.12.2019",
the
applicant
allegedly
"invited" the opposite party no.4 "at his
residence in ECC campus served tea and
admixed some noxious substance in tea due
to
which
she
became
unconcious".
Consequently, rape was committed upon
her. When she regained her consciousness,
she asked the applicant as to why he
deceived her when he threatened her and
told that he has made a video clip of the
incident and he would viral it to the public
at large and "inform about it to her
husband". Thus, he allegedly kept her
4 All. Jijo C. George Vs. State of U.P. & Ors.
817
under constant fear, blackmailed her and
taking advantage of this situation, the
applicant continued to commit rape upon
her as a result of which she conceived and
developed pregnancy which resulted in
birth of the second child (Jeremi Allen
Harmit born to her). The alleged rape and
birth of the child thus becomes point in
issue directly involved in this case. Here
point of peternity of the child is neither in
issue nor is it raised as such. But the
allegations of rape, if unrebutted, would be
penal. At this stage, all evidence that sheds
light on the alleged commission of rape
become relevant in issue.

(30) It is no denying fact that under
facts and circumstances of the case in hand,
allegations
prima-facie
make
out
a
cognizable offence. It can be said that the
allegations made in the first information
report, inter-alia, make out commission of a
cognizable
offence.
Simlicitor
alleged
commission of the rape upon the opposite
party no.4 is, in fact, in issue and point of
birth of the second child to the opposite
party no.4 is subsidiary reference due to the
commission of rape which (act) is imputed
to the applicant. That being the case, the
investigation on these aspects may go on
uninterruptedly. Therefore, inherent powers
under Section 482 Cr.P.C. cannot be
exercised at this stage of investigation and
the case cannot be said to be falling within
circumference - rare and exceptional.

(31) Similarly, insofar as point of
violation of the right to privacy and
fundamental right of the applicant is
concerned, it can be observed that the right
to privacy is not an absolute right but
subject to reasonable and fair restriction. In
the decision of the Delhi High Court in the
case of Rohit Shekhar (supra) wherein the
Delhi High Court dealt with the entire
matter and DNA testing was forced upon
Narayan Dutt Tiwari. In this case in hand,
the determination of factum of rape is to be
done for which material / evidence is being
collected by the Investigating Officer. The
process of collection of material during
investigation in that regard may go on
uninterruptedly. It would not be convenient
to express any opinion about the merit or
demerit of the material sought to be
collected by the Investigating Officer at
this juncture. It is exclusive prerogative of
the Investigating Officer to carry out
investigation
in
all
fairness
and
transparency, as such no interference in
investigation is warranted in exercise of
inherent jurisdiction as vested in this Court
by virtue of Section 482 Cr.P.C.

(32) Insofar as the point of
impingement of fundamental right and
personal liberty as enshrined under Article
21 of the Constitution of India, of the
applicant is concerned, it cannot be said to
have been violated by the order dated
18.10.2022 passed by the Additional Chief
Judicial Magistrate, Court No.9, Allahabad,
for specific reason that collection of
evidence / material relevant during course
of investigation is going on which is a
procedure to be adopted while investigating
a case by virtue of provisions contained
under Section 157 of
the
Criminal
Procedure Code. This mandate cannot be
termed to be unfair, unreasonable and
unjust, conversely it is just and fair. It is
noticeable that the learned Magistrate has
passed order in his supervisory capacity
enabling the Investigating Officer to collect
material and evidence having nexus with
the offence alleged. At the cost of
repetition, it can be observed that this Court
should refrain from observing anything, on
the quality of the evidence sought to be
collected during investigation, and its on
818 INDIAN LAW REPORTS ALLAHABAD SERIES
merits. It being so, the applicant cannot
insist
on
for
exercise
of
inherent
jurisdiction of this Court.

(33) In normal circumstances, this
Court would have directed the applicant to
approach the appropriate Court exercising
jurisdiction either under Article 226 or 227
of the Constitution of India, for redressal of
his grievances. But in order to ensure
justice on merit of the case, this application
under Section 482 Cr.P.C. though not
maintainable at this stage in its present
form (under Section 482 Cr.P.C.) calling
for
interference
in
the
ongoing
investigation of this case is taken to be a
petition
under
Article
227
of
the
Constitution of India. But considering the
case from that angle as has been brought by
way of this application / petition before this
Court wherein both the sides have stuck to
their guns by their respective pleadings
which they have exchanged, inter-se,
obviously it can be observed with utmost
caution that the case in hand is not the one
falling in the category of rarest of rare
cases and exceptional circumstance which
alone would justify indulgence of this
Court in the ongoing investigation at this
stage, as the law in this regard is well
settled that there shall be no interference
with the investigation of an offence by the
Courts. The allegations in the report make
out a cognizable offence on the face, to be
specific - offence of rape - as such.

(34) It is exclusive domain of the
Investigating Officer to collect all the
relevant material and evidence which are
reflective and have direct or indirect nexus
to
the
offence
alleged.
Once
the
investigation commenced under Section
157 Cr.P.C., it should reach to its logical
conclusion as provided under Section 173
Cr.P.C. If some vital and important
material / evidence is available then it is
required to be collected and every effort
should be made to bring it on record so as
to ensure logical end of the legal process.

(35) Insofar as the order dated
18.10.2022 passed by the Additional Chief
Judicial Magistrate, Court No.9, Allahabad,
directing for DNA testing is concerned, the
same cannot be ignored merely on the
ground that the applicant has not consented
for it. The applicant being an accused of the
offence of rape, he can be directed for
DNA testing for collecting material during
investigation. Thus DNA testing would not
be treated to be in violation of the right to
privacy as such it cannot be said to be
either arbitrary or unreasonable. In the case
of Rohit Shekhar (supra), Narayan Dutt
Tiwari was forced to undergo DNA testing
despite his stiff resistance to the order of
DNA testing.

(36) In such cases like the present one
where fact in issue primarily and solely is
aligned to the alleged commission of rape
upon the opposite party no.4 by the
applicant, truth can be divulged by
conduction of DNA testing of the applicant.
Under
the
prevailing
facts
and
cirucmstances of this case, DNA testing
cannot be halted merely on the ground that
the person, whose DNA testing is required
to be done has not consented to such
testing. Similarly the lower revisional court
was justified when it refused (vide order
dated 21.10.2022) to interfere with the
aforesaid order dated 18.10.2022 passed by
Additional Chief Judicial Magistrate- IX,
Allahabad, on the ground of it being
interlocutory order. No infirmity is thus
discovered in the order impugned passed
by the lower revisional court. Moreover
this Court has heard, in extenso, the
applicant on the point of relief sought by
4 All. Kanwarpal @ Lala & Ors. Vs. State of U.P. & Anr.
819
way of challenge made to the order of
DNA testing and considered the matter in
entirety, therefore, no grievance in regard
to rejection of criminal revisional by the
lower revisional court on technical ground
exist.

(37) Insofar as the guidelines in the
case of Goutam Kundu (supra) is
concerned, in that case question of
paternity was primarily fact in issue to be
adjudicated upon between the wife and the
husband where birth of the child was
disowned by the husband, whereas, in this
case, the point of determination of paternity
of the child has got no relevance nor
claimed. Therefore, the petition though
taken to be one under Article 227 of the
Constitution of India also lacks merit and
deserves dismissal.

(38) For the reasons aforesaid, this
Court is of the considered view that at this
stage, when the investigation is going on
attention of the Investigating Officer would
be on the allegations made in the first
inforamtion report which aspect, per se, is
based upon alleged commission of the
offence of rape upon the opposite party
no.4 by the applicant and consequent
development of pregnancy and birth of a
child. The Investigating Officer is free to
collect material relevant by following due
procedure of law. At the investigation
stage, no interference is warranted by this
Court and the investigation may go on
uninterruptedly.

(39) Consequently, this petition is
dismissed.

(40) It is made clear that nothing
has been expressed on the merit of the
case and authenticity of the material
sought
to
be
collected
by
the
Investigating Officer during course of the
investigation and the investigating agency
shall not be prejudiced by the observation
made hereinabove and the same is
confined solely to the disposal of this
petition and would in no case travel
beyond it.

(41) Cost easy.
----------
(2023) 4 ILRA 819
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.04.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482. No. 38783 of 2022

Kanwarpal @ Lala & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Mayank Yadav, Sri Vivek Kumar Singh

Counsel for the Opposite Parties:
G.A., Sri Anil Kumar Dubey, Sri Chandra
Bhan Dubey

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power ,Section 200 - Examination of
complainant , Section 202 - Postponement
of issue of process , Section 203 -
Dismissal of complaint, Section 156(3) -
direction for further investigation , Section
173 (2) - police report , Section 190(1)(b)
- cognizance of offence by Magistrate
upon police report, Indian Penal Code,
1860 - Sections 302, 363, 201, 120B -
once a protest petition has been filed and
after recording the statement u/s 200 and
202 Cr.P.C., the concerned Magistrate
finds prima facie case is made out, he is
not bound by the opinion of Investigating
Officer which is found after recording the