DNA Tests Can Encroach On Privacy & Physical Autonomy, Can't Be Directed As A Matter Of Course: Jharkhand High Court

The Jharkhand High Court has observed that the order to conduct DNA Tests cannot be passed as a matter of course as such a direction may encroach privacy and physical autonomy of a person. With this, the bench of Justice Sanjay Kumar Dwivedi upheld an order of the Special Judge, POCSO, Ranchi rejecting the plea of the man, facing rape charges under the POCSO Act, seeking a direction to conduct his own and the child's DNA examination. The case/arguments in briefBefore the Court, the counsel for the petitioner-accused submitted that in a mechanical way, a charge sheet had been submitted against him for an alleged offence under Section 376 IPC and Section 4/6 POCSO Act, and thereafter, the charges have been framed and he has been put on trial. He sought permission to conduct the DNA tests so that the question of the paternity of the child could be decided.Challenging his plea, the State's Counsel argued that there are serious allegations of rape of a child against the petitioner, and conducting a DNA test in each and every case is not a rule. He further submitted that in a case of offence under Section 376 of IPC committed by the petitioner then the result of the DNA test by itself would be of no avail. Lastly, it was argued that in a case of rape, medical evidence is not always final but medical evidence plays the role of secondary evidence.High Court's observationsHaving heard the submissions of the Counsels for both parties, the Court, at the outset, noted that DNA tests cannot be allowed in a routine way. Further, the Court opined that for deciding the case under Section 376 of IPC, the paternity of the child is not relevant as the same can be decided on oral evidence, and therefore, holding of DNA test will not be relevant to the consideration of the charge.Further, the Court referred to the Supreme Court's ruling in the case of Goutam Kundu v. State of West Bengal [1993 (3) SCC 418], wherein the Supreme Court had held that no person can be compelled to give a sample of blood for analysis against his or her will and no adverse inference can be drawn for such refusal.In this regard, the Court also referred to the recent ruling of the Supreme Court in the case of Ashok Kumar v. Raj Gupta and others LL 2021 SC 525, wherein the Court had held that forcing an unwilling party to undergo DNA test impinges on personal liberty and right to privacy.Against this backdrop, the Court reasoned that merely because something is permissible under the law, cannot be directed as a matter of course to be performed particularly when a direction to that effect may encroach privacy and physical autonomy of a person. Consequently, in view of this, the Court came to the conclusion that there was no illegality in the impugned order of the Special Judge, POCSO, Ranchi. Hence, the petition was dismissed.Also read: DNA Tests Can Violate Privacy Right, Can't Be Directed As Matter Of Course; Section 112 Evidence Act Protects Children : Supreme CourtCase title - Afan Ansari vs. The State of Jharkhand and another [W.P. (Cr.) No. 536 of 2022]Case Citation: 2022 LiveLaw (Jha) 97Click here To Read/Download Order

DNA Tests Can Encroach On Privacy & Physical Autonomy, Can't Be Directed As A Matter Of Course: Jharkhand High Court

Sparsh Upadhyay

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