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Report No. 271

4.15 In Kalawati v. State of H.P; 15 and Ramanlal Bhogilal Shah v. D.K. Guha16, the Supreme Court held that Article 20 (3) does not apply at all to a case where the confession is made by an accused without any inducement, threat, or promise. In view of the provisions of sections 24-27 of the Indian Evidence Act, 1872, and section 162 of the Code of Criminal Procedure 1973, it is an obligation on the judiciary to ensure that confession of the accused is not procured by an inducement, threat, promise, or fear17.

Section 24 of the Evidence Act, 1872 is an extension of right to silence guaranteed under Article 20(3) of the Constitution, as it clarifies that any information given by an accused under inducement, threat or promise is irrelevant under criminal proceedings, going by the maxim nemo debet proderese ipsum, i.e., no one can be required to be his own betrayer.18 An accused has a right to refuse to produce self-incriminating documents19.

4.16 The Supreme Court in Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for women20, whilst pressing upon the significance of DNA testing in the process of administration of justice held: when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed.

4.17 In Krishan Kumar Malik v. State of Haryana21 , the Supreme Court explained that even in the absence of section 53A Cr. P.C., DNA profiling could be permissible under law. The Court observed: Now after the incorporation of section 53A in Criminal Procedure Code with effect from has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provisions in Cr. P.C., the prosecution could have still resorted to this procedure of getting the DNA make it a fool proof case.

4.18 In Sudhir Chaudhary & Ors. v. State (NCT of Delhi),22 the Supreme Court held that an accused can be directed to give a voice sample as it was not the testimony but rather it constituted identification data.

4.19 In Leena Katiyar v. State of U.P. & Ors.,23 the Allahabad High Court held that even in absence of any inherent power or statutory authorisation, the Magistrate is competent to direct an accused to give voice sample for identification in view of the provisions of section 165 read with section 65B of the Indian Evidence Act, 1872. But the Gujarat High Court, in Natwarlal Amarshibhai Devani v. State of Gujarat & Ors.,24 took a contrary view observing that in absence of any provision enabling the Magistrate to order Voice Spectrographic Tests, the Court was not competent to direct an accused to give the voice sample.

4.20 In Naveen Krishna Bothireddy v. State of Telangana 25 , the Andhra Pradesh High Court upheld the order passed by the trial court directing the accused to undergo medical tests/ potency test or erectile dysfunction (ED) test, observing that such tests do not violate the mandate of Article 20(3) and Article 21 of the Constitution.

4.21 The Courts have persistently held that in case the accused does not want to undergo such tests the Court is at liberty to draw adverse inference under Illustration (h) of section114 of the Indian Evidence Act, 187226. However, in Rohit Shekhar v. Narayan Dutt Tiwari & Ors.27, the Delhi High Court held that "a person can be forced to undertake the test for the reason that the valuable right of the party cannot be taken away by asking the said party to be satisfied with comparatively week adverse inference".

4.22 In Goutam Kundu v. State of West Bengal,28 the Supreme Court observed:

(1) that courts in India cannot order blood test as a matter of course;

(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.

(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis.

4.23 In Kanti Devi v. Poshi Ram,29 the Court dealt with the issue of determining the paternity of a child and held:

The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable.

This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above.

4.24 However, in Nandlal Basudev Badwaik v. Lata Nandlal Badwaik30 the Court held that depending on the facts and circumstances of the case, it would be permissible for the Court to direct the DNA examination to determine the veracity of the allegation(s) made in a case. If the direction to hold such a test can be avoided, it should so be avoided. The reason is that the legitimacy of the child should not be put to peril.

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