Karnataka high court says DNA test of rape accused to determine paternity not self incriminatory

The High Court has striked down a petition filed by a rape accused seeking to quash the DNA report which confirmed him to be the biological father of a child born to the victim of sexual assault.

Dismissing the petition filed by the accused, questioning the order of the trial court in January 2017 on the ground that the order amounts to self-incrimination, Justice HP Sandesh said the contention of the accused cannot be accepted and also said “I do not find any error committed by the magistrate in ordering for a DNA test”.

Further, relying on the case of Kathi Kalu Oghad, the Bench added that self-incriminatory information given by the accused without compulsion does not amount to a violation of Article 20(3) of the Constitution of India.

Justice HP Sandesh pointed out that in Banarsi Dad vs Teeku Dutta and another case (2005), the Supreme Court had already held that a DNA test to determine paternity is not to be directed as a matter of routine but only in deserving cases.

The petitioner’s blood sample was drawn on January 5, 2017. While the first report came on February 27, 2017, the final opinion was out on March 30, 2017. The petitioner challenged the decision to subject him to a DNA test last year.

Earlier the prosecution filed an application before the trial court to conduct a DNA test and sought direction to the Chief Medical Officer to extract the relevant portion of the body of her deceased infant for conducting a DNA test and the magistrate court came to the conclusion that identification of infant’s DNA is necessary for investigation, and directed the CMO to conduct a DNA test.

Section 53A empowers a registered medical practitioner acting on the request of a police officer not below the rank of a sub-inspector to examine an accused person and to use force which is reasonable for the same, the Court noted.

Notably, on the petitioner's argument that providing the samples for the same amounts to a violation of the right against self-incrimination in Article 20, the Court said that if "the self-incriminatory information has been given by an accused person without any threat, that will not be hit by the provisions of Clause (3) of Article 20 of Constitution of India for the reason that there has been no compulsion.

In its order, the Bench also ventured into the feasibility of permitting DNA profiling for criminal investigations. It firstly explained that a DNA profile is a record created on the basis of DNA samples made available to forensic experts.

Finally, the court delivered the judgement that The very contention of the petitioner before this Court is that it amounts to self-incrimination, and subjecting him for drawing of blood sample in order to test the paternity of the child amounts to a violation of Article 20(3) of the Constitution of India, cannot be accepted.