Supreme Court of India
Kathi David Raju Vs State Of
Andhra Pradesh decided on 5 August, 2019
Hon'ble Judges: Ashok Bhushan,
Navin Sinha
CRIMINAL APPEAL NO. 1186 OF 2019 (@
Special Leave to Appeal (Crl.) No(s). 5121/2018)
ASHOK BHUSHAN,J.
Leave granted.
We have heard learned counsel for
the parties. This appeal has been filed against the judgment dated 04.06.2018
dismissing the application under Section 482 of the Code of Criminal Procedure
(Cr.P.C.) filed by the appellant for quashing the order dated 22.01.2016 passed
by the Additional Junior Civil Judge, Bapatla. The High Court by the impugned
judgment has dismissed the application under Section 482, Cr.P.C. Brief facts
giving rise to this appeal are:
Respondent No.2 filed First
Information Report dated 06.01.2016 under Sections 465, 468, 471 and 420 IPC
against the appellant. The substance of the allegation in the FIR was that the
appellant has obtained a fake Scheduled Caste certificate of caste ‘Yanadi’
whereas he belonged to ‘Telanga’ caste. Signature Not Verified It was further
Digitally signed by SANJAY KUMAR alleged Reason:
that the appellant on the basis
of caste certificate obtained employment and working as Additional Assistant
Engineer in V.T.P.S. Electricity Generation Corporation. The original name of
the appellant is ‘Immadabathina Veeranjaneyulu s/o Venkata Kotaiah’. The
appellant has changed his name as ‘Kathi David Raju son of Yedulcondalu’. It is
further pleaded that two children of the appellant had also obtained fake caste
certificate of ‘Yanadi’ caste. On the basis of FIR, the appellant was arrested
on 11.01.2016 and sent for judicial remand. On 13.01.2016, an application was
filed before the Additional Junior Civil Judge, Bapatla requesting that the
Court may direct conducting of DNA test of the appellant, the mother of the
appellant and the two brothers of the appellant. The Additional Junior Civil
Judge by order dated 22.01.2016 directed for conducting DNA test at the request
made by the Station House Officer (SHO), Bapatla Town Police Station.
Aggrieved by the order dated
22.01.2016 passed by the Additional Junior Civil Judge, an application under
Section 482, Cr.P.C. has been filed by the appellant in the High Court praying
for quashing of order dated 22.01.2016 which has been dismissed by the High
Court by the impugned judgment.
Learned counsel for the appellant
contends that the learned Magistrate committed error in directing for
conducting DNA test on insufficient grounds and material. The Investigation
Authorities have not completed the investigation and as roving and fishing
enquiry, they cannot be permitted to conduct DNA test on the appellant. It is
further submitted that respondent No.2 is claimed to be an office bearer of fake
association who due to personal ill- will against the appellant has lodged FIR
questioning the caste certificate of the appellant. It is submitted that there
is an enactment viz. The Andhra Pradesh (SC, ST and BCs) Regulation of Issue of
Community Certificates Act, 1993 under which there is a provision for
cancellation of false community certificate, provision of penalty and other
relevant provisions. The FIR lodged by respondent No.2 was an act of malice and
it was with an intent to harass the appellant.
Learned counsel appearing for the
respondent submits that the police authorities had rightly requested the Court
for permitting them to conduct DNA test since the allegations in the FIR have
been made that the appellant is son of ‘Venkat Kotaiah’ whereas he claimed to
be son of ‘Yedulcondalu’. It is also submitted that Section 53 Cr.P.C. empowers
the police officer to request for DNA test.
We have considered the
submissions of the learned counsel for the parties and perused the record.
As noted above, the FIR was
lodged on 06.01.2016 where the allegation against the appellant was of
obtaining a false caste certificate of Scheduled Caste with a further
allegation that he originally belonged to ’Telanga’ caste. The appellant was
arrested on 11.01.2016 and on 13.01.2016 itself, the SHO submitted an
application in the Court of Additional Junior Civil Judge for permitting
conducting of DNA test on which impugned order was passed. The impugned order
itself noted the following submission:-
“The learned APP
submitted that the investigation not yet completed and material evidence yet to
be collected and also police custody is required to complete the investigation.
Further contended that the DNA test in between the accused No.1 and mother of
the accused No.1 along with family members of the accused No.1 is most required
to prove the blood relationship in between the accused NO.1 and mother of
parental relatives of the accused NO.1. Hence, the learned APP request the
court to allow the petition for examine respondent /accused for DNA test.”
There can be no dispute to the right of police authorities to seek permission
of the Court for conducting DNA test in an appropriate case. In the present
case, FIR alleges obtaining false caste certificate by the appellant by changing
his name and parentage. The order impugned itself notices that investigation is
not yet completed and material evidence are yet to be collected.
The police authorities without
being satisfied on material collected or conducting substantial investigation
have requested for DNA test which is nothing but a step towards roving and
fishing enquiry on a person, his mother and brothers. It is a serious matter
which should not be lightly to be resorted to without there being appropriate
satisfaction for requirement of such test.
It is the submission of learned
counsel for the respondent that Section 53 Cr.P.C empowers the police
authorities to request a medical practitioner to conduct examination of a
person. There cannot be any dispute to the provision empowering police
authorities to make such a request. Present is a case where without carrying
out any substantial investigation, the police authorities had jumped on the
conclusion that DNA test should be obtained. It was too early to request for
conduct of DNA test without carrying out substantial investigation by the
police authorities. The Additional Junior Civil Judge also failed to notice
that in the investigation conducted by the Investigating Authority no such
materials have been brought on the basis of which it could have been opined
that conducting DNA test is necessary for the appellant on his mother and two
brothers. We, thus, are of the view that the order passed by the Additional
Junior Civil Judge dated 22.01.2016 was unsustainable. The High Court committed
error in not setting aside the said order in exercise of its inherent
jurisdiction under Section 482 Cr.P.C. In result, we allow the appeal, set
aside the impugned judgment and order passed by the High Court as well as the
order of the Additional Junior Civil Judge dated 22.01.2016. It shall, however,
be open for the Court concerned to consider the request for conducting DNA test
on there being sufficient materials on record to take any such decision.
The appeal is allowed to the
above extent.
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