This article is written by Yash Kapadia. This article answers the question of whether the consent of the accused is required to take blood samples or not.
Blood evidence or DNA samples can help an investigating officer to establish a strong link between an accused and the criminal act. In fact, a conclusive, well-collected blood sample can also solve a criminal case. It is indeed an approach with a lot of advantages in a criminal case.
Usage of blood samples and DNA for the purpose of evidence in criminal matters has seen significant growth in the Indian judicial system. DNA testing has also led to solving severe and complex crimes that have happened across India and law enforcement has always been supportive of it. All in all, blood samples and DNA supported samples help in solving a crime by identifying criminals and also holding the innocence of the people who are framed for gruesome criminal acts.
Through this article, we shall examine the laws on this particular topic and answer the question if the consent of an accused is required or not to take their blood sample.
Legislation on this topic
The relevant legislation that refers to the afore-mentioned topic of taking blood samples is given under the Criminal Procedure Code, 1973. The following are precisely Section 53 and 54 of CrPC.
Section 53 of the CrPC states legislation relating to the examination of an accused by a medical practitioner at the request of a police officer. It is stated that when any person has been arrested and is charged with committing an offence or alleged to have committed an offence which is of such nature that there is reasonable ground to believe that if his examination is taken it will most likely determine whether the accused has committed that offence or not. It is therefore lawful for a registered medical practitioner in such scenarios to take an examination of that accused at the request of a police officer, not below the rank of a sub-inspector. The medical examination of the arrested accused can also be done under any person’s directions who is acting in good faith in order to ascertain the facts that help in gathering real evidence. All the more, this legislation also permits the use of reasonable force for taking the examination of the accused.
Section 53(2) states that if a female has to be examined in such a scenario then such examination must only be made by a female registered medical practitioner and no one else.
Section 54 of the CrPC states that when a person is arrested, that person must be examined by a medical officer employed by the State Government or the Central Government. However, in the absence of the medical officer, a registered medical practitioner after the arrest of a person. Similar to Section 53, if the arrested person is a female then examination must be made by or under the supervision of a female medical officer and in her absence, a registered female medical practitioner. A medical examination report is thereafter furnished by the medical officer/ practitioner to the arrested person
Such a medical officer/ practitioner must prepare a record of what has been examined like injuries, marks of violence anywhere on the body and the approximate time as to when the injuries were inflicted on him.
It is pertinent to note that in Sections 53 and 54, the words examination and registered medical practitioner are defined as below:
— “(a) “examination” shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and fingernail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;
(b) “registered medical practitioner” means a medical practitioner who possesses any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register.]”
As per the aforesaid legal provisions, we have a clear picture that the medical examination of an accused is allowed in cases where it is highly probable to determine whether the accused has committed the offence or not. We shall now ascertain by way of judicial precedents how the aforesaid provisions have been interpreted by the court of law on a case to case basis if the consent of an accused is required to take blood samples.
There have been certain landmark judgements wherein the courts have laid down their views and certain principles to be followed while taking blood samples from an accused. The following are the judicial precedents that answer if consent is required of the accused for taking blood samples or not.
Rohit Shekhar v. Shri Narayan Dutt Tiwari & Anr. (2011)
In this case, the Hon’ble Delhi High Court laid down guidelines that would serve as a guide to consider applications for medical examination of an accused before a civil court and matrimonial court. Some of the most prominent ones are the following:
- A civil and matrimonial court has implicit and inherent powers to order or direct any person/ accused to submit himself for medical examination (Sharda vs Dharmpal, 2003).
- Under Section 75(e) of the CPC and Order XXVI, Rule 10A the Court has requisite powers to issue an order or direction to hold a scientific, technical or expert investigation. (Re: Sharda, Selvi vs State of Karnataka, 2010).
- Any order by a court directing a medical examination of the accused will not be in violation of Article 21 i.e. the Right to Personal Liberty. (Goutam Kundu vs State of West Bengal, 2003).
- A court may suo moto or upon an application filed by a party, direct the medical examination of the accused (Re: Sharda). However, the principles of natural justice would require to be complied with.
- A court must not exercise such power as a matter of course or in order to have an inquiry. (Re: Goutam Kundu case). A power like this may be exercised if the applicant therein has a prima facie case with sufficient material available before the court (Re: Sharda). The court furthermore will consider the age, physical and mental health of the persons involved in the case.
- No one can be compelled to give a sample of blood for analysis. (Re: Goutam Kundu). If despite the order of the court, a person/ accused refuses to submit himself to medical examination, the court has the right to take the refusal on record and to pass an adverse inference against him (Re: Sharda).
- An accused person is asked to undergo a medical examination to enable the court to lead towards the truth. Even in matrimonial cases, removal of misunderstanding, bringing a party to amicable terms, judging the competency of a person if he can be a witness or whether a person/party/ accused needs any sort of treatment or protection, the capacity of a person/party/ accused to protect his interest or defence in the court of law or whether the person needs legal aid (Re: Sharda).
- Lastly, in a paternity claim/denial issue case, Section 112 of the Evidence Act, read with Section 4 which mandates the conclusive proof standard leaves the court with an extremely limited choice to allow evidence of “non-access” to a wife by the husband who has alleged that the child begotten by her is not his own offspring. It is in fact designed to protect the best interests of the child and his legitimacy in this world. (Rohit Shekhar (Bhat, J – DOJ 23rd December, 2010).
Neeraj Sharma (In Jail) v. State Of U.P.
In this case, the Division Bench of Allahabad High Court dealt with two issues:
- Whether a Magistrate has the power to direct that sample of hairs of an accused to be taken for the purpose of comparison against his wishes.
- Whether point 1 violates the fundamental right of the accused guaranteed under Article 20(3) of the Constitution.
The Hon’ble concluded that there is nothing offensive or shaking of the conscience in taking a blood sample of an accused person to establish his guilt and so far as the power of a Magistrate Court to direct medical examination is concerned. While quoting Section 53 (as discussed above) of the CrPC, the Hon’ble Court held that it would not be acceptable to restrict the meaning of the word “examination” used in Section 53. An examination of the accused should denote a complete examination which a medical practitioner may like to have by all modern means and scientific tools that are available to give his opinion and not only be limited to any inadequate examination by having a look at the body of the accused which provides no conclusion relating to the evidence being sought. A doctor who is used to working on modern-day techniques and equipment for such purposes may refuse to give his opinion unless he performs the necessary scientific tests to his satisfaction. The Court stated that the legislature has been conscious of this and has therefore made a specific provision permitting the use of reasonable force while enacting Section 53 of the Code of Criminal Procedure of 1973. Therefore, the Hon’ble Court stated that a Magistrate has full power to direct a medical examination of the accused which may include collecting samples of his nails, hairs, etc. where the offence alleged to have been committed is of such a nature and is alleged to have been committed under such circumstances that there are reasonable grounds for believing that such an examination will afford evidence as to the commission of an offence.
H.M. Prakash Alias Dali v. the State Of Karnataka
In this case, the Hon’ble Karnataka High Court stated that a Criminal Court can direct the accused for a blood test depending on the facts and circumstances of the case to find out the guilt or innocence of the accused. However, it is pertinent to note that the Court also stated that such a direction will not amount to a violation of Article 20(3) of the Constitution of India. The Court opined that in some cases, where it is risky and against the interests of a child’s future, then there should be significant caution maintained as regards the passing of such an order. In fact, such direction by the Court may be made for medical examination, only if it is in the interest of the child, depending upon the facts and circumstances of a particular case.
In this, it was alleged that the petitioner promised the complainant that he would marry her. He then had intercourse with her and eventually, it led to pregnancy resulting in giving birth to a baby boy. Though the child was born out of the alleged sexual relationship between the complainant and the petitioner, he had every right to live with dignity and respect in society. Therefore, the Court concluded that in order to clear the woman’s name from being a social stigma and the baby boy being called a bastard all his life, it was just and necessary for the investigating authority to obtain the blood sample of the accused for testing and to subject him for medical examination.
In drawing things to a close, what we are able to ascertain from this article is that there are definite legislation i.e. Section 53 and 54 of the CrPC which precisely, in crystal clear language state that blood samples can be taken of the accused. Even further, reasonable force can also be used in situations wherein the accused refuses to comply and co-operate in giving his blood samples to a medical office or a medical practitioner.
Judicial precedents have also made the blurry lines clear that obtaining blood samples have a few specific guidelines that depend on the facts and circumstances of each case. It is further also concluded by our nation’s Hon’ble Courts that the taking of a blood sample of an accused does not amount to the violation of the fundamental right guaranteed under Article 20(3) of the Constitution of India, which was generally the defence of the accused in such cases.
Therefore, the law is pretty clear along with a combination of landmark judgements that blood samples of the accused can be taken with or without his consent (but only by using reasonable force). However, if an accused does not cooperate, the same would be taken on record by the court and necessary actions would be levied on the accused for contempt of court’s directions.
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