Kathi David Raju vs The State Of Andhra Pradesh

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1186 OF 2019 (@ Special Leave to Appeal (Crl.) No(s). 5121/2018)

KATHI DAVID RAJU Appellant(s)

VERSUS

THE STATE OF ANDHRA PRADESH & ANR. Respondent(s)

J U D G M E N T

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 Date: 2019.08.05 17:05:47 IST alleged Reason: that the appellant on the basis of caste certificate

1 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

2 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

3 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

4 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.

......................J. ( ASHOK BHUSHAN )

......................J. ( NAVIN SINHA ) New Delhi, August 05,2019.

5