Narendra G.Goel vs State Of Maharashtra & Anr

Narendra G. Goel ....Appellant

Versus

State of Maharashtra & Anr. ....Respondents

CRIMINAL APPEAL NO. OF 2009

1 (Arising out of SLP (Crl.) No. 3206 of 2007)

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted in both the Special Leave Petitions.

2. Challenge in these appeals is to the judgment of a Division Bench of

the Bombay High Court. The appeal relating to Special Leave Petition

(Crl.) No. 1880 of 2007 has been filed by Narender Goel who was not a

party before the High Court while the Criminal Appeal relating to SLP(Crl.)

No. 3206 of 2007 has been filed by Pawankumar Satyanarayan Goenka who

2 was also not a party before the High Court. Dr. Sadankumar Goel, the

petitioner in Criminal Writ Petition No. 1930 of 2006 is the husband of Dr.

Asha Goel (hereinafter referred to as the `deceased') who was found

murdered. Said Dr. Sadankumar Goel filed the Criminal Writ Peition No.

1930 of 2006 with the prayer that respondents 1 to 7 in the Writ Petition

should be directed to take appropriate steps under Section 166(A) of the

Code of Criminal Procedure, 1973 (in short the `Code') in CPNA No. 6 of

2004 registered at DCB CID, Unit II Malabar Hill Police Station CR. No.93

of 2003, in so far as the forensic investigation is concerned and to approach

the Government of Canada for seeking assistance from appropriate agencies

of the said Government to investigate the offences in so far as they relate to

DNA testing of the articles recovered from the accused Pawankumar

3 Satyanarayan Goenka the appellant in the appeal relatable to Special Leave

(Crl.) No. 3206 of 2007 and Pradeep Parab during the investigation and of

the materials recovered from the Santro car seized during investigation

along with all other materials collected in the course of investigation

relevant for the purpose of such forensic and medical examination to

Canada as there is no such facility available in India.

3. Stand of Dr. Sadankumar was that for want of proper medical and

forensic investigation, material evidence would be lost to the prosecutor and

therefore at his request office of a Chief Coroner of the Province of Ontario

has written a letter to Commissioner of Police, Crawford Market, Mumbai

that they are ready to assist the investigating team in their desired area and

4 the office of the Chief Coroner for Ontario has performed a second autopsy

of the deceased at the family's request and they have preserved genetic

material of the deceased which can be used to make a genetic comparison to

any samples that the Investigating Agencies in India wish to have tested.

4. The High Court after hearing noted that the reply reflects the concern

on the part of the office of the Chief Coroner for Ontario; the deceased was

a Canadian Citizen and a resident of Ontario. The High Court called upon

the investigating agency to file their short reply. In the reply filed it was

accepted that the facility for Mitochondrial DNA analysis is not available in

the Forensic Science Laboratory either in Kalina or at Kolkatta and if it is

the writ petitioner's belief that carrying out such an analysis on the material

5 seized by the police during the course of investigation would bring to light

with unerring certainty the culpability of the concerned accused, it will not

only aid the investigation but also there cannot be any question of objection

to the helping hand offered by the writ petitioner to the investigating

agency. 5. The Court after considering the various submissions directed

the investigating agency to get the material collected in the course of

investigation examined in Canada. It noted that it will take sometime and

therefore the trial court would wait for such a report which will be part of

medical and forensic investigation which can be filed in the trial court under

Section 173(8) of the Code.

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6. The basic stand of the appellants is that the High Court has not kept

in view the parameters of Section 166A of the Code. It is submitted that

some evidence which is already in existence but in a country outside India

can be collected. But for that purpose

1 application is required to be made by the prosecution

before the Competent Court of law i.e. the Court which is

seized of the matter; and

2 the application shall be for collecting the evidence and not

for creating the evidence.

7 (3) On such application being allowed, an appropriate

request by way of letter of authority from competent court of

law to the concerned court of law or authority where such

evidence is available has to be made.

7. It is the stand of the appellants that in the instant case neither the

application has been made by the prosecution nor any letter of request had

been issued by competent court of law. Though the Court of Session at

Sewree in Mumbai is seized of matter by avoiding the said court and by

invoking writ jurisdiction of the Bombay High Court, consent order has

been obtained between the family members of the deceased and the

8 prosecution keeping the accused persons completely away from the

proceeding though their rights are directed affected.

8. It is submitted that by the impugned order the Investigating Officer

has been authorized to remove important piece of evidence from Bombay,

take the same directly from the Office of the Chief Coroner of Ontario

Laboratory for Mitochondrial DNA test. There is no letter of request from

competent court to the concerned court or authority. The laboratory in

question cannot be considered to be authority covered under Article 12 of

the Constitution of India, 1950 (in short the `Constitution') and in view

thereof it cannot be said that the matter had been submitted to the authority

9 contemplated under the provisions of law. It is submitted that the required

test can be conducted at Kolkata.

9. The stand of the respondent No.2 is that the attempt of the accused

person is to avoid detention of materials which would show the involvement

of the accused persons. The State Government in its affidavit before the

High Court has accepted that the facility of Mitochondrial DNA test is not

available in the Forensic Laboratory either in Kalina or Kolkata. The

investigating officer made similar statement. The FSL Kalina noted that the

material for extraction of DNA was an old or washed clothes. The

investigating officer therefore rightly stated that carrying out such an

analysis on the material seized by the police during the course of

10 investigation would bring to light with unerring certainty culpability of the

concerned accused.

10. It is well settled that the accused has no right to be heard at the stage

of investigation. The prosecution will however have to prove its case at the

trial when the accused will have full opportunity to rebut/question the

validity and authenticity of the prosecution case. In Sri Bhagwan Samardha

Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P.

[(1999) 5 SCC 740] this Court observed, "There is nothing in Section

173(8) to suggest that the court is obliged to hear the accused before any

such direction is made. Casting of any such obligation on the court would

11 only result in encumbering the Court with the burden of searching for all the

potential accused to be afforded with the opportunity of being heard." The

accused can certainly avail himself of an opportunity to cross examine

and/or otherwise controvert the authenticity, admissibility or legal

significance of material evidence gathered in course of further

investigations. Further in light of the views expressed by the investigating

officer in his affidavit before the High Court, it is apparent that the

investigating authorities would inevitably have conducted further

investigation with the aid of CFS under Section 173(8) of the Code.

11. We are of the view that what is the evidentiary value can be tested

during trial. At this juncture it would not be proper to interfere in the

12 matter. It appears from the statement of learned counsel for the State that

the lady who was murdered in Bombay was a Canadian citizen of the Indian

origin. It is stated that there was a confession by accused persons on the

basis of which recoveries were made. The blood stained clothes of the

accused (A1) and the deceased were seized.

12. It is pointed out as noted above that the Canadian citizen was

murdered and therefore the Candian police was involved. Dead body was

taken to Canada and the genetic material were with the Canadian Coroner.

Before the application by respondent No. 2 was filed there was a letter by

the Coroner to the Police Commissioner. Whether there is actually illegal

13 recovery, since documents are there they are to be proved. In that view of

the matter we are not inclined to interfere and it is for the court to decide

whether the evidence is admissible or otherwise. The appeals are

accordingly dismissed.

....................................................J.

(Dr. ARIJIT PASAYAT)

....................................................J. (ASOK KUMAR GANGULY)

New Delhi;

May 08, 2009

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