The Calcutta High Court allowed the application filed by a rape accused seeking DNA Test of the child and clarified that when “non-access” to a relationship is claimed by the accused, it is his right to have the same proved by way of evidence available/possible. The High Court was considering a revisional application preferred against an order of the Additional Sessions Judge arising out a criminal case registered under Sections 376 and 420 of the Indian Penal Code. The Single-Judge Bench of Justice Shampa Dutt (Paul) said, “Thus, when “non-access” is claimed in such a relationship, it is the right of the accused to have the same proved by way of evidence available/possible.”
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KOLKATA: The Calcutta High Court allowed an application filed by a rape accused seeking a DNA test for the child involved in the case. The Court emphasized that when “non-access” to a relationship is claimed by the accused, it is his right to have this contention substantiated through available evidence.
The case arose from a revisional application against an order issued by an Additional Sessions Judge in a criminal case registered under Sections 376 and 420 of the Indian Penal Code (IPC).
Justice Shampa Dutt (Paul), presiding as a Single-Judge Bench, remarked,
“Thus, when ‘non-access’ is claimed in such a relationship, it is the right of the accused to have the same proved by way of evidence available/possible.”
This clarification was central to the Court’s decision, ensuring the accused’s legal rights to substantiate claims of non-access.
The case involved allegations that the accused had sexually exploited the complainant’s daughter, a minor at the time, under the pretense of a promise to marry her. Advocate Dipankar Aditya represented the petitioner, while Advocate Bibaswan Bhattacharya appeared for the respondent.
According to the complainant, his daughter, aged 17 or 18, had entered into a physical relationship with the petitioner, leading to her pregnancy. The complainant demanded that the petitioner be compelled to marry his daughter. Following an investigation, a charge sheet was filed under Sections 376 (rape) and 420 (cheating) of the IPC.
During the trial, the victim expressed her willingness to undergo a DNA test for herself and her child to establish paternity.
The petitioner had also requested a DNA test to determine the relationship between himself, the victim, and the child. However, the trial court rejected the application, citing concerns about wasting judicial time.
The pivotal question before the High Court was whether conducting a DNA examination was essential for proper adjudication of the case. The petitioner denied any physical relationship with the victim and claimed that the child was not his. The victim, on the other hand, asserted that the child was indeed fathered by the petitioner.
The High Court noted that no marriage existed between the parties, and the allegations included severe offenses under Section 376 IPC. It acknowledged that a positive DNA result could establish paternity, which would indicate access to the relationship.
However, proving the offense under Section 376 IPC would require further corroborative evidence.
Drawing from the Supreme Court’s decision in Dipanwita Roy vs. Ronobroto Roy (2015) 1 SCC 365, the Bench emphasized,
“Thus the prayer of the petitioner is required to be allowed, not only, in the interest of justice, but also in exercise of a valuable right available to the petitioner, which if denied shall be an abuse of the process of law.”
The High Court set aside the order of the Additional Sessions Judge and directed the petitioner to deposit a sum of Rs 1 lakh with the Trial Court. If the DNA test result confirmed paternity, the amount would be given to the victim and her child.
The decision reaffirms the principle that an accused has the right to access evidence to defend himself against allegations.
By allowing the DNA test, the Calcutta High Court has ensured a fair process in determining the facts of the case.
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