(Prayer: This petition is filed under Articles 226 and 227 of the Constitution of India, praying to issue a writ declaring that S.53-A of the Code of Criminal Procedure is unconstitutional and ultra vires the Constitution of India; quash the impugned notice dated 18.10.2014 issued by the 2nd respondent produced as Annexure-S.)

1. The constitutional validity of S.53-A of the Code of Criminal Procedure, 1973 (for short the Code), is in issue, in this writ petition. That apart, there is challenge to a police notice dated 18.10.2014, as at Annexure-S, whereby, the second respondent called upon the petitioner to appear at 9.00 a.m., on 21.10.2014, in empty stomach, for medical examination at Victoria Hospital, Bengaluru.

2. Section 53-A of the Code, which was inserted by Act No.25 of 2005, with effect from 23.06.2006, reads as under:

"S.53A. Examination of person accused of rape by medical practitioner.-

(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:-

(i) the name and address of the accused and of the person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA profiling, and

(v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section."

3. To appreciate the controversy raised in this petition, relevant facts are:

Miss Amushumathi Shastry, D/o.Diwakar Shastry lodged a complaint on 26.08.2014 before the Banashankari Police and a case in Crime No.219/2014 was registered for the offences punishable under Ss.354-A and 506 of IPC.

Banashankari Police transferred the said complaint and FIR No.219/2014 to the Girinagar Police and a case was registered in Crime No.164/2014. On 05.09.2014, the said case was transferred to the CID Special Cell.

W.P.No.43825/2014 filed to quash the complaint dated 26.08.2014 and FIR dated 28.08.2014, registered in Crime No.164/2014 by Girinagar Police (FIR in Crime No.219/2014 registered by Banashankari Police) was dismissed on 09.10.2014. In Crl.Misc.No.5826/2014, Addl. City Civil and Sessions Judge, Bengaluru by an order dated 09.10.2014, granted interim bail under S.438(1)(iv) of the Code. On 12.10.2014, respondent No.2, served a notice on the petitioner, to appear on 13.10.2014, in respect of Crime Nos.164/2014 and 113/2014 for interrogation. The petitioner by submitting a representation dated 12.10.2014 sought time. In Crl.Misc.No.5896/2014, Addl. City Civil and Sessions Judge, Bengaluru granted an interim bail on 13.10.2014. Thereafter, the petitioner appeared before respondent No.2 with regard to the investigation in respect of the said crimes.

4. Notice vide Annexure- S having been served on 20.10.2014, this writ petition was filed to declare S.53-A of the Code, as ultra vires the Constitution of India and quash Annexure-S. On 20.10.2014, Annexure - S and all further proceedings in pursuance thereof was stayed until further orders. I.A.No.1/2014 filed on 27.10.2014, to implead respondent No.3, was allowed on 19.11.2014 and the cause-title was amended.

5. Heard Mr. K.G. Raghavan and Mr. Ashok Haranahalli, learned Senior Advocates, for the petitioner and Prof. Ravivarma Kumar, learned Advocate General and Sri Krishna S. Dixit, learned Assistant Solicitor General of India, for the respondents.

6. Mr. K.G.Raghavan, learned Senior Advocate, argued that S.53-A of the Code is violative of Articles 14, 20(3) and 21 of the Constitution. He submitted that the Section confers on a Police Officer and the registered medical practitioner, unguided, unfettered and unbridled power and thus, the provision is manifestly arbitrary. He submitted that the provision completely militates against the fundamental rights guaranteed under Clause (3) of Article 20 and Article 21 of the Constitution, more particularly, the right to privacy and dignity. He contended that S.53-A should be construed strictly and Article 21 widely. He submitted that, as the impugned provision enables a Police Officer to use force against an arrested person in the matter of examination of such person, the same being arbitrary, is unconstitutional. He submitted that extraction of body fluids from an accused, by use of physical force, causes physical pain and mental agony, amounting to compulsive testimony prohibited under Clause (3) of Article 20. He submitted that the petitioner being potent, which was made clear on 20.10.2014, when the interim order was passed in this petition, there is no need for the Investigating Officer, to subject the petitioner to medical examination under S.53-A of the Code. In support of the contentions, he relied upon the following decisions:

SHEO NATH Vs. APPELLATE ASSISTANT COMMISSIONER: AIR 1971 SC 2451 [LQ/SC/1971/385] C. RAJPAL Vs. S.P. CHALIHA, AIR 1971 SC 730 [LQ/SC/1971/60] NARAYANAPPA Vs. I.T. COMMISSIONER, AIR 1967 SC 523 [LQ/SC/1966/216] UNION OF INDIA Vs. SHIV SHANKER KESARI, (2007) 7 SCC 798 [LQ/SC/2007/1115] BARIUM CHEMICALS LTD. Vs. COMPANY LAW BOARD: AIR 1967 SC 295 [LQ/SC/1966/132] A.K. SEN Vs. UNION OF INDIA, (1980) ILR 2 DELHI 868 GOUTAM KUNDU Vs. STATE OF WEST BENGAL,(1993) 3 SCC 418 [LQ/SC/1993/490] SHARDA Vs. DHARMPAL, AIR 2003 SC 3450 [LQ/SC/2003/414] AMRIT SINGH Vs. STATE OF PUNJAB, (2006) 12 SCC 79 [LQ/SC/2006/1070] SELVI Vs. STATE OF KARNATAKA:, AIR 2010 SC 1974 [LQ/SC/2010/497] B.P. JENA Vs. CONVENOR SECRETARY, ORISSA STATE COMMISSION FOR WOMEN, AIR 2010 SC 2851 [LQ/SC/2010/770] VENKATESHA Vs. STATE OF KARNATAKA,CRL.P..No.2105/13 Dt.30/05/2013. K.M. MUNISWAMY REDDY Vs. STATE OF KARNATAKA, ILR 1992 KAR 2543 TATE OF KARNATAKA Vs. CHIKKABALA NAIKA,ILR 2002 KAR 5151 PEOPLES UNION FOR CIVIL LIBERTIES AND ANR. Vs. UNION OF INDIA: AIR 2004 SC 456 [LQ/SC/2003/1287] NARCOTICS CONTROL BUREAU Vs. DILIP PRALHAD NAMADE: (2004) 3 SCC 619 [LQ/SC/2004/391] UNION OF INDIA Vs. SHIV SHANKER KESARI, (2007) 7 SCC 798 [LQ/SC/2007/1115] S.SUNDARAM PILLAI & OTHERS Vs. V.R. PATTABIRAMAN & ORS.: (1985) 1 SCC 591 [LQ/SC/1985/23] BABUBHAI Vs. STATE OF GUJARAT & OTHERS, (2010) 12 SCC 254 [LQ/SC/2010/883] KARAN SINGH Vs. STATE OF HARYANA & ANOTHER, (2013) 12 SCC 529 [LQ/SC/2013/598] V.K. SASIKALA Vs. STATE, (2012) 9 SCC 771 [LQ/SC/2012/860] SMT. MANEKA GANDHI Vs. UNION OF INDIA, AIR 1978 SC 597 [LQ/SC/1978/27] RITESH SINHA Vs. STATE OF UTTAR PRADESH, AIR 2013 SC 1132 [LQ/SC/2012/1098] D.K. BASU Vs. STATE OF W.B., (1997) 1 SCC 416 [LQ/SC/1996/2231]

7. Mr.Ashok Haranahalli, learned Senior Advocate, argued that S.53-A is inconsistent with the provisions of the Code. He referred to the Karnataka Police Manual and S.197 of the Code. According to him, the expression "examination of his person" appearing in Ss.53, 53-A and 54 - cognate provisions, sanction only the external medical examination of body of an accused and do not authorise extraction of any fluids, without his consent and if the said provisions are not so interpreted, S.53-A fall foul of Articles 14, 20(3) and 21 of the Constitution and would run against the ratio of the decision in SELVIs case, (supra). He contended that investigation by respondent No.2 must be fair and the rights of the accused, guaranteed under the Constitution and the statutory provisions, should be protected. According to the learned counsel, there is need for respondent No.2, to disclose to the petitioner, the proposed test/s, as otherwise, the action would be wholly arbitrary. He submitted that S.53-A vests unreasonably excessive power in a Police Officer in deciding the choice of medical test, that too, without intimating the accused in advance, with regard to the nature of test/s, to which he would be subjected to. He contended that the provision being arbitrary, is unconstitutional.

8. Mr. Krishna S.Dixit, learned Assistant Solicitor General of India, stoutly defended S.53-A. He submitted that the provision was inserted, as per Act No.25 of 2005, with effect from 23.06.2006, providing for medical examination of an accused in rape case and attempt for rape case, based on the recommendations of the 84th and 172nd report of the Law Commission of India. He submitted that in civilized legal systems the medical examination of an accused and use of reasonable force are sanctioned either by law or by judicial decisions. He referred to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the General Assembly Resolution No.A/RES/39/46 of 10th December, 1984 and United Nations Declaration on the Elimination of Violence against Women. He contended that the Court cannot strike down a statutory provision for being arbitrary and unreasonable so as to substitute its own wisdom for that of the Legislature. He submitted that there being no challenge to the impugned provision on the ground of lack of legislative competence and the challenge being only on the ground that it is arbitrary and unguided, in view of the Constitutional limitations, the provision cannot be struck down on the ground that it is unreasonable or unjust. He submitted that unless a Constitutional infirmity is pointed out, the provision cannot be struck down on the apprehension of unreasonableness or arbitrariness. He submitted that S.53-A satisfies the test of reasonableness as it has a rational nexus with the object sought to be achieved on account of the increased crime rate against women. He further submitted that mere possibility of abuse of power cannot invalidate the provision made by the competent Legislature as there is always a presumption in favour of the Constitutionality of the provision or the enactment, since it has to be presumed that the Legislature understands and correctly appreciates the need of its own people and that its laws are directed to problems manifest by experience. He contended that S.53-A does not violate any of the rights in Part-III of the Constitution or any other Articles of the Constitution. With regard to the presumption in favour of validity and constitutionality of a statute, he placed reliance on the decisions of the Apex Court, in STATE OF A.P. AND OTHERS Vs. McDOWELL AND CO. AND OTHERS, AIR 1996 SC 1627 [LQ/SC/1996/659] ; COMMISSIONER OF SALES TAX, M.P. Vs. RADHAKRISHAN AND OTHERS, AIR 1979 SC 1588 [LQ/SC/1978/298] ; DORA PHALAULI Vs. STATE OF PUNJAB AND OTHERS, AIR 1979 SC 1594 [LQ/SC/1979/294] ; NAND LAL Vs. STATE OF HARYANA, AIR 1980 SC 2097 [LQ/SC/1980/259 ;] ">AIR 1980 SC 2097 [LQ/SC/1980/259 ;] [LQ/SC/1980/259 ;] .

9. Prof. Ravivarma Kumar, learned Advocate General, submitted that there is presumption of Constitutionality and mutual respect inherent in doctrine of separation of powers. He submitted that S.53-A was inserted in the Code on the basis of the recommendation of the Law Commission of India, to check the offence of rape or attempt to commit rape, by a person against woman. He submitted that the petitioner would not be subjected to any of the three test/s, which were the subject matter of consideration and held as not permissible by the Apex Court, in SELVIs case. He also submitted that the petitioner would not be subjected to the Voice test; regarding which, the matter was referred to a Larger Bench, in the case of RITESH SINHA Vs. STATE OF U.P., (2013) 2 SCC 357 [LQ/SC/2012/1098] . He submitted that case for the offences under Ss.354-A, 506 and 376 of IPC having been registered and the investigation having commenced, there is need for the petitioner to immediately undergo the medical examination, stipulated under S.53-A of the Code.

He submitted that this petition has been designed to delay the investigation of the case, which becomes apparent in not impleading the necessary party, i.e., respondent No.3, at the time of filing the petition and it is only after objection was raised, an application was filed belatedly for impleading. Learned advocate General placed reliance on the following decisions:

STATE OF BOMBAY Vs. KATHI KALU OGHAD, AIR 1961 SC 1808 [LQ/SC/1961/268] JAMSHED Vs. STATE OF U.P., 1976 CRL. L.J. 1680 ANANT KUMAR Vs. STATE OF A.P., 1977 CRL.L.J. 1797 THANIEL VICTOR Vs. STATE, 1991 CRL.L.J. 2416 NEERAJ SHARMA Vs. STATE OF U.P., 1993 CRL.L.J. 2266 VINEET NARAIN & OTHERS Vs. UNION OF INDIA & ANR., (1996) 2 SCC 199 [LQ/SC/1996/229] SELVI AND OTHERS Vs. STATE OF KARNATAKA, (2010) 7 SCC 263 [LQ/SC/2010/497] H.M. PRAKASH@ DALI Vs. THE STATE OF KARNATAKA, ILR 2004 KAR 2637 SRI HALAPPA @ HARTHAL HALAPPA Vs. STATE OF KARNATAKA, DEPUTY SUPERINTENDENT OF POLICE, BANGALORE, ILR 2010 KAR 4454 SRI GOPAL REDDY SHEELUM Vs. STATE OF KARNATAKA; CRL. P.NO.234/2011 CONNECTED CASES DISPOSED OF ON 16.07.2014- SHARDA Vs. DHARMPAL, 2003 AIR SCW 1950 POPULAR MUTHIAH Vs. STATE REP. BY INSPECTOR OF POLICE, (2006) 7 SCC 296 [LQ/SC/2006/548] : DIVINE RETREAT CENTRE Vs. STATE OF KERALA &ORS., (2008)3 SCC 542 [LQ/SC/1969/440] : SIVA VALLABHANENI Vs. STATE OF KARNATAKA & ANR, SLP (CRL.) NO.5844 OF 2014, decided on 03.09.2014:

10. Considered the arguments and perused written submissions filed by learned advocates appearing for the parties. I also perused the literature and the Judgments, on which reliance was placed by the learned advocates on both sides.

11. I shall first deal with the question relating to the S.53--A of Cr.P.C. constitutional validity of S.53

12. Articles 13, 14, clause (3) of 20 and 21 of the Constitution, which have a bearing on the issue, read as follows:

"13. Laws inconsistent with or in derogation of the fundamental rights.-

(1) ******

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires.-

(a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.

14. Equality before law.- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

20. Protection in respect of conviction for offences.-

(1) ******

(2)*******

(3) No person accused of any offence shall be compelled to be a witness against himself.

21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law."

13. Article 14 of the Constitution incorporates the concept of equality and equal protection of laws. It is a pledge of protection of equal laws, i.e., laws that operate alike on all persons under like circumstances.

14. Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. In order to avail the protection of Article 20(3), three conditions must be satisfied. Firstly, the person must be accused of an offence. Secondly, the element of compulsion to be a witness should be there and thirdly, it must be against himself. All the three ingredients must necessarily exist to extend the protection of Article 20(3).

15. Article 21 has compendious terms, "life" and "personal liberty". The Article has various facets and has received wide interpretation, particularly, in the matter of life and liberty of human beings. The Article has imposed a duty on the State to enforce the human rights of a citizen also providing for fair and impartial investigation against any person accused of commission of a cognizable offence. Article 21, in its broad application and in the context of criminal justice system, not only takes within its fold, enforcement of the rights of an accused but also the rights of the victim. The Article recognises the rights of both the accused and the victim, to a fair investigation and trial. A balance between the rights of the accused and the victim has to be struck, since the rights of both, to a fair investigation and trial can be recognised under Article 21, as the investigation into an offence after registration of FIR under S.154 of the Code is the "procedure established by law".

16. Laws enacted by Parliament or State Legislatures carry with them a presumption of Constitutionality. The same has been founded on the premise that the Legislature being a representative body of the people and accountable to the people is aware of their needs and acts in their best interest, within the confines of the Constitution.

17. The Courts approach, when there is challenge to the constitutional validity of the law, has been succinctly stated by the Apex Court, in SUBRAMANIAN SWAMY Vs. DIRECTOR, CENTRAL BUREAU OF INVESTIGATION AND ANOTHER, (2014) 8 SCC 682 [LQ/SC/2014/529] . The same reads as follows:

"49. Where there is challenge to the constitutional validity of a law enacted by the legislature, the Court must keep in view that there is always a presumption of constitutionality of an enactment, and a clear transgression of constitutional principles must be shown. The fundamental nature and importance of the legislative process needs to be recognized by the Court and due regard and deference must be accorded to the legislative process. Where the legislation is sought to be challenged as being unconstitutional and violative of Article 14 of the Constitution, the Court must remind itself to the principles relating to the applicability of Article 14 in relation to invalidation of legislation. The two dimensions of Article 14 in its application to legislation and rendering legislation invalid are now well recognised and these are (i) discrimination, based on an impermissible or invalid classification, and (ii) excessive delegation of powers; conferment of uncanalised and unguided powers on the executive, whether in the form of delegated legislation or by way of conferment of authority to pass administrative orders - if such conferment is without any guidance, control or checks, it is violative of Article 14 of the Constitution. The Court also needs to be mindful that a legislation does not become unconstitutional merely because there is another view or because another method may be considered to be as good or even more effective, like any issue of social, or even economic policy. It is well settled that the courts do not substitute their views on what the policy is."

(emphasis supplied)

18. In view of the presumption of constitutionality of statute and with regard to the burden of proof, Apex Court, in DHARMENDRA KIRTHAL VS. STATE OF UTTAR PRADESH AND ANOTHER, (2013) 8 SCC 368 [LQ/SC/2013/836] , has held as follows:

"23. At this juncture, we may profitably recapitulate that it is the duty of the Court to uphold the constitutional validity of a statute and that there is always the presumption in favour of the constitutionality of an enactment. In this context, we may fruitfully refer to the decision in Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41 [LQ/SC/1950/51] , wherein it has been ruled thus:

"10. .....it is the accepted doctrine of American courts, which I consider to be well founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles".

24. In Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar, AIR 1958 SC 538 [LQ/SC/1958/32 ;] ">AIR 1958 SC 538 [LQ/SC/1958/32 ;] [LQ/SC/1958/32 ;] , this Court had ruled that there is always a presumption in favour of the constitutionality of an enactment and the burden is on him who challenges the same to show that there has been a clear transgression of the constitutional principles and it is the duty of the Court to sustain that there is a presumption of constitutionality and in doing so, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of the legislation.

In State of Bihar v. Bihar Distillery Limited, (1997) 2 SCC 453 [LQ/SC/1996/2098] , the said principle was reiterated.

25. In Burrakur Coal Co. Ltd. v. Union of India, AIR 1961 SC 954 [LQ/SC/1961/58] , Mudholkar, J., speaking for the Constitution Bench, observed: (AIR p.963, para 25) "

25. .....Where the validity of a law made by a competent legislature is challenged in a court of law, that court is bound to presume in favour of its validity. Further, while considering the validity of the law the court will not consider itself restricted to the pleadings of the State and would be free to satisfy itself whether under any provision of the Constitution the law can be sustained."

26. In Pathumma v. State of Kerala, (1978) 2 SCC 1 [LQ/SC/1978/12] , the seven- Judge Bench has opined thus: (SCC p.8, para 5) "

5. .....The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. It must take into consideration the changing trends of economic thought, the temper of the times and the living aspirations and feelings of the people. This Court while acting as a sentinel on the qui vive to protect fundamental rights guaranteed to the citizens of the country must try to strike a just balance between the fundamental rights and the larger and broader interests of society, so that when such a right clashes with the larger interest of the country it must yield to the latter."

Again in the said judgment, it has been ruled thus: (Pathumma case, SCC p.9 para 6) "6. It is obvious that the legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weaker sections of the society and for the improvement of the lot of poor people. The Court will, therefore, interfere in this process only when the statute is clearly violative of the right conferred on the citizen under Part III of the Constitution or when the Act is beyond the legislative competence of the legislature or such other grounds."

27. The said principles have been reiterated by the majority in another Constitution Bench in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534 [LQ/SC/2005/1109] .

28. At this juncture, we think it condign to sit in a time machine and refer to the opinion expressed by Krishna Iyer, J., in STO v. Ajit Mills Limited, (1977) 4 SCC 98 [LQ/SC/1977/259 ;] ">(1977) 4 SCC 98 [LQ/SC/1977/259 ;] [LQ/SC/1977/259 ;] : (SCC p.103, para 2) "2. A prefatory caveat. When examining a legislation from the angle of its vires, the Court has to be resilient, not rigid, forward-looking, not static, liberal, not verbal - in interpreting the organic law of the nation. We must also remember the constitutional proposition enunciated by the U.S. Supreme Court in Munn v. Illinois, 24 L Ed 77,viz., that courts do not substitute their social and economic beliefs for the judgment of legislative bodies. Moreover, while trespasses will not be forgiven, a presumption of constitutionality must colour judicial construction. These factors, recognized by our Court, are essential to the modus vivendi between the judicial and legislative branches of the State, both working beneath the canopy of the Constitution."

29. We have referred to the aforesaid authorities for the sanguine reason that the submissions raised at the Bar are to be considered in the backdrop of the aforesaid "caveat". The modus vivendi which needs a purposive and constructive ratiocination while engaged in the visceration of the provision, which draws its strength and stimulus in its variations from the Constitution, we have to see whether the provision trespasses the quintessential characteristics of the Organic Law and, therefore, should not be allowed to stand."

(emphasis supplied)

19. After the adoption of the Penal Code, a number of amendments have been made to it. Amendment made by Act No.25 of 2005 deals with the category of offences, in respect of which the Law Commission of India made specific recommendations. The Parliament having debated the recommendations of the Law Commission of India, has inserted Explanation to S.53 and S.53-A to the Code. That unless a clear constitutional violation is established, it is impermissible to strike down S.53-A, merely on account of its likely abuse / misuse.

20. Section 53-A was attacked on the ground that the same promotes use of force by a police officer against a person arrested on a charge of committing an offence of rape or attempt to commit rape. What the section provides is to use such force as is "reasonably necessary" for that purpose. Thus, it is clear that there cannot be blackmail and / or torture of the person subjected to the examination by the registered medical practitioner. In my opinion, the mere fact that the section may be misused by a Police Officer, is not a reflection of the vires of the section. In this regard, the law was succinctly clarified by the Apex Court, in SUSHIL KUMAR SHARMA VS. UNION OF INDIA, (2005) 6 SCC 281 [LQ/SC/2005/696 ;] ">(2005) 6 SCC 281 [LQ/SC/2005/696 ;] [LQ/SC/2005/696 ;] . Therein, Apex Court was approached to declare S.498-A IPC to be unconstitutional and ultra vires or in the alternative to formulate guidelines, so that innocent persons are not victimized by unscrupulous persons. While examining the plea, it was held as follows:

"12. It is well settled that mere possibility of abuse of a provisions of law does not per se invalidate a legislation. It must be presumed, unless the contrary is proved, that administration and application of a particular law would be done "not with an evil eye and unequal hand". (see A. Thangal Kunju Musaliar v. M. Venkatichalam Potti, AIR (1956) SC 246 [LQ/SC/1955/119] .

13. In Budhan Choudhry v. State of Bihar, AIR (1955) SC 191 [LQ/SC/1954/169] a contention was raised that a provision of law may not be discriminatory but it may lend itself to abuse bringing about discrimination between the persons similarly situated. This Court repelled the contention holding that on the possibility of abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of Article 14 of the Constitution.

14. From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra vires or unconstitutional. In such cases, "action" and not the "section" may be vulnerable. If it is so, the court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved.

15. In Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536 [LQ/SC/1996/2243] , a Bench of nine Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty, (1962) 3 SCR 786 [LQ/SC/1961/321] this Court observed. (SCR p.825) "The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity."

It was said in State of Rajasthan v. Union of India, (1977) 3 SCC 592 [LQ/SC/1977/213] : (SCC p.658, para 147) "It must be remembered that merely because power may sometime be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief." (Also see: Commissioner, H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005. [LQ/SC/1954/70]

16. As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat, (2004) 6 SCC 672 [LQ/SC/2004/804] , Unique Butyle Tube Industries (P) Ltd. v. U.P. Financial Corporation, (2003) 2 SCC 455 [LQ/SC/2002/1388] and Padma Sundara Rao v. State of T.N., (2002) 3 SCC 533 [LQ/SC/2002/350] , while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary."

(emphasis supplied)

21. Taking note of the amendment made to the Code, by way of insertion of Explanation to Sections 53 and 53-A of the Code, to clarify the scope of medical examination, especially with regard to the extraction of bodily substances, while holding that the three impugned tests should be treated as testimonial acts for the purpose of invoking the right against the self-incrimination, the position was made clear by the Apex Court, in SELVIs case (supra), as follows:

"169. We are inclined towards the view that the results of the impugned tests should be treated as testimonial acts for the purpose of invoking the right against self-incrimination. Therefore, it would be prudent to state that the phrase "and such other tests" [which appears in the Explanation to Sections 53 CrPC] should be read so as to confine its meaning to include only those tests which involve the examination of physical evidence. In pursuance of this line of reasoning, we agree with the appellants contention about the applicability of the rule of "ejusdem generis". It should also be noted that the Explanation to Sections 53 CrPC does not enumerate certain other forms of medical examination that involve testimonial acts, such as psychiatric examination among others. This demonstrates that the amendment to this provision was informed by a rational distinction between the examination of physical substances and testimonial acts.

****** ****** ******

195. We must remember that the law does provide for some restrictions on "personal liberty" in the routine exercise of police powers. For instance, the CrPC incorporates an elaborate scheme prescribing the powers of arrest, detention, interrogation, search and seizure. A fundamental premise of the criminal justice system is that the police and the judiciary are empowered to exercise a reasonable degree of coercive powers. Hence, the provision that enables courts to order a person who is under arrest to undergo a medical examination also provides for the use of "force as is reasonably necessary" for this purpose. It is evident that the notion of "personal liberty" does not grant rights in the absolute sense and the validity of restrictions placed on the same needs to be evaluated on the basis of criterion such as "fairness, non- arbitrariness, and reasonableness".

****** ****** ******

220. In the present case, written submissions made on behalf of the respondents have tried to liken the compulsory administration of the impugned techniques with the DNA profiling technique. In light of this attempted analogy, we must stress that the DNA profiling technique has been expressly included among the various forms of medical examination in the amended Explanation to Sections 53 CrPC. It must also be clarified that a "DNA profile" is different from a DNA sample which can be obtained from bodily substances. A DNA profile is a record created on the basis of DNA samples made available to forensic experts. Creating and maintaining DNA profiles of offenders and suspects are useful practices since newly obtained DNA samples can be readily matched with existing profiles that are already in the possession of law-enforcement agencies. The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts.

221. It may also be recalled that the as per the majority decision in State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 [LQ/SC/1961/268] , the use of material samples such as fingerprints for the purpose of comparison and identification does not amount to a testimonial act for the purpose of Article 20(3). Hence, the taking and retention of DNA samples which are in the nature of physical evidence does not face constitutional hurdles in the Indian context. However, if the DNA profiling technique is further developed and used for testimonial purposes, then such uses in the future could face challenges in the judicial domain."

(emphasis supplied)

22. In the matter of right to privacy, culled out of the provisions of Article 21 and other provisions of the Constitution relating to Fundamental Rights, read with, Directive Principles of State Policy, Apex Court, in Mr. X Vs. HOSPITAL Z, (1998) 8 SCC 296 [LQ/SC/1998/975] , has held as follows:

"26. As one of the basic Human Rights, the right of privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of Crime or disorder or protection of health or morals or protection of rights and freedoms of others.

27. Right of privacy may, apart from contract, also arise out of a particular specific relationship which may be commercial, matrimonial, or even political. As already discussed above, doctor- patient relationship, though basically commercial, is, professionally, a matter of confidence and, therefore, doctors are morally and ethically bound to maintain confidentiality. In such a situation, public disclosure of even true private facts may amount to an invasion of the right of privacy which may sometimes lead to the clash of one persons "right to be let alone" with another persons right to be informed.

28. Disclosure of even true private facts has the tenancy to disturb a persons tranquility. It may generate many complexes in him and may even lead to psychological problems. He may, thereafter, have a disturbed life all through. In the face of these potentialities, and as already held by this Court in its various decisions referred to above, the right of privacy is an essential component of right to life envisaged by Article 21. The right, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others."

(emphasis supplied)

23. While holding that principles of secrecy is not an absolute principle, in KULDIP NAYAR Vs. UNION OF INDIA, (2006) 7 SCC 1 [LQ/SC/2006/740 ;] ">(2006) 7 SCC 1 [LQ/SC/2006/740 ;] [LQ/SC/2006/740 ;] , Apex Court has held as follows:

"463. The principle of secrecy is not an absolute principle. The legislative amendment cannot be struck down on the ground that a different or better view is possible. It is well settled that a challenge to legislation cannot be decided on the basis of there being another view which may be more reasonable or acceptable. A matter within the legislative competence of the legislature has to be left to the discretion and wisdom of the latter so long as it does not infringe any constitutional provision or violate the fundamental rights."

(emphasis supplied)

24. In the matter of recurring violence against women and the prevention of such crimes, Apex Court, in INDIAN WOMAN SAYS GANG-RAPED ON ORDERS OF VILLAGE COURT PUBLISHED IN BUSINESS AND FINANCIAL NEWS DATED 23-1-2014, IN RE,(2014) 4 SCC 786 [LQ/SC/2014/337] , has held as follows:

"10. Violence against women is a recurring crime across the globe and India is no exception in this regard. The case at hand is the epitome of aggression against a woman and it is shocking that even with rapid modernization such crime persists in our society. Keeping in view this dreadful increase in crime against women, the Code of Criminal Procedure has been specifically amended by recent amendment dated 03.02.2013 in order to advance the safeguards for women in such circumstances which are as under:-

"154. Information in cognizable cases.-- (1) * * * * Provided that if the information is given by the woman against whom an offence under Section 326-A, Section 326-B, Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 376, Section 376-A, Section 376-B, Section 376-C, Section 45 of 1860, Section 376-D, Section 376-E, or Section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:

Provided further that-

(a) in the event that the person against whom an offence under Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 376, Section 376-A, Section 376-B, Section 376-C, Section 376-D, Section 376-E, or Section 509 of the Indian Penal Code is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such persons choice, in the presence of an interpreter or a special educator, as the case may be;

(2) - (3)

161. Examination of witnesses by police.-

(1) -

(3) * * * *

Provided further that the statement of a woman against whom an offence under Section 354, Section 354-A, Section 354- B, Section 354-C, Section 354-D, Section 376, Section 376-A, Section 376-B, Section 376-C, Section 376-D, Section 376-E, or Section 509 of the Indian Penal Code is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.

* * *

164. Recording of confessions and statements.--

(1) - (5) * * * *

5-A. (a) In cases punishable under Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, sub-Section (1) or sub-Section (2) of Section 376, Section 376-A, Section 376- B, Section 376-C, Section 376-D, Section 376-E, or Section 509 of the Indian Penal Code, the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police:

164- A. Medical examination of the victim of rape.-

(1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence.

(2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely--

(i) the name and address of the woman and of the person by whom she was brought;

(ii) the age of the woman;

(iii) the description of material taken from the person of the woman for DNA profiling;

(iv) marks of injury, if any, on the person of the woman;

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail,

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The report shall specifically record that the consent of the woman or of the person competent, to give such consent on her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the examination shall also be noted in the report.

(6) The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

(7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.

Explanation.- For the purposes of this section, examination and registered medical practitioner shall have the same meanings as in Section 53.

11. The courts and the police officials are required to be vigilant in upholding these rights of the victims of crime as the effective implementation of these provisions lies in their hands. In fact, the recurrence of such crimes has been taken note of by this Court in few instances and seriously condemned in the ensuing manner."

(emphasis supplied)

25. The Code permits a registered medical practitioner to use modern and scientific techniques including DNA profiling and other tests, which he thinks necessary for the examination of a person accused of rape or attempt to commit rape, in order to assist forensic investigation.

26. In DHARAM DEO YADAV Vs. STATE OF UTTAR PRADESH, (2014) 5 SCC 509 [LQ/SC/2014/399] , with regard to the meaning and importance of DNA test, Apex Court, has held as follows:

"36. The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made-up of a double standard structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines. The most important role of DNA profile is in the identification, such as an individual and his blood relations such as mother, father, brother, and so on. Successful identification of skeleton remains can also be performed by DNA profiling. DNA usually can be obtained from any biological material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory. Close relatives have more genes in common than individuals and various procedures have been proposed for dealing with a possibility that true source of forensic DNA is of close relative."

(emphasis supplied)

27. The tremendous impact of DNA profile, on forensic investigation, in ANIL ALIAS ANTHONY ARIKSWAMY JOSEPH Vs. STATE OF MAHARASHTRA, (2014) 4 SCC 69 [LQ/SC/2014/186] , Apex Court, has held as follows:

"18. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA, profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with the DNA profile of the suspect, it can generally be concluded that both the samples have the same biological origin. DNA profile is valid and reliable, but variance in a particular result depends on the quality control and quality procedure in the laboratory."

(emphasis supplied)

28. In STATE OF GUJARAT VS. KISHANBHAI AND OTHERS, (2014) 5 SCC 108 [LQ/SC/2014/24] , with regard to the need for DNA profile by the investigating agency, on account of the advancement in scientific investigation, Apex Court, has held as follows:

"12.7.5. There has now been a great advancement in scientific investigation on the instant aspect of the matter. The investigating agency ought to have sought DNA profiling of the blood samples, which would have given a clear picture whether or not the blood of the victim Gomi was, in fact on the clothes of the accused-respondent Kishanbhai. This scientific investigation would have unquestionably determined whether or not the accused-respondent was linked with the crime."

(emphasis supplied)

29. The essence of police investigation is skillful inquiry and collection of material evidence in a manner by which the potential and culpable person is not forewarned.

The inquiry and investigation into an offence is the domain of the police. If the potential culpable person is made known in advance, as to the nature of examination that would be conducted, in terms of Section 53-A of the Code by the Registered Medical Practitioner, nothing material remains for the Police Officer to collect the material for further investigation and submission of the final report.

Based on the material collected during the course of investigation and the material taken from the person of the accused, the DNA profiling can be done by the Medical Practitioner. Thus, the contention advanced, that not making known in the notice vide Annexure - S, the nature of test itself, would show arbitrariness, does not command acceptance.

30. In DHARAM DEO YADAV (supra), Apex Court, while emphasizing the necessity of promoting scientific evidence also to detect and prove crimes over and above the other evidence, has observed as follows:

"30. The criminal justice system is this country is at crossroads. Many a times, reliable, trustworthy, credible witnesses to the crime seldom come forward to depose before the court and even the hardened criminals get away from the clutches of law. Even the reliable witnesses for the prosecution turn hostile due to intimidation, fear and host of other reasons. The investigating agency has, therefore, to look for other ways and means to improve the quality of investigation, which can only be through the collection of scientific evidence. In this age of science, we have to build legal foundations that are sound in science as well as in law. Practices and principles that served in the past, now people think, must give way to innovative and creative methods, if we want to save our criminal justice system. Emerging new types of crimes and their level of sophistication, the traditional methods and tools have become outdated, hence the necessity to strengthen the forensic science for crime detection. Oral evidence depends on several facts, like power of observation, humiliation, external influence, forgetfulness etc., whereas forensic evidence is free from those infirmities. Judiciary should also be equipped to understand and deal with such scientific materials. Constant interaction of Judges with scientists, engineers would promote and widen their knowledge to deal with such scientific evidence and to effectively deal with criminal cases based on scientific evidence. We are not advocating that, in all cases, the scientific evidence is the sure test, but only emphasizing the necessity of promoting scientific evidence also to detect and prove crimes over and above the other evidence.

31. Scientific evidence encompasses the so-called hard science, such as physics, chemistry, mathematics, biology and soft science, such as economics, psychology and sociology. Opinions are gathered from persons with scientific, technical or other specialized knowledge, whose skill, experience, training or education may assist the Court to understand the evidence or determine the fact in issue. Many a times, the Court has to deal with circumstantial evidence and scientific and technical evidence often plays a pivotal role......"

(emphasis supplied)

31. In KRISHAN KUMAR MALIK Vs. STATE OF HARYANA, (2011) 7 SCC 130 [LQ/SC/2011/818] , taking note of incorporation of Section 53-A in the Code, Apex Court, has observed as follows:

"44. Now, after the incorporation of Section 53-A in the Criminal Procedure Code w.e.f. 23-6-2006, brought to our notice by the learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in Cr.P.C. the prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences."

(emphasis supplied)

32. In SHARDA Vs. DHARMPAL, (2003) 4 SCC 493 [LQ/SC/2003/414] , Apex Court, having outlined the law relating to, right to privacy in India, by taking notice of certain laws enacted by the Indian Parliament, where the accused may be subjected to certain medical or other tests, has observed as follows:

"62. By way of example, we may refer to Sections 185, 202, 203, 204 of the Motor Vehicles Act, Sections 53 and 54 of the Code of Criminal Procedure and Section 3 of the Identification of Prisoners Act, 1920. Reference in this connection may also be made to Sections 269 and 270 of the Indian Penal Code. Constitutionality of these laws, if challenge is thrown, may be upheld."

(emphasis supplied)

33. In SARWAN SINGH LAMBA Vs. UNION OF INDIA, (1995) 4 SCC 546 [LQ/SC/1995/671] , in the context of Article 141 - Obiter - binding effect, it was held that "Normally even an obiter dictum is expected to be obeyed and followed." In ORIENTAL INSURANCE CO. LTD. Vs. MEENA VARIYAL, (2007) 5 SCC 428 [LQ/SC/2007/437] , with regard to the effect of obiter dictum, it was held that "an obiter dictum of the Apex Court may be binding only on the High Courts in the absence of a direct pronouncement on that question elsewhere by the Apex Court." Learned Senior Advocates for the petitioner, did not bring to the notice of this Court, any direct pronouncement of the Apex Court or any other High Court, rendered on the Constitutional validity of S.53-A of the Code.

34. It is clear from para 224 of the SELVIs case, that, ordinary exercise of police powers contemplate restraints of a physical nature such as extraction of bodily substances and use of reasonable force for subjecting a person to a medical examination. Such an exercise does not fall foul of Clause (3) of Article 20 nor violate Article 21 of the Constitution.

35. Section 53-A of the Code does not infringe any constitutional provision. It cannot be found to be violative of fundamental rights in part III of the Constitution. In the circumstances, Section 53-A of the Code cannot be struck down as unconstitutional.

36. Now, I deal with the question relating to the legality or otherwise of the impugned Police Notice, as at Annexure -S.

37. Learned Senior Advocates for the petitioner contended that there being no reasonable grounds and with a view to cause damage to the dignity of the petitioner, the impugned notice was served. They submitted that the second respondent has exercised the power in breach of Section 53-A of the Code, putting the personal liberty of the petitioner in jeopardy. It was contended that in the absence of specification of the test/s, the reasonableness in the matter of issuance of Annexure- S cannot be tested. They submitted that there is abuse of power and process by the second respondent and the impugned notice being not bona fide and/or on reasonable grounds, the same is liable to be quashed.

38. Learned Advocate General, on the other hand, contended that the investigation into an offence being within the domain of the Police and investigation in respect of crime in question having commenced and certain materials having become available during the course of investigation and there being reasonable grounds for believing that an examination of the person of the petitioner will afford evidence as to the commission of offence of rape, notice vide Annexure - S was served on the petitioner. He contended that the action of the second respondent in the matter of serving of the said notice, being in conformity with Section 53-A, interference in the matter of investigation of the crime by the Police is not permissible. He submitted that this petition is motivated to delay the investigation of the crime by the Police. He further submitted that the petitioner is not acting in terms of the conditions in the order enlarging him on bail, which stipulate that he shall extend co-operation in the matter of investigation by the police. Learned Advocate General submitted that there being no breach of any statutory provision by the Investigating Authority, interference in the matter of investigation is not permissible.

39. Section 2(h) of the Code defines investigation, to include, all the proceedings under the Code for collection of evidence conducted by the Police Officer or by any person (other than the Magistrate) who is authorized by a Magistrate in this behalf. Section 156 of the Code enables any Police officer in charge of the Police Station to investigate a cognizable offence. The inquiry and investigation into an offence is the domain of the police.

The aim of the investigation is search for truth and bring the offender to book. The essence of Police investigation is skilful inquiry and collection of material evidence, by which, truth can be ascertained and the offender may be brought to book.

40. In H.N.RISHBUD AND ANOTHER Vs. STATE OF DELHI, AIR 1955 SC 196 [LQ/SC/1954/179] , Apex Court, has explained that investigation generally consists of the following steps:

(i) Proceeding to the spot;

(ii) Ascertaining the facts and circumstances of the case;

(iii) Discovery and arrest of the suspected offender;

(iv) Collection of evidence relating to the commission of the offence, which may consists of examination of;

(a) various persons (including the accused) and reduction of statement into writing, (b) searching of the places and seizure of things considered necessary for the investigation and to be produced at the time of trial;

(v) Formation of the opinion as to whether on the materials collected, there is truth and to place the accused before the Magistrate for trial, if so, to take necessary steps for the same for filing charge sheet under Section 173 of Cr.P.C.

41. In STATE OF BIHAR AND ANOTHER Vs. J.A.C.SALDANHA AND OTHERS, 1980 (1) SCC 554 [LQ/SC/1979/450] , with regard to power of investigation into a cognizable offence, contained in the Code, Apex Court, has held as follows:-

"25. There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This has been recognised way back in King Emperor v. Khwaja Nazir Ahmad, AIR 1994 PC 18, where the Privy Council observed as under:

In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Courts functions begin when a charge is preferred before it, and not until then".

(emphasis supplied)

42. In MANOHAR LAL SHARMA VS. PRINCIPAL SECRETARY AND OTHERS, 2014(2) SCC 532, with regard to the role of the police in the matter of investigation of an offence in the criminal justice system, Apex Court, has held as follows:

"24. In the criminal justice system the investigation of an offence is the domain of the police. The power to investigate into the cognizable offences by the police officer is ordinarily not impinged by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpose. The courts ordinarily do not interfere in the matters of investigation by police, particularly, when the facts and circumstances do not indicate that the investigating officer is not functioning bona fide. In very exceptional cases, however, where the Court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in jeopardy by illegal and improper use of the power or there is abuse of the investigatory power and process by the police officer or the investigation by the police is found to be not bona fide or the investigation is tainted with animosity, the Court may intervene to protect the personal and/or property rights of the citizens.

25. Lord Denning in his work "The Due Process of Law", has described the role of the police thus:

"In safeguarding our freedoms, the police play vital role. Society for its defence needs a well-led, well-trained and well-disciplined force or police whom it can trust; and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice.

The police, of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a mans house without authority. They must not use more force than the occasion warrants."

26. One of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to book."

(emphasis supplied)

43. During the course of hearing of this petition, the Investigating Officer was directed to produce the record, which made him to believe that an examination, as contemplated under Section 53-A of the Code is necessary.

The Investigating Officer made available to the Court, the relevant record. It was found that during the course of investigation, certain materials have been collected from the alleged victim and the same are required to be matched with the material taken from the person of the accused for the purpose of DNA profiling. Thus, the notice as at Annexure S, has not been issued with any animosity or to put the personal liberty of the petitioner and/or the property of the petitioner in jeopardy. I am satisfied that there is no improper use of the investigatory power and process by the Investigating Officer. With the aim of searching the truth, notice at Annexure S has been served on the petitioner. Hence, no interference with Annexure - S is called for.

In view of the foregoing, this petition being devoid of merit, is dismissed, with no order as to costs.

Consequently, I.As. 2 and 3 of 2014, do not survive for consideration.