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The law of criminal procedure is complementary to criminal law and it creates certain provisions for the detection of crime, arrest of suspected persons and collection of evidence. Sections 4[1] and 5[2] of Cr PC and Constitution of India make it sufficiently clear that the Cr PC is flexible enough to adopt the special circumstances, needs and conditions. Similar is the situation with the forensic evidence and there are various Sections statutorily recognising the importance of forensic testing under Cr PC.

Section 53 of Cr PC authorises a police officer to get the assistance of a medical practitioner for having the accused medically examined in order to facilitate effective investigation. Section 53 is a landmark addition in the statute book giving recognition to collection of bodily substances. Section 53A of the Cr PC provides examination of the accused of rape by medical practitioner, Section 54 provides examination of  arrested person and Section 164A provides medical examination of the victim of rape. These Sections will be discussed in detail as under.

Powers of Police in Collection of Forensic Samples during investigation

The investigating officers have various powers to collect forensic samples from victims and suspected persons. The normal rule is that police officer collects necessary material for forensic analysis and hands over it to forensic laboratories. Hence the role of investigating officer starts from the very beginning after the commission of crime. The collection of biological material primarily depends upon the investigating authorities and the courts have least role at this stage. A research conducted by Joseph L. Pearson[3] reveals that there is no guarantee that all the physical evidence collected by investigating officers will be examined by forensic labs. According to his research the biological evidence remains in the custody of an investigating officer until he requests that it be examined.[4] The investigating officers have to decide what material to collect and investigating officers generally collect that evidence which has a tendency to incriminate the accused to a criminal charge. Section 53 of the Cr PC provides some scope to the police officers to examine the accused by medical practitioner at the request of police officer. Section 53A of the Cr PC provides examination of the accused of rape by medical practitioner , Section 54 provides examination of  arrested person and Section 164A provides medical examination of the victim of rape. These Sections will be discussed in detail as under:

(i) Medical Examination of the Accused at the request of Police and Collection of  Forensic Material

Section 53 of Cr PC authorises a police officer to get the assistance of a medical practitioner for having the accused medically examined in order to facilitate effective investigation. Section 53 is a landmark addition in the statute book giving recognition to collection of bodily substances for DNA testing. This Section contemplates that a medical examination can be conducted at the request of the police officer not below the rank of Sub Inspector when he believes that such examination of the arrested person will afford evidence as to the commission of the offence. However this Section does not prohibit superior officers of the police or the court from exercising abovementioned powers if it is necessary for the ends of justice.[5] An accused person can be medically examined even without his consent. The female person can be medically examined under the supervision of a female medical practitioner only.

 Section 53 of Cr PC reads as follows:

53. Examination of accused by medical practitioner at the request of police officer.-

(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence,  and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

Explanation[6]:-  In this section and in sections 53A and 54 :-

(a) "examination" shall include the examination of blood, blood-stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail 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 recognized 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.

From the plain reading of abovementioned Section, it is clear that full power is given to the investigating agencies to cause the accused to be examined by the medical practitioner and the Section is not restricted to any particular test that has to be done by the medical practitioner.[7] The medical examination of the accused is not limited to external examination of the body; it is permissible to examine the internal organs of the body.[8] The extraction of blood for medical examination or DNA profiling under Section 53 of the Cr PC cannot be said to be not permissible only because some pain has been caused to the accused person.[9] The controversy has been settled with the amendment of Cr PC in 2005 by an amended explanation attached to this Section. Medical examination includes now examination of blood, blood stains, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the adoption of new sophisticated scientific techniques and such other tests as the nature of offence committed so requires or the registered medical practitioner thinks necessary in a case.

This Section clearly reveals that all positive methods and necessary tests are included within the ambit of Section 53 of Cr PC. Medical examination conducted under Section 53 is a proceeding and therefore it is a part of an investigation as defined in Section 2(h),[10] the police officers can medically examine an accused person even after framing of the charge by the court by exercising their powers of further investigation under Section 173 (8).[11] The true import of Sub Section (8) of Section 173 was considered by the Supreme Court in the case of Ram Lal Narang v. State (Delhi Administration).[12] In that case Supreme Court had observed that further investigation could not be ruled out merely because the court had taken cognizance of the case. It was further observed that defective investigation coming to the light during the course of trial might be cured by further investigation if circumstances were permitting it.

The practice, convenience and preponderance of authority demands reinvestigations upon discovery of new facts. Although the Magistrate has taken the cognizance of the case under Section 173 of Cr PC, the power of police to further investigate the case is not exhausted and the investigating officer by seeking formal permission of the court can conduct further investigation.[13]In this view although Section 53 of the Cr PC refers only to examination of the accused by medical practitioner at the request of police officer, there is no reason to deny the courts for the purpose of doing justice in criminal cases by issuing a direction to the police officer to collect DNA samples from the accused for the purpose of further investigation under Section 173 (8) of Cr PC. It is worthwhile to consider the observations of Allahabad High Court in the case of Jamshed v. State of U.P[15]in the context of conducting medical examinations under Section 53 as follows:

“it is true that Section 53 refers only to medical examination of the accused on the request of a police officer, but if such a power is given to a police officer, the court should have a wider power for the purposes of doing justice in criminal cases.”

The Supreme Court of India in the case of Selvi v. State of Karnataka[16] observed the admissibility of scientific investigations with special reference to Section 53 and 53A at great length and discussed the value of DNA profiling in connection with criminal jurisprudence as follows:

“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, 53-A and 54 of the Criminal Procedure Code. 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.”

It has been held in the case of State of Maharashtra v. Dayanaba Bhikoba Dagade[17]that a Magistrate has no authority under Section 53 to pass an order allowing a medical practitioner to extract blood of the accused because investigation is a task of police and such duty must be performed by them alone. In the case of Neeraj Sharma v. Slate of U.P[[18]]the High Court of Allahabad has opined that taking of hair sample comes within the ambit of medical examination of the accused and a Magistrate or a Court trying the case has powers to direct such examination or sample of hair, blood, nails etc. where there is reasonable ground to believe that such examination will afford evidence as to commission of an offence. The court further held that such an examination is not in violation of the constitutional provision of Article 20 (3) and that a person cannot be said to have been compelled “to be a witness” against himself if he is required to undergo medical examination under Section 53 of Cr PC. It has been further held that the medical examination under Section 53 deals only in respect of a person on charge of committing an offence. However, even if an accused person has been released on bail he is still notionally in the custody of the court through the surety and hence his medical examination can be validly carried on under this section of the Cr PC.[19] Another question of legality of force for taking bodily substances was considered by High Court of Andhra Pradesh in the case of Ananth Kumar Naik v. State of Andhra Pradesh.[20] The Court observed that Section 53 of Cr PC provides for use of such force as is reasonably necessary for making such examination. Therefore, whatever discomfort may be caused when samples of blood and semen are taken from an arrested person, it will be justified under the provision of Section 53 of Cr PC.

The DNA profiling has been expressly included among various forms of medical examinations in the amended explanation to Sections 53, 53A and 54 of Cr PC. In Abhay Singh v. State of U.P[21]Justice Barkat Ali Zaidi with regard to possible scientific interrogation methods has held as follows:

“The discovery of truth is the desideratum of investigation, and all efforts have to be made to find out the real culprit, because one guilty person, who escapes, is the hope of one million. Courts have, therefore, to adopt a helpful attitude in all efforts, made by the prosecution for discovery of the truth.”

The scientific methods can be helpful in finding out the real culprit of the crime it should be used in dissemination of justice and courts should also help the investigating officers to conduct scientific investigations. It is also well settled now that biological samples of the accused i.e. blood, nails, urine, sputum, hair can be taken for DNA examination during investigation even if the accused has resisted for the same. Taking of DNA specimens for medical examination under the protective eye of law is not violative of Article 20 (3) of the Constitution.[20] Furthermore, during investigation or in the process of obtaining information, i.e., collection of DNA samples, if any constitutional right of the accused is violated, investigating agencies are not prohibited from taking DNA samples under the protective eye of law. Hence constitutional rights violations cannot be a ground to refuse a person for DNA samples.

(ii) Medical Examination of a Person Accused of Rape and Role of Police

Section 53A has been added by the Code of Criminal Procedure (Amendment Act), 2005 (25 of 2005). Section 53A of Cr PC deals with the medical examination of a person accused of rape by medical practitioner. 

Section 53A of Cr PC reads as under:

 “(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 kilometres 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.”

Before this Section there were no specific law providing the details of medical examination i.e. whether evidence of injuries, blood, semen, urine, saliva, buccal swabs, stains, trace evidence or DNA evidence was required to be collected etc. The explanation attached to this Section now clearly demarcates the nature and scope of medical examination. Law recognises the need for an immediate medical examination of the person accused of rape. By this it is clear that medical examination should be conducted without any delay and a "reasoned" report should be prepared recording the following particulars:

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.

Section 53A of Cr PC standardised the requirements of medical examination of a person accused of rape by the 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 kilometres from the place where the offence has been committed or by any other registered medical practitioner acting on the request of a police officer not below the rank of a sub inspector.

According to Section 53A of Cr PC once a person is arrested on a charge of committing an offence of rape; the offender should be subjected to medical examination under this Section. The medical examiner is duty bound to take material from the concerned person for DNA profile.[22] In the case of Krishan Kumar Malik v. State of Haryana[23]  the Hon'ble Supreme Court has held that the provisions of Section 53A Cr PC are mandatory in nature.

In the case of Halappa v. State of Karnataka[24] the investigating agencies were investigating the case of rape against the accused person and during the course of investigation certain articles were seized. The complainant was also subjected to medical examination; the vaginal swab, vaginal smear, urethral swab and taft of pubic hair were collected and they were sent for forensic examination. Therefore, the investigating officers wanted to take samples of blood from accused regarding which the accused resisted on the following grounds:

1. The application submitted by the complainant and police was not maintainable because samples for DNA could not be taken without making a strong prima facie case against the accused person.

2. Asking for such samples under Section 53A was nothing but an intrusion into the privacy of accused.

3. It was totally premature stage to ask for the samples of the blood, pubic hair etc. and the DNA samples could not be collected until the trial of the case was over and unless the cogent material evidence was tendered by the complainant before the court.

4. There were chances of misusing the samples for the purpose of implicating the accused to the offence of rape under Section 376 of the Indian Penal Code, 1860.

Section 53A of the Cr PC casts a duty upon the investigating agencies to examine a person arrested on the charge of committing rape; where there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence. In that case the accused was not consenting for taking of his blood samples during his examination by a medical practitioner on the ground that it would falsely implicate him into a rape case. The trial court had held that merely under the guise of apprehension, the accused could not escape from subjecting himself to medical examination when the facts and circumstances of the case required himself for medical examination.

The trial court further observed that the investigating officer can collect several important materials during investigation under Section 53A. In that case the investigating officer had found some stains on the clothes worn by the accused and victim at the time of alleged incident. The court had further observed that the material available on record was to be examined and compared by the investigating officer with that of the samples of the accused; otherwise the materials collected during investigation would be of no use and the efforts made so far by the investigating agency would turn to be a futile attempt.

The whole burden of collecting the materials in connection with the alleged crime is upon the investigating agency.[25] The samples of blood and other bodily substances are always required by the investigating agencies to prove as to whether the material collected during investigation is related to accused or victim, or whether the accused is responsible for commission of a specific offence.[26] The trial court has held that it is between the investigating officer and the registered medical practitioner working in the unit to decide whether such examination is essential to collect evidence in respect of the offence of rape.

 Trial court further held that in that case since the accused had refused to give consent for taking of his blood samples etc. the trial court could form an opinion that the facts and circumstances of the case were compelling the investigating officer to use such force as the nature of the offence committed so required. The court further added that under the facts and circumstances of that case it could not be said that the accused was being compelled for submitting his blood samples and hence it was not violative of Article 20(3) of the Constitution of India. The trial court had also held that it was very appropriate and deserving case to give such a direction to the accused.

The trial court in that case had also relied on the decision in the case of H.M. Prakash @ Dali v. The State of Karnataka[27] and the court clearly held that criminal court can make a direction for a blood test of the accused under Section 53A of Cr PC depending upon the facts and circumstances of the case to find out the guilt or innocence of the accused and the said direction was not violative of fundamental rights guaranteed under the Constitution. The trial court further stated in that case that the investigation of that case was still under process, the investigating officer could collect certain material touching to the material aspects involved in the case and having regard to the facts and circumstances of that case and keeping in view the concepts of fair trial and investigation of that case, the trial court felt that it was just and necessary for the court to make an order directing the accused to subject himself to the examination as sought for by the investigating officer.

The trial court in that case has rightly observed that scientific tests are just and necessary for proving the guilt as well as innocence of the accused person and mere apprehensions on the basis of surmises in the mind of the accused cannot find a place in the criminal justice system.[28] Therefore, the trial court allowed the application filed by the investigating officer and permitted the investigating officer to take the blood samples of the accused person for DNA test. The investigating officer was also permitted to take samples of pubic hairs and voice samples.

After feeling aggrieved by the findings recorded by the trial court, the accused moved the requisition petition before the High Court of Karnataka against the said order for allowing investigating officers to collect samples of blood for DNA. The learned counsel for the petitioner invited the attention of Karnataka High Court to Section 53A of the Cr PC. He also relied on the Supreme Court rulings[29] in support of his contentions and submitted that the accused could not be compelled to give his blood samples and consent of the accused was necessary. The Karnataka High Court had held in that case that the cases referred in support of the petitioner for denial of submission for DNA material were all paternity dispute cases and since the accused was involved in the offence of rape under Section 376 of Indian Penal Code; therefore Gautam Kundu's ruling would not be applicable to the facts and circumstances of the abovementioned case.

The High Court further observed the scope of Section 53A and held that Section 53A was introduced by the legislature to overcome the difficulty to detect the serious offence of rape. The court further stated that drawing of the blood sample for the purpose of civil proceedings without the consent of the party might not be desirable but drawing of the blood sample for detection of the offence of rape wherein the investigating agency has to establish its case beyond reasonable doubt, should not be termed as violative of Article 20(3) of the Constitution. The Court considered the offence of rape as a very serious offence and felt the need to be dealt the same with a heavy hand of law. The High Court thereafter dismissed the criminal petition filed by the accused and ordered him to submit himself for medical examination under Section 53A of Cr PC.

1. Adhikari, jyotirmoy, DNA Technology in Administration of Justice, (Lexis Nexis Butterworths, New Delhi,1st edn., 2007). 2. Alan, G. Atherly, Jack R. Girton, et.al., The Science of Genetics (Standard College Publishers, New York, 1999). 3. aliadine Chris & Horace R. Drew, Understanding DNA, (London Academic Press, London, 1992). 4. Clive, Walker & Keir Starmer, Miscarriages of Justice – A Review of Justice in Error (Blackstone Press Ltd., London, 6th edn., 1999). 5. Cross & Tapper, Evidence (Butterworths, London, 8th edn., 1995). 6. Dogra, T.D., Rudra A, Lyon’s Medical Jurisprudence and Toxicology, (Delhi Law House, New Delhi, 11th edn., 2011). 7. Farley, M.A., Harrington, JJ., Forensic DNA Technology (Lewis Publishers Inc., Michigan, 1991). 8. Field, Expert Evidence (R.G. Sagar for Law Publishers India Pvt. Ltd., New Delhi, 3rd edn.,1997). 9. Gupta, R.L., Law Relating to Identification and Expert Opinion (Eastern Book Company, New Delhi, 5th edn., 1990). 10. Gupta, Sarla, Dr. Aggarwal, DNA Test in Criminal and Paternity Disputes, (Premier Publishing Co., Allahabad, 2014). 11. Helen, Reece, Law and Science (Oxford University Press, London, 1998).

1. Section 4 of the Code of Criminal Procedure, 1973 (2 of 1974) provides that all offences shall be investigated and tried in consonance with the provisions of this Code. Although there are many offences which are tried, inquired and investigated under some special statutory enactments and will be triable under the procedure prescribed therein. Section 4 of the Code reads as under:
“4. Trial of offences under the Indian Penal Code and other laws:- (1) All offences under the Indian Penal Code (45 of 1860 ) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
2. All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.”
Where the Code or any statute makes no provision for investigation and trial of criminal offences; courts and tribunals can deal this those offences under Cr PC.
2. Section 5 of the Code of Criminal Procedure, 1973 (2 of 1974) reads as under:
“5. Saving:- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.”
Section 5 of Cr PC provides procedure for trial of all criminal cases except in a situation where any special form of procedure is prescribed by any special or local law. Whenever there is any special enactment for investigation and trial of criminal cases the provisions of that Act will apply in suppression of the provisions of Cr PC.
3. Joseph L Peterson, “Ethical issues in the Collection, Examination, and the Use of Physical Evidence” Jour of Forensic Sci Society 35 (1986).
4. Ibid.
5. Anil A. Lokhande v. State of Maharashtra, 1981 Cri LJ 125 (SC).
6. Explanation substituted by the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005).
7. Solaimuthu v. State rep. by Inspector of Police and Selvamani, 2005 Cri LJ 31 (Mad).
8. Supra note 6.
9. Jamshed v. State of Uttar Pradesh, 1976 Cri LJ 1680 (All).
10. Section 2(h) defines investigation as “Investigation includes all proceedings under this Code for the collection of evidence conducted by police officer or by any person other than Magistrate who is authorised by a Magistrate in this behalf.”
11. Supra note 6.
12. AIR 1979 SC 1791.
13. Thogorani alias K. Damyanti v. State of Orissa and Ors, 2004 Cri LJ 4003 (Ori).
14. Supra note 6 at 1.
15. (2010) 7 SCC 263.
16. 1979 Cri LJ 277 (Bom)
17. 1993 Cri LJ 2266 (All).
18. Ibid.
19. 1977 Cri LJ 1797 (AP).
20. 2009 Cri LJ 2189 (All).
21. Rohit Shekhar v. Narayan Dutt Tiwari, AIR 2012 Del 151.
22. Richpal Kharra v. State of Rajasthan, 2013(3) RCR (Cri) 549.
23. 2011 (7) SCC 130.
24. AIR 2010 Kar 934.
25. Ibid.
26. Ibid.
27. AIR 2004 Kar 1485.
28. Supra note 25.
29. In that case the petitioner relied on the contentions observed by the Supreme Court in Sharda v. Dharampal, AIR 2003 SC 3450, and Gautam Kundu v. State of West Bengal, AIR 1993 SC 2295.
30. The Code of Criminal Procedure, 1973 (2 of 1974). Section 53A (3).
31. Id., Section 53A (5).