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DNA Test Can Be Ordered In Deserving Cases, Not A Violation Of Article 20(3): Karnataka HC

  • The Karnataka HC has recently refused to quash a DNA report which proved him to be the biological father of a child born to a victim of rape.
  • In the instant case titled Malappa vs State of Karnataka, a complaint was filed by the victim in 2016, and the police registered a case against the petitioner under 376, 504, 506, and 417 of IPC and a chargesheet was later filed.
  • An application was made to the Court, seeking permission to draw the blood of the accused for the purpose of ascertaining whether he was the biological father of the child born to the victim, who was now dead. It was allowed and the FSL report later declared him to be the father of the infant.
  • The present petition was filed seeking to quash the order which subjected the petitioner to DNA test.
  • The Hon’ble Court observed that the order for the drawing of blood would only be in violation of the doctrine of self incrimination under 20(3) if the consent of the person has been obtained by any threat. But the same is not the case here as the learned trial court Judge had explained to the accused the full import of his consent, and the same has been videographed. There was no threat and the accused gave his consent voluntarily.
  • The Court also observed that although subjecting people to DNA tests should not be done as a routine, but in deserving cases, the same can be ordered and there is no law which bars the Court from ordering the same in order to ascertain the truth.
  • On the question of violation of Article 20(3), the Court has relied on the decision in State of Bombay vs. Kathi Kalu Oghad wherein it was held that if the self incriminatory information has been given by the accused without any threat or compulsion, the same will not be hit by the doctrine of self incrimination envisaged in Article 20(3).
  • The Court also took note of the fact that the investigating agencies have a very tedious job of ascertaining the truth, and it was due to this reason that Section 53A was enacted by the Parliament after which it became possible to medically examine the accused in an offence of rape and ascertain the truth which would otherwise be difficult to discover.

Joint Account Holder Who Is Not An Account Holder Will Not Be Prosecuted Under 138 NI Act: Telangana HC

  • The Telangana HC has recently held in the case of Kodam Danalakshmi vs. State of Telangana that a joint account holder who is not a signatory to a disputed cheque will not be liable to be prosecuted under Section 138 NI Act.
  • In the instant case, the petitioner moved the HC under section 482 CrPC to quash the criminal proceedings instituted against her under 138 NI Act. the cheque was drawn by her husband with whom she held a joint account. It was argued that she was not a signatory to the same and should not be held liable.
  • The Counsel for the prosecution had relied on the decision laid down in Alka Khandu Avhad vs. Amar Syamprasad Mishra and ors. AIR 2021 SC wherein it was held that a mere joint holder but not a signatory would not be liable to be prosecuted under 138 NI Act.
  • The Court, relying on the aforementioned ruling of the Hon’ble Apex Court, observed that section 138 does not talk about joint liability. In case of individual persons, the person other than the one who was actually a signatory to the cheque can never be prosecuted under 138 NI Act. He may be liable to pay the debt jointly, but such a person cannot be held liable under the above mentioned section unless he was a signatory to the cheque.
  • The Hon’ble HC also relied upon the decision in Mrs. Aparna A. Shah vs M/s Sheth Developers pvt. Ltd. and anr. AIR 2013 SC where it was held that under 138 NI Act it is only the drawer who can be proceeded against in a court of law.
  • The petition was therefore allowed and the proceedings against the petitioner, who was the wife of the drawer, were quashed.

District Court Can Appoint A Guardian Only For Minor’s Property, Not Person: Kerala HC

  • The Kerala HC has recently held in the case of K.S.Narayana Elayathu vs. Sandhya that the District Court can only appoint a guardian for a minor’s property, and the right to appoint a guardian for the minor’s person only rests with the Family Court under Section 7(1)(g) of the Family Court’s Act.
  • In the instant case, due to strained marital relationship, the wife who is the respondent in this case resided separately from her husband (appellant) with her minor daughter. The minor’s maternal grandmother executed a settlement deed of a property in favour of the minor.
  • The wife filed an application before the District Court for declaring her as the guardian of the person as well as property of the minor. The Court decided that when the custody of the minor’s property is in question, the jurisdiction resides with the District Court.
  • This was challenged by the husband. His contention was that the entire jurisdiction of the District Court in this matter has been taken over by the FAmily Court by virtue of Section 7(1)(g) of the Family Court’s Act, 1984.
  • The Hon’ble HC observed that it is a well settled fact that as regards appointing a guardian for the person of the minor, the jurisdiction of the district Court has been taken over by the Family Court by the virtue of the impugned section, but when the question involves appointment of guardian for the property of the minor, the Family Court has no jurisdiction as that dispute does not come under the explanation (g) to section 7(1).
  • Thus, the appeal was partially allowed.
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