C. Rajaram vs Jothi and R. Vivekanandan (Minor represented by Jothi)

C.T. Selvam, J.—The petitioner seeks a direction towards conduct of D.N.A. test for the purpose of establishing the paternity of a Child,

alleged to be his.

The petitioner and the first respondent married on 07.09.1995. The first respondent delivered a male child/second respondent on 18.05.1996.

The petitioner contends that on the very date of marriage, the first respondent informed of a relationship with another and of being in the family

way, and requested the petitioner not to have anything to do with her. Thereafter, the first respondent went to her parent�s house and did not

return and gave birth to a male child on 18.05.1996. The petitioner had obtained an order of divorce which had not been appealed against by the

first respondent. The first respondent had filed a petition for maintenance for herself and for the second respondent/minor child. The petitioner

moved a petition seeking the conduct of a D.N.A. test which was dismissed by the learned Judicial Magistrate No. 1, Tirupattur, where against the

petitioner filed a Criminal R.P. No. 3 of 2004 before the Principal Sessions Judge, Vellore, which also was dismissed by the said Court. In these

circumstances, the petitioner is before this Court.

The learned Counsel for the respondents strongly contested the submissions made by the learned Counsel for the petitioner and informed that

the petitioner had failed to pay maintenance even to the first respondent till date. He also submits that Section 397(3) Cr.P.C. would be a bar to a

second revision petition by the same petitioner.

I am of the considered view that Section 397(3) Cr.P.C. would not be a bar for exercise of powers u/s 482 Cr.P.C. in an appropriate case. In

Krishnan and another Vs. Krishnaveni and another, , the Supreme Court has held as follows:

It is seen that exercise of the revisional power by the High Court u/s 397 read with Section 401 is to call for the records of any inferior Criminal

Court and to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any

proceedings of such inferior Court and to pass appropriate orders. The Court of Session and the Magistrates are inferior Criminal Courts to the

High Court and Courts of Judicial Magistrate are inferior Criminal Courts to the Sessions Judge. Ordinarily, in the matter of exercise of power of

revision by any High Court, Section 397 and Section 401 are required to be read together. Section 397 gives powers to the High Court to call for

the records as also suo motu power u/s 401 to exercise the revisional power on the grounds mentioned therein, i.e., to examine the correctness,

legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court, and to

dispose of the revision in the manner indicated u/s 401 of the Code. The revisional power of the High Court merely conserves the power of the

High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that its subordinates Courts do not

exceed the jurisdiction or abuse the power vested in them under the Code or to prevent abuse of the process of the inferior Criminal Courts or to

prevent miscarriage of justice.

The object of Section 483 and the purpose behind conferring the revisional power u/s 397 read with Section 401, upon the High Court is to

invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to meet out justice. In

addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, High

Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power u/s 397(1).

However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not

correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct

irregularities/incorrectness committed by inferior Criminal Court in its juridical process or illegality of sentence or order.

The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and which is preserved

by the Code. The object of Section 397(3) is to put a bar on simultaneous revisional applications to the High Court and the Court of Sessions so

as to prevent unnecessary delay and multiplicity of proceedings. As seen, under Sub-Section (3) of Section 397, revisional jurisdiction can be

invoked by ""any person"" but the code has not defined the word ''person.'' However, u/s 11 of the I.P.C. ''person'' includes any Company or

Association or body of persons, whether incorporated or not. The word ''person'' would, therefore, include not only the natural person but also

juridical person in whatever form designated and whether incorporated or not. By implication, the State stands excluded from the purview of the

word ''person'' for the purpose of limiting its right to avail the revisional power of the High Court u/s 397(1) of the Code for the reason that the

State, being the prosecutor of the offender, is enjoined to conduct prosecution on behalf of the society and to take such remedial steps as to deems

proper. The object behind criminal law is to maintain law, public order, stability as also peace and progress in the society. Generally, private

complaints u/s 202 of the Code are laid in respect of non-cognizance offences or when it is found that police has failed to perform its duty under

Chapter XII of the Code or to report as mistake of fact. In view of the principle laid down in the maxim Ex debito Justitiae, i.e., in accordance with

the requirements of justice, the prohibition u/s 397(3) on revisional power given to the High Court would not apply when the State seeks revision

u/s 401. So the state is not prohibited to avail the revisional power of the High Court u/s 397(1) read with Section 401 of the Code.

Ordinarily, when revision has been barred by Section 397(3) of the Code a person-accused/complainant-cannot be allowed to take recourse

to the revision of the High Court u/s 397(1) or under inherent powers of the High Court u/s 482 of the Code since it may amount to circumvention

of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court as suo motu power u/s 401 and continuous

supervisory jurisdiction u/s 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice

or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or

sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave

miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved

with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional

power u/s 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of

procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal

and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the

witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justice can be ensured only with

expeditious trial is conducted.

Considering the facts and circumstances of the case, this Court is of the considered view that the conduct of D.N.A. test would set at rest the

issue between the parties. As held by the Hon''ble Apex Court in Krishnan and another Vs. Krishnaveni and another, D.N.A. tests are considered

conclusive in nature.

In the peculiar facts and circumstances of the present case, this Court finds that it is appropriate to direct the lower Court to take appropriate

steps for the conduct of D.N.A. test of both the petitioner as well as the respondents and obtain a report on the paternity of the second

respondent.