Indresh Kumar And Another vs Babita Devi And Others

Heard.

By way of the present application, the applicants have sought leave to appeal against the order dated 18th May, 2017 whereby OWP No.725/2017

has been allowed and an order passed against the applicants without hearing them.

In view thereof, we hereby grant leave to appeal to the applicants.

This application is allowed.

Heard.

Having regard to the fact that the scope of the instant appeal is within a narrow conspectus, with the consent of learned counsel for the parties, the

appeal itself is taken up for consideration.

The appellants have assailed the order dated 18th May, 2017 passed in OWP No.725/2017 whereby the learned Single Judge has accepted the

prayer made by the private respondent No.1 and directed the officer who is investigating the FIR No.97/2015 registered by the Police Station,

Kisthwar, under Sections 376/506 of the Ranbir Penal Code to get the DNA test of the accused conducted during the course of investigation. Such

DNA test of the accused has been directed in order to ascertain the paternity of the child who was alleged to be born out of the alleged offence of

rape.

It is noteworthy that the respondent No.1 herein is the complainant in the criminal case which has been registered by the police against the

appellants before us.

Several grounds have been raised by the appellants on the merits of the prayer made by the respondent No.1 and the subject matter of the

impugned order. However we have heard the parties only on the main ground pressed before us. It has been primarily contended on behalf of the

appellants that the impugned order has been passed without issuing notice to the appellants by the learned Single Judge. The submission is that the

impugned order was passed on 18th May, 2017 which was the very first date when the writ petition was listed. The appellants have submitted that

they were not even impleaded as party respondents in the writ petition.

The respondents have sought to justify the passing of the order on the ground that the direction was against the investigating officer. To say the

least, this submission has to be rejected in as much as the order certainly has vital consequences so far as the appellants are concerned.

Having regard to the nature of the prayer, the appellants are the parties vitally affected by the order and deserved to be impleaded in the writ

petition and given an opportunity to place such objections to the prayers made therein, as were legally permissible before the Court.

At this stage, learned counsel for the respondent No.1 submits that he has no objection if the order dated 18th May, 2017 is set aside and the matter

remanded for hearing afresh before the learned Single Judge.

We, accordingly, set aside the order dated 18th May, 2017 and remand OWP No.725/2017 for consideration afresh before the learned Single

Judge. The appellants shall be impleaded as respondents in the writ petition. Amended memo of parties be filed by respondent No.1 within five days.

It is directed that the learned Single Judge would accord a hearing to the appellants before making an order in OWP No.725/2017.

With the consent of learned counsel for the parties, it is directed that OWP No.725/2017 shall be listed before the learned Single Judge on 11th

February, 2020. Liberty to given to the appellants to file objections to the writ petition as they may deem fit and proper before the learned Single

Judge.

We make it clear that we have not expressed any opinion on the merits of the rival contentions and the learned Single Judge shall proceed in the

matter uninfluenced by any observations made hereinabove.

This appeal is allowed on the above terms.