Narayan Dutt Tiwari vs Rohit Shekhar and Another

A.K. Sikri, Acting Chief Justice

Cav. No. 772/2012

Since the respondents have entered appearance, caveat stands discharged.

CM 12740/2012

Allowed, subject to all just exceptions.

CM stands disposed off.

FAO(OS) 335/2012, CM 12739/2012 (stay)

By means of this appeal, the appellant questions the propriety and legality of orders dated 20th July, 2012 passed by the learned Single Judge in IA No. 10325/2012. In that application which was filed by the appellant herein, he had sought a protection that the DNA report received by the Court on 2nd July, 2012 be kept sealed and confidential till the conclusion of the entire trial. The learned Single Judge has dismissed the said application inter alia observing that orders dated 24th May, 2012 passed by the Supreme Court in SLP (Civil) No. 17622/2012 on which reliance was placed by the appellant, do not accord any such protection. Without narrating the events which have taken place, in detail, suffice is to state that the learned Single Judge had on earlier occasion in the said suit passed directions for obtaining the blood sample of the defendant No. 1/appellant for the purpose of DNA test. That order has since been executed after the matter was taken up to Supreme Court in the aforesaid SLP. The blood sample of the appellant was sent to the Centre for DNA Finger Print and Diagnostic (CDFD) at Hyderabad for analysis. The report from the said Centre has since been received and is filed in this Court in sealed cover. It is that report which the appellant does not want to be opened at this stage and had made a prayer that the same should be kept sealed and confidential "till the conclusion of the entire trial". In the first instance, as we read the aforesaid order dated 24th May, 2012 of the Supreme Court, we are also in agreement with the learned Single Judge that this order nowhere states that once the test of DNA profile is obtained from the CDFD, same shall be kept in sealed cover till the conclusion of the entire trial. The only mandate was to obtain the report of the analyst through a special messenger in a sealed cover by the officer of this Court. This DNA report, admittedly, is now a piece of evidence. The issues have been framed and evidence in the suit has started. Defendant No. 2 in the suit, who is the mother of the plaintiff, is under examination. In order to regulate the proceedings and curtail unnecessary cross-examination as well, it becomes imperative that the result of the said DNA is even known to the defendant No. 2.

Section 153B of the CPC reads as under:

153B. Place of trial to be deemed to be open Court.-

The place in which any Civil Court is held for the purpose of trying any suit shall be deemed to be an open Court, to which the public generally may have access so far as the same can conveniently contain them:

Provided that the presiding Judge may, if he thinks fit, order at any stage of any inquiry into or trial of any particular case, that the public generally or any particular person, shall not have access to, or be or remain in, the room or building used by Court.

As per the aforesaid provision, the place in which any civil court is held for the purpose of trying the suit is deemed to be an open court to which the public generally may have access. Proviso to this section gives discretion to the concerned Judge to order at any stage of any enquiry into or trial of any particular case in camera. Up to now, proceedings are held in the open court. Though in the application, there was a prayer to this effect, it appears that this prayer was not pressed before the learned Single Judge and that is the reason that it is neither taken note of nor considered in the impugned order. Even in this appeal preferred against that order, no such ground is urged or pressed before us.

We may also record that the purpose of obtaining the aforesaid DNA report was to cut short the controversy and to avoid unnecessary prolonged trial. If the evidence is not opened now, it may lead to unnecessary lengthy cross-examination of the witnesses which can otherwise be avoided and/or curtailed. We would also like to refer to Section 75 of the CPC which was amended vide Amendment Act of 1976 and has enabled the Court to issue commissions to hold a scientific, technical or expert investigation. The purpose of this amendment is to keep pace with scientific advancement in the matters of judicial adjudication and wherever possible, to avoid age old practices and procedures when new better methods are available. For all these reasons, we do not find any merit in this appeal and the same is accordingly dismissed.

At this stage, Mr. Mukul Gupta, learned senior counsel appearing for the appellant submits that the appellant has filed an application before the Supreme Court seeking clarification of the order dated 24th May, 2012 and, therefore, the order of the learned Single Judge be stayed and not executed till the Supreme Court provides the clarification. The question of staying the said order would have arisen only if we had found some substance in this appeal and were inclined to entertain the same. When we find that appeal is bereft of any merits, there is no question of granting any time to the appellant in this behalf. Though as aforesaid, we do not see any need to keep confidential the result of the comparative DNA testing of appellant and others particularly the respondent No. 1, but we are still of the opinion that the DNA profile of the appellant be kept confidential so as to be not accessible to others without permission of the Court.