Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1058 OF 2009
(Arising out of SLP (Crl.) No. 1880 of 2007)
Narendra G. Goel ....Appellant
Versus
State of Maharashtra & Anr. ....Respondents
CRIMINAL APPEAL NO. OF 2009
1
(Arising out of SLP (Crl.) No. 3206 of 2007)
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted in both the Special Leave Petitions.
2. Challenge in these appeals is to the judgment of a Division Bench of
the Bombay High Court. The appeal relating to Special Leave Petition
(Crl.) No. 1880 of 2007 has been filed by Narender Goel who was not a
party before the High Court while the Criminal Appeal relating to SLP(Crl.)
No. 3206 of 2007 has been filed by Pawankumar Satyanarayan Goenka who
2
was also not a party before the High Court. Dr. Sadankumar Goel, the
petitioner in Criminal Writ Petition No. 1930 of 2006 is the husband of Dr.
Asha Goel (hereinafter referred to as the ‘deceased’) who was found
murdered. Said Dr. Sadankumar Goel filed the Criminal Writ Peition No.
1930 of 2006 with the prayer that respondents 1 to 7 in the Writ Petition
should be directed to take appropriate steps under Section 166(A) of the
Code of Criminal Procedure, 1973 (in short the ‘Code’) in CPNA No. 6 of
2004 registered at DCB CID, Unit II Malabar Hill Police Station CR. No.93
of 2003, in so far as the forensic investigation is concerned and to approach
the Government of Canada for seeking assistance from appropriate agencies
of the said Government to investigate the offences in so far as they relate to
DNA testing of the articles recovered from the accused Pawankumar
3
Satyanarayan Goenka the appellant in the appeal relatable to Special Leave
(Crl.) No. 3206 of 2007 and Pradeep Parab during the investigation and of
the materials recovered from the Santro car seized during investigation
along with all other materials collected in the course of investigation
relevant for the purpose of such forensic and medical examination to
Canada as there is no such facility available in India.
3. Stand of Dr. Sadankumar was that for want of proper medical and
forensic investigation, material evidence would be lost to the prosecutor and
therefore at his request office of a Chief Coroner of the Province of Ontario
has written a letter to Commissioner of Police, Crawford Market, Mumbai
that they are ready to assist the investigating team in their desired area and
4
the office of the Chief Coroner for Ontario has performed a second autopsy
of the deceased at the family’s request and they have preserved genetic
material of the deceased which can be used to make a genetic comparison to
any samples that the Investigating Agencies in India wish to have tested.
4. The High Court after hearing noted that the reply reflects the concern
on the part of the office of the Chief Coroner for Ontario; the deceased was
a Canadian Citizen and a resident of Ontario. The High Court called upon
the investigating agency to file their short reply. In the reply filed it was
accepted that the facility for Mitochondrial DNA analysis is not available in
the Forensic Science Laboratory either in Kalina or at Kolkatta and if it is
the writ petitioner’s belief that carrying out such an analysis on the material
5
seized by the police during the course of investigation would bring to light
with unerring certainty the culpability of the concerned accused, it will not
only aid the investigation but also there cannot be any question of objection
to the helping hand offered by the writ petitioner to the investigating
agency. 5. The Court after considering the various submissions directed
the investigating agency to get the material collected in the course of
investigation examined in Canada. It noted that it will take sometime and
therefore the trial court would wait for such a report which will be part of
medical and forensic investigation which can be filed in the trial court under
Section 173(8) of the Code.
6
6. The basic stand of the appellants is that the High Court has not kept
in view the parameters of Section 166A of the Code. It is submitted that
some evidence which is already in existence but in a country outside India
can be collected. But for that purpose
1 application is required to be made by the prosecution
before the Competent Court of law i.e. the Court which is
seized of the matter; and
2 the application shall be for collecting the evidence and not
for creating the evidence.
7
(3) On such application being allowed, an appropriate
request by way of letter of authority from competent court of
law to the concerned court of law or authority where such
evidence is available has to be made.
7. It is the stand of the appellants that in the instant case neither the
application has been made by the prosecution nor any letter of request had
been issued by competent court of law. Though the Court of Session at
Sewree in Mumbai is seized of matter by avoiding the said court and by
invoking writ jurisdiction of the Bombay High Court, consent order has
been obtained between the family members of the deceased and the
8
prosecution keeping the accused persons completely away from the
proceeding though their rights are directed affected.
8. It is submitted that by the impugned order the Investigating Officer
has been authorized to remove important piece of evidence from Bombay,
take the same directly from the Office of the Chief Coroner of Ontario
Laboratory for Mitochondrial DNA test. There is no letter of request from
competent court to the concerned court or authority. The laboratory in
question cannot be considered to be authority covered under Article 12 of
the Constitution of India, 1950 (in short the ‘Constitution’) and in view
thereof it cannot be said that the matter had been submitted to the authority
9
contemplated under the provisions of law. It is submitted that the required
test can be conducted at Kolkata.
9. The stand of the respondent No.2 is that the attempt of the accused
person is to avoid detention of materials which would show the involvement
of the accused persons. The State Government in its affidavit before the
High Court has accepted that the facility of Mitochondrial DNA test is not
available in the Forensic Laboratory either in Kalina or Kolkata. The
investigating officer made similar statement. The FSL Kalina noted that the
material for extraction of DNA was an old or washed clothes. The
investigating officer therefore rightly stated that carrying out such an
analysis on the material seized by the police during the course of
10
investigation would bring to light with unerring certainty culpability of the
concerned accused.
10. It is well settled that the accused has no right to be heard at the stage
of investigation. The prosecution will however have to prove its case at the
trial when the accused will have full opportunity to rebut/question the
validity and authenticity of the prosecution case. In Sri Bhagwan Samardha
Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P.
[(1999) 5 SCC 740] this Court observed, “There is nothing in Section
173(8) to suggest that the court is obliged to hear the accused before any
such direction is made. Casting of any such obligation on the court would
11
only result in encumbering the Court with the burden of searching for all the
potential accused to be afforded with the opportunity of being heard.” The
accused can certainly avail himself of an opportunity to cross examine
and/or otherwise controvert the authenticity, admissibility or legal
significance of material evidence gathered in course of further
investigations. Further in light of the views expressed by the investigating
officer in his affidavit before the High Court, it is apparent that the
investigating authorities would inevitably have conducted further
investigation with the aid of CFS under Section 173(8) of the Code.
11. We are of the view that what is the evidentiary value can be tested
during trial. At this juncture it would not be proper to interfere in the
12
matter. It appears from the statement of learned counsel for the State that
the lady who was murdered in Bombay was a Canadian citizen of the Indian
origin. It is stated that there was a confession by accused persons on the
basis of which recoveries were made. The blood stained clothes of the
accused (A1) and the deceased were seized.
12. It is pointed out as noted above that the Canadian citizen was
murdered and therefore the Candian police was involved. Dead body was
taken to Canada and the genetic material were with the Canadian Coroner.
Before the application by respondent No. 2 was filed there was a letter by
the Coroner to the Police Commissioner. Whether there is actually illegal
13
recovery, since documents are there they are to be proved. In that view of
the matter we are not inclined to interfere and it is for the court to decide
whether the evidence is admissible or otherwise. The appeals are
accordingly dismissed.
....................................................J.
(Dr. ARIJIT PASAYAT)
……..............................................J.
(ASOK KUMAR GANGULY)
New Delhi;
May 08, 2009
14