IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 868 of 2008()
1. THACHERY MOHAMMED BASHEER,
... Petitioner
Vs
1. MOODAPURA RASHEED KHAN (MINOR),
... Respondent
2. MELECHETTA HAMZAKOYA,
3. KUNHIKOYA.K.,
For Petitioner :SRI.RAFFEEKH.K
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :15/09/2008
O R D E R
R.BASANT, J.
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Crl.M.C.No.868 of 2008
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Dated this the 15th day of September 2008
O R D E R
Against the petitioner, the first respondent represented by
his mother and guardian, had filed a claim under Section 125
Cr.P.C. It was asserted that there was a valid marriage and the
first respondent was born in such matrimony. But the mother of
the claimant was allegedly divorced even before the claimant
was born. The petitioner denied marriage and paternity. In
these circumstances, the claimant/minor filed an application for
getting the DNA test conducted so that the controversy could be
authentically resolved. That application, though opposed, was
allowed by the learned Magistrate by the impugned order.
2. The petitioner claims to be aggrieved by the
impugned order and has come to this court to assail the
impugned order. It is contended that there is absolutely no
material to compel the petitioner to subject himself to a DNA
test. The allegations are totally incorrect and false. The
petitioner is not willing to undergo a DNA test in these
Crl.M.C.No.868/08 2
circumstances. It is prayed that the impugned order may in
these circumstances be set aside.
3. I have considered all the relevant submissions.
Obviously the petitioner is not mulcted with any liability to meet
the expenses of the DNA test. I have no hesitation to agree that
the DNA test which has been held to be authentic, would go a
long way to satisfactorily resolve the controversy. The direction
to undergo the DNA test, I am satisfied, does not result in any
failure or miscarriage of justice as to persuade this court to
invoke the extraordinary inherent jurisdiction under Section 482
Cr.P.C. Of course, it would have been better if the learned
Magistrate had waited for some time and had permitted the
parties to adduce evidence before disposing of the application to
get the DNA test conducted. Be that as it may, I am not
persuaded to agree that the impugned order suffers from any
vice which would justify or warrant invocation of the
extraordinary inherent jurisdiction under Section 482 Cr.P.C.
Any and every error or inadequacy in an order passed by a
subordinate court will not ipso facto persuade this court to
invoke the jurisdiction under Section 482 Cr.P.C. In the facts
Crl.M.C.No.868/08 3
and circumstances of this case, I am satisfied that the impugned
order does only serve the interests of justice as the controversy
can be authentically resolved. As rightly observed by the
learned Magistrate, a DNA test report may even be
advantageous and beneficial to the petitioner if truth is on his
side. In any view of the matter, I am not persuaded to agree that
the impugned order does warrant interference invoking the
jurisdiction under Section 482 Cr.P.C.
4. This Crl.M.C is accordingly dismissed.
(R.BASANT, JUDGE)
jsr
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Crl.M.C.No.868/08 5
R.BASANT, J.
CRL.M.C.No. of 2008
ORDER
09/07/2008