Uttarakhand High Court
Pankaj Kumar vs State Of Uttarakhand And Another on 30 July, 2026
UKHC010201102018 HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application U/s 482 of Cr.P.C No.1982 of 2018 Pankaj Kumar --Applicant Versus State of Uttarakhand and Another --Respondents ---------------------------------------------------------------------- Presence:- Mr. Nagesh Aggarwal, learned counsel for the applicant. Mr. Siddhartha Bisht, learned AGA for the State. Mr. S. K. Shandilya, learned counsel for the respondent no.2. ---------------------------------------------------------------------- Hon'ble Siddhartha Sah, J.
By means of the present Criminal
Miscellaneous Application under Section 482 of the
Cr.P.C. the applicant has sought quashing of the order
dated 19.11.2018 passed by the court of learned IVth
Additional Sessions Judge, Haridwar on application No.
99B/2 filed by the prosecution in Sessions Trial No. 152
of 2009, ‘State vs. Pankaj’ pertaining to in Case Crime
No. 208 of 2008 under Section 302 and 201 of the IPC,
Police Station Pathri, District Haridwar.
2. Facts of the case for the adjudication of the
present Criminal Miscellaneous Application are being
narrated in brief hereunder:
As per the prosecution case, complainant Smt.
Urmila Singh lodged a missing report in Police Station
Pathri, Haridwar stating therein that her son Arjun, aged
about 18 years, had gone to the field for getting grass for
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is still missing and despite search operations, he could
not be found and traced. As such, the missing report was
lodged on 26.11.2008. The FIR was registered as Case
Crime No. 07 of 2008 on 26.11.2008 at Police Station
Pathri, District Haridwar. Thereafter on 27.11.2008,
another Tehrir was given by the brother of the deceased
that his brother was kidnapped by Virendra S/o Lallu
Ram.
3. On 01.12.2008, police arrested the applicant
on the statement of Manoj and Jagta which were
recorded on 30.11.2008. Body of deceased Arjun was
recovered from sugarcane field and few hairs were alleged
to have been recovered from his hand. Investigating
Officer filed an application before the court of Judicial
Magistrate, Haridwar seeking permission for the Forensic
Science Laboratory examination of the alleged recovered
hair in the applicant’s fist/hand. The said application
was rejected by the Judicial Magistrate, Haridwar vide
order dated 21.02.2009.
4. The investigation continued and after
culmination of the investigation, the Investigating Officer
filed charge sheet against the accused/applicant under
Sections 302 and 201 of the IPC. On the basis of the
aforesaid charge sheet, case was registered as Sessions
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Trial No. 152 of 2009, State vs. Pankaj. Charges were
framed under Section 302 and 201 of the IPC against the
applicant on 16.01.2010 and the matter entered trial.
5. During trial, the prosecution examined eleven
witnesses and ultimately the prosecution evidence came
to an end on 27.01.2017. Thereafter the applicant
produced five witnesses in defence and the evidence of
defence witnesses was completed on 07.12.2017 and the
matter was fixed for final arguments.
6. After completion of evidence and after
advancing arguments in part, the prosecution moved two
applications on 24.02.2018, one for recalling the PW-10
i.e. Virendra Singh Negi in order to examine him on GD
No.21 dated 01.12.2008, and another application for
forensic examination of the recovered hairs from the
deceased’s hand with the DNA of hairs of the accused’s
head, which were registered as application paper nos.
99B/1 and 99B/2 respectively. The applicant filed the
objection against the said application No.99B/2 and
contended that the prosecution had also prayed for
forensic examination of these hairs during the
investigation, which was already rejected by the learned
court, and the application has been moved to delay and
prolong the trial.
7. The trial court vide order dated 19.11.2018
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allowed the application paper No. 99B/2 moved by the
prosecution on the ground that the case is based on
circumstantial evidence, and one of the circumstances
was that few hairs were found in the deceased’s hand,
which necessitated to be matched with the DNA of the
accused, and this could only explain whether the
applicant was involved or not, and if the examination is
not conducted, the question of hairs belong to whom
would remain unanswered.
8. Assailing the impugned order dated
19.11.2018 passed by the IVth Additional Sessions
Judge, Haridwar, learned counsel for the applicant would
submit that Criminal Court has no power to review/recall
its order. It has been contended on behalf of the
applicant that the trial court while passing the impugned
order dated 19.11.2018 reviewed the order of the Judicial
Magistrate of rejecting the application of forensic
examination, and held that the ground taken by the then
Judicial Magistrate of rejecting the application for
forensic examination was not legally correct. Reliance has
been placed on the judgment of the Hon’ble Apex Court
in the case of Sunita Jain vs. Pawan Kumar Jain
reported in (2008) 2 SCC 705, wherein it has been
specifically held in Para 33 that it is also well settled that
power of review is not an inherent power and must be
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conferred on a court by a specific or express provision to
that effect. (Vide Patel Narshi Thakershi & Ors. v.
Pradyumansinghji Arjunsinghji). No power of review has
been conferred by the Code on a criminal court and it
cannot review an order passed or judgment pronounced.
9. The next ground contended on behalf of the
applicant is that the envelope/parcel of the alleged hairs
is unsealed. It is contended that the trial court while
allowing paper application no.99B/2 failed to appreciate
that the alleged parcel/envelope of the hairs recovered
from the deceased’s hand has been opened before PW-8
Nathi Ram, which was exhibited as Exhibit-4. This
opened parcel was never resealed, which is evident from
the supplementary affidavit filed by the State
Government on 22.12.2023. The said affidavit was filed
on the basis of report dated 20.12.2023 by Station House
Officer, Police Station Pathri, annexed as Annexure No.
SCA-1. The letter dated 20.12.2023 of SHO of P.S. Pathri,
District Haridwar addressed to Joint Director Law,
Advocate General Office clearly shows that sealed
envelope of recovered hair from deceased Arjun’s hand
was opened on 27.01.2015 before PW-8 Nathi Ram.
Thereafter, it was submitted to the Malkhana without
seal survey mohar, and moreover GD record room has
also informed that GD of 2015 has already been
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destroyed. In this backdrop, the possibilities of
manipulation and manhandling with the unsealed
envelope cannot be ruled out. Reliance has been placed
on the judgment of the Hon’ble Apex Court in the case of
Amarjit Singh alias Babbu vs. State of Punjab
reported in 1993 Vol.0 Supreme SC 707, and has
relied upon Para 7 thereof wherein it has been held that
non-sealing of the revolver at the spot is a serious
infirmity because the possibility of tampering with the
weapon cannot be ruled out. Another judgment relied
upon on behalf of the applicant is judgment rendered by
the High Court of Gujarat in the case of Dhaneshbhai
Dwarkadas Sachaniya vs. State of Gujarat, reported in
2017 0 Supreme (Guj) 22, wherein in Para 24 it has
been held that “The reading of the testimonies of the
Investigating Officer together with the Bank Official
indicate that the notes were kept in open plastic bags
without affixing any seal or signatures. The notes were
not even packed. This would completely destroy the link
between the seized currency notes and those which were
sent for forensic analysis. The seizure and the
subsequent exercise is extremely doubtful and raises
suspicion.”
10. It is next contended on behalf of the applicant
that the learned trial court permitted the further
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investigation without any new material brought by the
prosecution on record at a belated stage. The trial court
failed to appreciate that on the same piece of evidence
collected during trial on which basis charge sheet has
been filed, no further investigation is permissible. After
commencement of trial, especially at the stage of
arguments and opening of defence evidence, application
for further investigation without collecting new material
is an afterthought and biased.
11. In the present case, prosecution in its counter
affidavit dated 23.01.2019, categorically stated in
paragraph 15 that the trial court has exercised power
under Section 311 of the Cr.P.C. Similarly, the private
respondent reiterated the same version in his counter
affidavit. It is settled law that a DNA test cannot be
permitted while exercising the power under Section 311
of the Cr.P.C. Reliance has been placed on a judgment of
Calcutta High Court in the case of “Anandamay Bag vs.
State of West Bengal and Another,” reported in 2007
SCC OnLine Cal 249, and paragraph 8 and 16 have
been referred to. It has been observed in para no.8-
“Section 311 of the Cr. PC cannot be used in this case
where evidence was closed and entire defence was
disclosed and earlier there was no attempt by the
prosecution to hold the DNA test. If such a prayer is
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kind of further investigation in favour of the prosecution”,
and in paragraph no.16- “After closer of prosecution
evidence, examination of accused under Section 313 of
Cr. PC and after discloser of entire defence case
prosecution prayer to hold DNA test of the victim, her
male child and accused cannot be allowed to establish
the offence under Section 376 of IPC”.
12. The next submission on behalf of the applicant
is that the fresh investigation on the same piece of
evidence collected during the trial and kept in Malkhana
without having any seal is not safe and secure, and it
would prejudice the right of the applicant/accused,
especially when GD of 2015 has admittedly been
destroyed. The probabilities of tampering with the
unsealed envelope cannot be denied, which is also a
mock, defective investigation and would prejudice the
applicant/accused. Reliance has been placed on the
judgment of the Calcutta High Court in the case of
“Sanjay Biswas vs. State of West Bengal and Another,”
reported in 2024 Vol. 0 Supreme(Cal) 47, wherein in
paragraph 24, it has been held that-“The prejudice
caused to the petitioner/accused was automatic and
irreversible once the trial court allowed creation of new
evidence after the stage of investigation for filling of the
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13. Per contra, Mr. Shashikant Shandilya, learned
counsel for the respondent no.2 would submit that
taking a voice sample, fingerprint, handwriting or DNA is
not testimonial compulsion, but merely physical or
material evidence; therefore, Article 20(3) is not attracted
and this law has been discussed by the Hon’ble Apex
Court in the case of “Rahul Agarwal vs. State of West
Bengal and Another,” reported in 2025 SCC OnLine
SC 2219, and in the case of “Ritesh Sinha vs. State of
Uttar Pradesh and Another,” reported in 2019 (8) SCC
1. The aforesaid two decisions of the Hon’ble Apex Court
allowed the physical sampling just to be compared with
the material recovered during investigation. Learned
counsel for the respondent no. 2 further submits that
order under challenge does not suffer from any illegality
and any subsequent development after filing the present
petition regarding non-sealing of hairs, if it has been
done in the trial court, relates to subject matter of trial
court, and also requires an investigation to the matter
regarding negligent act of responsible authority for non-
sealing of hairs and tampering of crucial evidence, which
was necessary to the decision of the case. Learned
counsel for the respondent no.2 has referred to the
judgment of Ritesh Sinha case (Supra) and contends
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that the aforesaid case of the Hon’ble Supreme Court
permits the sampling on identical principle adopted by
the Hon’ble Apex Court in the case of “State of Bombay
vs. Kathi Kalu Oghad,” reported in AIR 1961 SC 1808,
to permit furnishing of handwriting, signature, and finger
impression. The said sampling is similar to DNA
sampling, as now possible by reason of advance
technology.
14. It is also submitted on behalf of the respondent
no.2 that mere sampling of DNA would not incriminate
the person as such. It would have to be compared with
the material discovered on investigation, which alone
could incriminate the person giving the sample, which
would not fall under a testimonial compulsion, thus
would not fall under rule against the self-incrimination. It
is also submitted on behalf of the respondent no.2 that
the evidence collected during police investigation, if not
examined by the expert who can test the veracity of the
hair of the assailant, the present accused would not be
able to obtain the complete justice; thus to test the
veracity of the hair is necessary and indispensable in the
interest of justice, and the learned trial court has rightly
passed an order directing the SHO, Police Station
Haridwar to get the examination of the hair which are
available with the prosecution case and alleged hair of
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accused. There is no abuse of process by passing such
lawful order under the statutory power by the learned
trial court, so that rightly the trial court judge has
allowed the application moved by the prosecution before
the delivery of the judgment.
15. It is further submitted on behalf of the
respondent no.2 that the prosecution wants to verify the
DNA of hair which has been recovered by the
Investigating Officer from the fist/hand of the deceased of
this case, and to deny the DNA examination is denial of
justice against the prosecution. Here in this case,
accused has been charged by the Investigating Officer as
the perpetrator of the crime, hence the matching of the
hair of the accused is necessary in the interest of justice.
In such DNA test for matching the hair with the hair of
the accused, it cannot be said that it is prejudicial
against the legitimate interest of the accused and
violation of his fundamental right at all, because of the
reason the hair recovered by Investigating Officer during
course of investigation are clinching piece of evidence
against the assailant. It is further submitted that
moreover it is never the case of the applicant that police
took his hairs forcefully during investigation, though on
the other side, the prosecution had a case since
beginning that the said hairs were recovered from the fist
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of the deceased at the time of recovery of the dead body.
In such view of the facts and circumstances, the learned
counsel for the respondent no.2 would urge that the
application is devoid of merits and is liable to be
dismissed.
16. Learned AGA for the State, Mr. Siddhartha
Bisht, would by and large deny all the averments as are
being made and the submissions advanced on behalf of
the learned counsel for the applicant. But however, he
would very fairly submit that in the supplementary
affidavit dated 21.12.2023 filed on behalf of the State by
Mr. Naveen Singh Chauhan, who at the relevant time was
posted as Sub-Inspector/In-charge, Police Station Pathri,
District Haridwar, in Para 3, has stated as “That in
compliance of order passed by this Hon’ble Court, the
deponent most respectfully stated that the envelope was
opened during evidence before the learned Trial Court,
but same was not re-sealed and was deposited in
Malkhana of police station Laksar, which fact can be
verified from the report of the deponent dated
21.12.2023.” Thus, on the basis of the said affidavit filed
by Mr. Naveen Singh Chauhan, the learned AGA would
submit that the envelope containing the hairs, which was
opened during the statements of PW-8 Nathi Ram, it was
not subsequently re-sealed.
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17. Having heard the learned counsel for the
parties at length and having gone through the record,
what falls for consideration of the Court is -:
(i) Whether at the fag end of the trial, when both the
prosecution as well as the defence have already led
their evidence and their witnesses have already
been examined, whether at this stage, it would be
proper on the part of the Trial Court to have allowed
the application for sending the hair for forensic
examination?
(ii) Whether in view of the fact that the envelope
containing the hair was admittedly not re-sealed
after it was opened after the recording of statements
of PW-8 Nathi Ram, would it be proper to allow the
DNA examination of such alleged hair whose safe
custody cannot be vouched?
18. On behalf of Respondent No.2, learned counsel
Mr. Shashikant Shandilya would state that the stage at
which the order has been passed by the Trial Court
cannot be a belated stage, inasmuch as under Section
311 Cr.P.C., the Trial Court is well within its jurisdiction
to summon any witness or recall any witness, and even
allow for any new evidence in order to arrive at the truth.
Thus, so far as the first question before the court is
concerned, by virtue of Section 311 of the Cr.P.C., Trial
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Court has extensive powers to pass suitable orders to
meet the exigencies as occurring before a Trial Court.
19. Now, the only question that falls for
determination of this Court is whether, in the facts and
circumstances of the present case, where the envelope
containing the alleged hair, which is alleged to be
recovered from the fist of the deceased, and for which the
Trial Court has passed orders being sent for forensic
examination, whether after the said envelope having been
opened and not being re-sealed, whether it would be
proper on behalf of the Trial Court to have allowed the
said application no.99B/2 filed on behalf of the
prosecution.
20. Emphasis has been laid by the learned counsel
for the applicant, Mr. Nagesh Aggarwal, that the Trial
Court failed to appreciate that the hair allegedly
recovered from the fist of the deceased’s hand, after being
opened during the testimony of PW-8 Nathi Ram, was
never re-sealed, and this fact is not disputed, in the
supplementary affidavit filed on behalf of the State on
21.12.2023. He would submit that the said envelope
containing the recovered hair was submitted in the
Malkhana without seal survey mohar and hence,
possibility of manipulation and manhandling with the
unsealed envelope cannot be denied, and it cannot be
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vouched whether it was the same hair which was there in
the said envelope.
21. Mr. Nagesh Aggarwal, learned counsel for the
applicant has relied upon judgment of the Hon’ble Apex
Court in the case of Amarjeet Singh alias Babbu (Supra)
and has stressed in that case, the non-sealing of the
revolver was found to be a serious infirmity because
tampering with the weapon cannot be ruled out.
22 In reply to the said submission, on behalf of
the learned counsel for the applicant, Mr. Shashikant
Shandilya, learned counsel for respondent no.2, would
submit that except the supplementary affidavit filed on
behalf of the State dated 21.12.2023, there is nothing on
record to indicate that the envelope containing the hair
was never re-sealed, and he would thus submit that
merely on the said affidavit, it cannot be presumed that
the envelope which was opened during the evidence
before the Trial Court was not re-sealed.
23. In this regard, a report was summoned from
the Presiding Officer of the court of IVth Additional
District and Sessions Judge, District Haridwar and vide
letter dated 01.07.2026, it has been apprised by the
Incharge IVth Additional District and Sessions Judge,
District Haridwar, that from the perusal of the record, it
is not clear whether after recording of the statements of
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PW-8 Nathi Ram on 27.01.2018, the case material was
sealed or not before sending the case material to Thana
Pathri.
24. In view of the rival submissions made by
learned counsel for the parties, since the Sub-Inspector/
In-charge of the Police Station Pathri, Mr. Naveen Singh
Chauhan, by his affidavit dated 21.12.2023, having
stated that the envelope which was opened during
evidence before the Trial Court was not re-sealed and it
was deposited in the Malkhana of Police Station Pathri,
hence, on the basis of the said affidavit, it would be
deemed that the envelope which was opened during
evidence before the Trial Court was not re-sealed.
25. Learned AGA for the State would very fairly
submit that since it is clear that the case material was
not re-sealed after it was opened in the court, hence the
chain of custody would not be there.
26. In view of the aforesaid facts and
circumstances, and particularly in view of the fact that
the admitted position being that the envelope containing
the hair, which the prosecution was desirous of sending
for FSL examination, was not re-sealed, hence, the chain
of custody having been snapped, the safe custody of the
alleged case material, in this case being the hair alleged
to be found in the fist of the deceased, cannot be vouched
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and in the said facts and circumstances and particularly
in view of the judgment of the Hon’ble Apex Court in the
case of Amarjeet Singh alias Babbu (Supra), this Court
finds that the order dated 19.11.2018, passed by the IVth
Additional Sessions Judge, Haridwar, of allowing the
application of the prosecution bearing Paper No. 99B/2
of sending the hair found in the fist of the deceased Arjun
for DNA examination to the Forensic Science Laboratory,
cannot be sustained, and the same is hereby quashed.
The present Criminal Misc. Application filed under
Section 482 Cr.P.C. is accordingly allowed.
27. Interim order, if any, stands vacated.
(Siddhartha Sah, J.)
30.07.2026
JKJ/
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