Holding

An accused has no right to be heard at the investigation stage; the court may order further investigation and the accused may contest the evidence only during trial.

Summary

The husband of a Canadian citizen murdered in Bombay filed a writ petition seeking that forensic DNA analysis of seized evidence be conducted in Canada, as such facilities were unavailable in India. The Bombay High Court directed the investigating agency to send the material to Canada for examination under Section 166A and Section 173(8) of the Cr.P.C. The accused appealed, contending that the High Court violated procedural requirements by not obtaining an application from the prosecution, not issuing a letter of request, and by denying them a hearing at the investigation stage. The Supreme Court held that an accused has no right to be heard during the investigation phase; the prosecution may direct further investigation and the accused can challenge the authenticity and admissibility of such evidence at trial. Consequently, the Court dismissed the appeals, affirming the High Court's order.

Issues considered

Whether an accused is entitled to a hearing before the court at the stage of further investigation under Section 166A/173(8) of the Cr.P.C.
Whether the High Court could direct forensic DNA analysis abroad without a prosecution application or a letter of request from a competent court.
Whether the evidentiary value of DNA material obtained abroad can be tested only at trial.

Legislation cited

Code of Criminal Procedure, 1973s. 166A, s. 173(8)

Subjects

forensic DNA analysisfurther investigationSection 166ASection 173(8)right to be heardaccused rightsevidentiary valuecross‑examinationcriminal procedure

Judgment

[2009] 8 S.C.R. 1004

A NARENDRA G. GOEL
v.
STATE OF MAHARASHTRA & ANR.
(Criminal Appeal No. 1058 of 2009)
MAY 08, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]

Code of Criminal Procedure, 1973: ss.166A, 173(8) - '-
C Further investigation - Mitochondria/ DNA analysis -
Canadian citizen murdered in Bombay - Her dead body taken
to Canada and genetic material were with the Canadian
Corner - Writ petition by husband praying for forensic
investigation of the articles relating to murder, in Canada as
o such facility was not available in India - High Court allowed ~ '
writ petition - On appeal by accused persons, held: No
interference called for - The accused have no right to be
heard at the stage of investigation - However they would get
full opportunity to cross-examine or controvert the
E admissibility or authenticity of material gathered in the course
of further investigation.

A writ petition was filed before the High Court by the ~
husband of the deceased praying for forensic
investigation in Canada, of the articles relating to the
F murder of his wife as there was no such facility available
in India. High Court directed to get the material collected
in the course of investigation, examined in Canada. These
appeals are filed by the accused persons against the
order of High Court.
G
Dismissing the appeals, the Court

HELD: 1. It is well settled that the accused has no
right to be heard at the stage of investigation. The
H 1004
NARENDRA G GOEL v. STATE OF MAHARASHTRA 1005
&ANR.

prosecution will however has to prove its case at the trial A
when the accused would have full opportunity to rebut/
question the validity and authenticity of the prosecution
case. The accused can certainly avail himself of an
1:>pportunity to cross examine and/or otherwise controvert
the authenticity, admissibility or legal significance of B
material evidence gathered in the course of further
investigations. Further in the 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 c
with the aid of CFS under Section 173(8) Cr.P.C. [Para 10]
[1009-E-F; 1010-A-B]

Sri Bhagwan Samardha Sreepada Vallabha Venkata
Vishwanandha Maharaj v. State of A.P. (1999) 5 SCC 740, D
relied on.

2. What is the evidentiary value can be tested during
trial. At this juncture it would not be proper to interfere in
the matter. The lady who was murdered in Bombay was
a Canadian citizen of the Indian origin. It was stated on E
behalf of the State that there was a confession by
accused persons on the basis of which recoveries were
made. ihe blood stained clothes of the accused (A1) and
the deceased were seized. Since the Canadian citizen
was murdered, the Canadian police was involved. Dead F
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. [Paras 11 and 12]
[1010-B-E] G
Case Law Reference:
(1999) s sec 140 relied on Para 10
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1058 of 2009. H
1006 SUPREME COLJRT REPORTS [2009] 8 S.C.R.

A From the Judgment & Order dated 28.09.2006 of the High
Court of Judicature at Bombay in Criminal Writ Petition No. t
1930 of 2006.

WITH
B SLP (Crl.) No. 3206 of 2p07.

L.N. Rao, Sidharth Luthra, K.T.S. Tulsi Altaf Ahmad, S.
Singh, Gaurav Kejriwal, Ashok M. Saroagi Sangeeta Kumar, )r "

Vijay Kumar and Ashwani Garg for the Appellant.
c Ashok Desai, U.U. Lalit, Meenakshi Arora, Suvrajyoti
Gupta, Mohit D. Ram, Ravindra Keshavrao Adsure, Sandhya

D
Goswami and B.K. Prasad for the Respondents.

The Judgment of the Court was delivered by
--
DR. ARIJIT PASAYA,·, 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 r@l~tipg
E 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 was also not a party before the High Court. Dr.
F 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 Petition No. 1930
of 2006 with the prayer that respondents 1 to 7 in the Writ
G 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
H .J-
NARENDRA G. GOEL v. STATE OF MAHARASHTRA1007
& ANR. [DR. ARIJIT PASAYAT, J.]

j approach the Government of Canada for seeking assistance A
frorl1 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
,•

Satyanarayan Goenka the appellant in the appeal relatable to
Special Leave (Crl.) No. 3206 of 2007 and Pradeep Parab B
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. c
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 D
are ready to assist the investigating team in their desired area
and 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 E
that the lrwe~tigating 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 F
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 G
analysis on the material seized by the police during the course
~ i
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
H
1008 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 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
B
such a report which will be part of medical and forensic
investi9ation which can be filed in the trial court under Section
173(8) of the Code. ,... .
6. The basic stand of the appellants is that the High Court
c 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 <-

D (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.
E
(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.
F
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
G jurisdiction of the Bombay High Court, consent order has been
obtained between the family members of the deceased and the t .._

prosecution keeping the accused persons completely away
from the proceeding though their rights are directed affected.

H 8. It is submitted that by the impugned order the
NARENDRA G. GOEL v. STATE OF MAHARASHTRA1009
& ANR. [DR. ARIJIT PASAYAT, J.]
j
lnve1stigating Officer has been authorized to remove important A
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 B
cov1:ired 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
contemplated under the provisions of law. It is submitted that
the required test can be conducted at Kolkata. c
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
D

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 E
police during the course of 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 F
however have to prove its case at the trial when the accused
will have full opportunity to rebuUquestion the validity and
authenticity of the prosecution case. In Sri Bhagwan Samardha
Sreepada Val/abha Venkata Vishwanandha Maharaj v. State
of A.P. [(1999) 5 SCC 740] this Court observed, "There is
G
,.... + nothing in Section 173(8) to suggest that the court is obliged
to h13ar the accused before any such direction is made. Casting
-~ of any such obligation on the court would only result in
encumbering the Court with the burden of searching for all the
potemtial accused to be afforded with the opportunity of being
H
1010 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 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
s High Court, it is apparent that the investiaating authorities would[
inevitably have conducted further investigation with the aid of 1

CFS under Section 173(8) of the Code. ).- •

11. We are of the view that what is the evidentiary value~
C can be tested during trial. At this juncture it would not be prope .
to interfere in the matter. It appears from the statement ti
learned counse. I for the State that the lady who was murdere~
in Bombay was a Canadian citizen of the Indian origin. It is
stated that there was a confession by accused persons on th
basis of which recoveries were made. The blood staine ·
D clothes of the accused (A 1) and the deceased were seized.

12. It is pointed out as noted above that the Canadian
citizen was murdered and therefore the Canadian police was
involved. Dead body was taken to Canada and the genetitj
E material were with the Canadian Coroner. Before th~
application by respondent No. 2 was filed there was a letter by'
the Coroner to the Police Commissioner. Whether there is
actually illegal recovery, since documents are there they are to
be proved. In that view of the matter we are not inclined t~
F interfere and it is for the court to d~cide whether the evidenc~
is admissible or otherwise. The appeals are according!~
1

-
dismissed.

D.G. Appeals dismissed.