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

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(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  

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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  

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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  

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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  

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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.

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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.

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(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  

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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  

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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  

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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  

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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  

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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  

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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

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