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Bijaya Kumar Das v/s Biswajit Bhusan Swain & Another

    W.P. (C) Nos. 17454 & 20449 of 2012

    Decided On, 16 October 2015

    At, High Court of Orissa

    By, THE HONOURABLE MR. JUSTICE C.R. DASH

    For the Appearing Parties: M/s. Bibhuti B. Mishra, D. Sahu, P.M. Barik, M/s. L. Mishra, B.M. Kar, B.R. Sahu K.K. Jena, Advocates, Addl. Government Advocate.



Judgment Text

C.R. Dash, J.

1. As both these writ applications are between the same parties and involve common questions of fact and law, these were heard together and are disposed of by this common order.

2. In W.P.(C) No.17454 of 2012, order dated 24.07.2012 passed by the learned Civil Judge (Senior Division), 2nd Court, Cuttack-cum-Election Tribunal, Cuttack rejecting the petition filed by the present petitioner with prayer for a direction for blood test of the concerned parties to solve the paternity dispute of the petitioner’s alleged third child–Sanjay Kumar Das @ Prasanta Kumar das is impugned.

3. In W.P.(C) No.20449 of 2012, order dated 12.09.2012 under Annexure- 10 to the writ application on the

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petition filed by the petitioner vide Annexure- 7, rejecting the prayer of the petitioner to send the blood slides marked as exhibit to the Professor-cum-H.O.D., FMT Department, S.C.B. Medical College & Hospital, Cuttack or any other Laboratory for examination and to submit the blood group test report of the slides, is impugned.

4. The present petitioner and O.P. No.1 contested for the post of Panchayat Samiti members of Chhanipur Grama Panchayat under Salipur Panchayat Samiti. The petitioner was declared elected as Panchayat Samiti member as per the Election Result dated 22.02.2012. The present O.P. No.1 as petitioner, filed Election Misc. Case No.3 of 2012 in the court of the learned 2nd Civil Judge (Senior Division), Cuttack-cum- Election Tribunal U/S. 44-A of the Orissa Panchayat Samiti Act, 1959 (for short 'the Act') challenging the election of the petitioner on the ground that the petitioner is having three children and the third one, namely, Sanjaya Kumar Das @ Prasanta Kumar Das is born after the cut of date.

5. The petitioner filed written statement denying the allegations and averred that he has been blessed with one son and one daughter. Sanjaya Kumar Das @ Prasanta Kumar Das is not his son, but he is natural born son of Prafulla Kumar Das, who is his co-brother-in-law, being the husband of Kanchanalata, sister of his wife. There was dispute between Prafulla Kumar Das and his wife Kanchanalata. So, Prafulla deserted Kanchanalata. Kanchanalata, being unable to maintain her two sons, petitioner brought Sanjay Kumar Das @ Prasanta Kumar Das to his house and affectionately shown him as his father in the School record etc. It is specifically averred that Sanjay Kumar Das @ Prasanta Kumar Das, being not the natural born son of the petitioner, he does not attract any disqualification U/S. 45 (1) (v) of the Act. The O.P. No.1 as petitioner, besides examining himself and other witnesses, has proved School Admission Register of different Schools and the Voter Identity Card of Sanjay Kumar Das @ Prasanta Kumar Das, which has been marked as exhibit to show that Sanjay Kumar Das @ Prasanta Kumar Das is the son of the present petitioner. On 13.07.2012, the present petitioner filed a petition praying for a direction to the Professor-cum-H.O.D., FMT Department, S.C.B. Medical College & Hospital, Cuttack or any other like person to conduct blood-grouping test of the petitioner, his wife (Bharati), his alleged son Sanjay Kumar Das @ Prasanta Kumar Das (OPW.2), Kanchanalata Das (OPW.3) and her husband Pafulla Kumar Das.

6. Learned Election Tribunal, taking into consideration the provisions contained in Section- 44-H of the Act held that the Election Tribunal has no power to issue a direction for blood-grouping test.

7. Thereafter, the parties led evidence in support of their respective pleas. The petitioner as O.P. No.1, produced the blood-grouping test report of as many as five persons including hat of the disputed child, i.e., Sanjay Kumar Das @ Prasanta Kumar Das (OPW.2), himself (petitioner) and his wife Bharati Das, Prafulla Kumar Das (OPW.5) and his wife Kanchanalata Das (OPW.3). Prafulla Kumar Das and Kanchalata Das are stated to be the natural parents of aforesaid Sanjay Kumar Das @ Prasanta Kumar Das. The blood-grouping test reports were tendered in evidence as Ext.S series. The blood slides were produced in evidence through Ext.T series by OPW.7 a Pharmacist, who allegedly conducted the blood-grouping test of these five persons. In course of hearing of arguments, the present O.P. No.1 raised question-mark over competency of OPW.7 to conduct bloodgrouping test. Thereafter, on 05.09.2012, the present petitioner filed a petition vide Annexure- 7 to W.P.(C) No.20449 of 2012 seeking dispatch of blood slide Ext.T series to FMT Department of S.C.B. Medical College & Hospital, Cuttack or any other duly recognized/registered Laboratory for blood-grouping test. Such petition was also rejected by the learned Election Tribunal on the ground of lack of jurisdiction.

8. In course of argument before this Court, plea for DNA test of the alleged Sanjay Kumar Das @ Prasanta Kumar Das along with the petitioner, his wife and his alleged natural parents, was raised for the first time, though no such prayer was made before the Election Tribunal. In the order dated 12.09.2012, learned Election Tribunal has rightly observed that the blood grouping test and the blood slides marked as exhibits by OPW.7, shall be taken into consideration at the time of final hearing.

9. The blood-grouping test to know the paternity of a child is not, however, the surest test in science. However, the slides and blood-grouping test report having been marked as exhibits by OPW.7, it’s probative value, admissibility and its probative effect shall be decided by the learned Election Tribunal at the time of final hearing of the petition. Hearing of argument in the case has already been taken up. At this stage, such a move by the petitioner is nothing but a delaying tactice.

10. Taking into consideration the stage of the case and the evidence adduced by the parties and the duty cast upon the Election Tribunal to take into consideration, the exhibits already marked so far as their probative value and effect is concerned including the question of admissibility, question as to whether the Election Tribunal has power to order for bloodgrouping test has become academic in the present case. Such a question may, however, be decided, when appropriate case comes and appropriate plea for DNA test is raised before the learned Election Tribunal. As found from the impugned order, nowhere in any of the petitions, from which, both the impugned orders arises, the question of DNA test was raised before the Election Tribunal. Such a plea is raised for the first time before this Court. At this stage, such a question cannot be decided, especially in view of the finding of the learned Election Tribunal in order dated 12.09.2012 to the effect that the probative value and effect of the blood-grouping test and slides proved by the OPW.7, shall be taken into consideration at the time of hearing.

11. Taking into consideration the aforesaid facts and the impugned order passed by the learned Election Tribunal in both the writ applications, I do not feel inclined to take up the question of power and jurisdiction of the learned Election Tribunal to order for DNA test, as answer to that question is mere academic in nature in the facts and circumstances of the present case.

12. Accordingly, both the writ applications are dismissed. Election Misc. Case No.3 of 2012 be disposed of as expeditiously as possible.
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