Criminal Procedure (Identification) Act 2022 | Magistrate’s Power Under Section 5 To Direct DNA Profiling Is Not Conditional Upon Consent: Calcutta High Court

"The issue involved in the present case is more humane and sensitive than criminal in nature, as it concerns the biological identity and welfare of two young children. The Court was faced with the delicate question of whether the pursuit of biological truth should prevail over the privacy and the possible emotional consequences of such examination." Calcutta High Court, in a significant ruling dated 22 September 2026, held that a Magistrate possesses the statutory authority under Section 5 of the Criminal Procedure (Identification) Act, 2022, to direct an individual to provide biological samples for DNA profiling without their consent.

A bench of Justice Kausik Chanda observed that while the power is not to be exercised as a matter of course, the lack of consent from the parties concerned does not act as an absolute bar to the exercise of judicial discretion when the discovery of truth is essential to a criminal investigation.

The matter originated from a complaint filed by the petitioner, Nargish Bano, alleging that her newborn child had been swapped with the child of Opposite Party Nos. 2 and 3 at a hospital in Durgapur in July 2023. A previous DNA report had already excluded the petitioner and her husband as the biological parents of the child currently in their care. The petitioner sought DNA profiling of the opposite parties and the child in their custody to establish biological identity, but the Magistrate rejected the plea primarily due to the lack of consent from the opposite parties.

The primary question before the court was whether the Magistrate erred in law by rejecting the prayer for DNA testing solely on the ground of the respondents' refusal to consent. The court was also tasked with determining the extent of the Magistrate's powers under Section 5 of the Criminal Procedure (Identification) Act, 2022, and whether such a direction infringes upon the constitutional right to privacy and bodily autonomy under Article 21.

Scope of Section 5 of the 2022 Act

The court clarified that the Criminal Procedure (Identification) Act, 2022, specifically defines "measurements" to include biological samples and their analysis. While Section 3 of the Act lists specific categories of persons who are obligated to provide measurements, Section 5 confers a broader power upon the Magistrate to direct "any person" to provide measurements if it is deemed expedient for an investigation or proceeding.

"Any Person" and the Absence of Consent

The court underscored that the term "any person" in Section 5 does not restrict the Magistrate's authority to accused or arrested persons alone. Crucially, the bench held that consent is not a condition precedent for the exercise of this power. The refusal to comply with a valid judicial order under Section 5 attracts the consequences stipulated under Section 6 of the Act.

Court Explains Discretionary Nature of Power

The court emphasized that the power under Section 5 is an enabling provision that requires the Magistrate to record their satisfaction regarding the "expediency" of the test. It is not an automatic power to be exercised mechanically. The statutory scheme of Section 3 provides the necessary context for the Magistrate to assess whether the facts of a specific case warrant the use of the wider powers conferred by Section 5.

"An order under Section 5 of the said Act is an enabling power to be exercised upon the Magistrate recording the requisite satisfaction; it is not a power to be exercised as a matter of course."

Balancing Biological Truth and Child Welfare

The court recognized the tension between the right to privacy and the fundamental interest of a child in knowing their biological identity. Relying on the principles in Chaturbhuj Pradhan v. Amar Pradhan, the bench observed that while privacy is a protected right, the state has a legitimate interest in determining the biological truth in criminal investigations involving alleged child swapping.

DNA Test Not A Determinant of Custody

The court stressed that a DNA result is merely a scientific fact and does not, in itself, mandate an immediate transfer of custody. It noted that children form deep emotional bonds with their caregivers, and any transition would require the assistance of child-welfare specialists and psychologists to ensure the child's psychological and emotional well-being.

"Nothing contained in this order shall be construed as a direction for transfer or exchange of custody of either of the children on the basis of the DNA result alone."

The court ordered a repeat DNA examination to be conducted by the State Forensic Science Laboratory to determine the biological relationships involved. While the petitioner and the child in her care were directed to undergo the test, the court clarified that since Opposite Party Nos. 2 and 3 were not accused in the case, the Investigating Agency shall not forcibly compel them to provide samples, though they remain at liberty to do so. The court insisted that the collection process be conducted at their residences, considering the age and sensitivity of the children.

Date of Decision: 22 September 2026