Court emphasizes scientific determination of biological identity while safeguarding children's emotional well-being and privacy under Criminal Procedure (Identification) Act, 2022
In a sensitive and landmark judgment delivered on October 5, 2026, the Calcutta High Court, presided over by Justice Kausik Chanda, has directed limited DNA examinations in a complex case involving alleged swapping of newborn babies at a hospital in Durgapur, West Bengal. The case, which transcends ordinary criminal disputes, underscores the challenges of balancing the pursuit of biological truth with the privacy, bodily autonomy, and welfare of young children.
The petitioner, Nargish Bano, filed a complaint alleging that her newborn daughter was mistakenly exchanged with another baby born on the same day at Health World City Centre, Durgapur. The petitioner noticed discrepancies in the identification tags and blood group records shortly after delivery, raising suspicion of a possible administrative error or negligence leading to baby swapping. The hospital staff's alleged non-cooperation and threats further complicated the issue. Subsequently, a criminal case was registered under various sections of the Indian Penal Code.
Earlier attempts to conduct DNA profiling to establish biological parentage had been met with resistance, with the Magistrate initially rejecting the Investigating Agency's prayer for DNA testing of the opposing parties and their child on grounds of absence of consent. However, the High Court revisited the matter, taking note of the provisions under the Criminal Procedure (Identification) Act, 2022, particularly Sections 5 and 6, which empower a Magistrate to order measurements-including biological samples such as DNA-if deemed expedient for investigation.
Rejecting the argument that consent was an absolute prerequisite, the Court clarified that while the power to direct DNA testing is enabling and should not be exercised mechanically, refusal to comply with such direction could lead to legal consequences. The Court distinguished the present case from ordinary paternity disputes, noting that the DNA test here serves a crucial role in establishing the biological identity of children in a criminal investigation context, especially since earlier DNA results had already excluded the petitioner and her husband as biological parents of the child in their custody.
Importantly, the Court acknowledged the competing rights involved: the children's right to privacy and bodily integrity under Article 21 of the Constitution of India and the child's legitimate interest in knowing their true biological identity. Recognizing that the children, now over three years old, have formed deep emotional bonds with their families, the Court emphasized that even if DNA testing confirms the exchange, it would not automatically warrant immediate transfer of custody. Instead, any custodial decisions must be preceded by comprehensive child-welfare assessments, potentially involving child psychologists or specialists.
To balance these concerns, the Court issued specific directions:
- The petitioner, her husband, and the child in their custody must undergo repeat DNA testing at the State Forensic Science Laboratory, West Bengal.
- DNA testing of the child in custody of the opposing parties is also ordered for biological relationship determination.
- The opposing parties are given liberty, but not compelled, to undergo DNA testing to respect their privacy and bodily autonomy.
- Sample collection from children will be conducted sensitively, preferably at their respective homes, to minimize psychological impact.
- The forensic process must adhere strictly to scientific protocols, and the DNA results will serve solely to establish biological facts without directly influencing custody decisions.
The Court's judgment reflects a nuanced approach that prioritizes the scientific ascertainment of truth while carefully safeguarding the children's welfare and fundamental rights. It also clarifies legal interpretations of the Criminal Procedure (Identification) Act, 2022, especially regarding the scope and limitations of Sections 3, 5, and 6 in compelling biological samples during investigations.
The matter is scheduled for further hearing on October 15, 2026, to review compliance and subsequent proceedings.
Bottom Line:
Criminal Procedure (Identification) Act, 2022, Section 5 empowers Magistrate/Court to direct DNA examination for purpose of investigation even in absence of consent, but such power is not to be exercised mechanically - In alleged newborn baby swapping case, biological identity of children held capable of scientific determination through DNA profiling - Privacy, bodily autonomy and welfare of children must be balanced - DNA test directed in limited manner, while clarifying that DNA result alone would not justify immediate transfer of custody.
Statutory provision(s):
Criminal Procedure (Identification) Act, 2022 Sections 3, 5, 6; Indian Penal Code Sections 186, 363, 369, 417, 420, 406, 506, 120B; Constitution of India Article 21
Nargish Bano @ Nargis Bano v. State of West Bengal, (Calcutta) : Law Finder Doc Id # 2991997
