Madras High Court
Dinesh Dalmia vs State By Spe, Cbi on 7 March, 2006
Equivalent citations: 2006CRILJ2401, 2006 CRI. L. J. 2401, 2006 (3) AJHAR (NOC) 913 (MAD), 2006 (5) ABR (NOC) 813 (MAD), 2006 (6) AKAR (NOC) 808 (MAD), (2006) 4 EASTCRIC 298, (2006) 1 MAD LJ(CRI) 411, (2006) 4 CURCRIR 88, (2006) 4 CRIMES 351, (2006) 4 RECCRIR 361
ORDER M. Jeyapaul, J.
1. The petition is filed challenging the order passed by the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai in Crl.M.P. No. 389 of 2006 in RC 4 (E)/2003-BS&FC, CBI, New Delhi in C.C. No. 19189 of 2005.
2. The petitioner has been accused of misappropriation of a sum of Rs. 594.88 crores by selling 1,30,00,000/- unallotted-unlisted shares of DSQ Software Limited.
3. The petitioner was arrested and produced before the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, on 14.2.2006. The learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, was pleased to grant police custody from 14.2.2006 to 24.2.2006. The said police custody was extended till 27.2.2006 on the basis of the affidavit filed by the Investigating Officer. The accused was thereafter surrendered to judicial custody on 27.2.2006.
4. The respondent-police filed a petition seeking permission to conduct the Polygraph, Narco Analysis and Brain Mapping test on the accused and to direct the Superintendent of Prisons, Central Jail, Chennai, to produce the accused before the FSL Bangalore on 7th and 8th March 2006, to undergo the aforesaid tests.
5. The reason assigned in the petition seeking such a relief by the respondent herein is that the accused failed to cooperate with the investigation process undertaken during custodial interrogation. To unravel the end use of huge defrauded amount, scientific investigation will have to be carried out, it has been alleged.
6. The learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, having considered the gravity of the offence alleged against the petitioner and his non-cooperation during the course of investigation under police custody, was pleased to allow the petition filed by the respondent herein.
7. In the criminal revision, it is contended that the accused cannot be compelled to give evidence as against him. The grant of police custody beyond 15 days, is out of the purview of Section 167 of the Code of Criminal Procedure. There is an intrusion in the constitutional right of the accused to be silent under Article 20(3) of the Constitution of India.
8. Learned senior counsel appearing for the petitioner-accused would submit that there is health hazard in Polygraph, Narco Analysis and Brain Mapping tests. It is an indirect physical torture launched against the accused, it is submitted. Learned senior counsel would further argue that when the accused had not given any consent to subject himself to the aforesaid scientific tests, a false statement has been given in the petition by the Investigating Officer as though the accused volunteered to face such tests. It is his further submission that the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai has thrown to wind the mandatory provision as contemplated under Section 167 of the Code of Criminal Procedure that the police custody shall not be permitted beyond 15 days.
9. Learned counsel for the respondent on being served with the notice, appeared and submitted that the accused has volunteered to undergo the tests. It is his submission that the question of taking the accused to police custody beyond the period of 15 days does not arise in this matter as the accused had been directed only to appear for the tests. He would further argue that the aforesaid scientific tests will have to be conducted to unravel the mystry. It is his last submission that the criminal revision case laid by the petitioner-accused under Section 397 of the Code of Criminal Procedure is not maintainable.
10. It has been held in the authority in Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and Ors. as follows:-
The interdict contained in Section 397(2) of the Code of Criminal Procedure (for short 'the Code') is that the powers of revision shall not be exercised in relation to any interlocutory order. Whether an order is interlocutory or not, cannot be decided by merely looking at the order of merely because the order was passed at the interlocutory stage. The safe test laid down by this Court through a series of decisions is this: If the contention of the petitioner who moves the Superior Court in revision, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate? If it would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage.
11. Interlocutory order is one which is passed at some intermediate stage of a proceeding in order to advance the cause of justice for the final determination of the rights between the parties. Orders of purely interim or temporary nature, which do not decide the important rights or liabilities of the parties, can very well be termed as interlocutory orders and the orders, which substantially affect the rights of the parties, cannot be said to be an interlocutory order.
12. In this matter, the right to direct the accused to undergo scientific tests has been finally determined by the Court below and thereby the criminal proceedings taken to demystify the grey area of investigation has culminated. Therefore, the Court finds that the present order impugned which substantially determines the rights of the parties is a final order challengeable under Section 397 of the Code of Criminal Procedure by way of revision.
13. Of course, Article 20(3) of the Constitution of India, recognises the right of the accused to be silent. The Investigating Officer has come out with a version that the accused has volunteered to undergo such a test. Of course, such a contention of the Investigating Officer is disputed by the accused now.
14. Huge amount of amount has allegedly been misappropriated by the accused and the investigating agency is completely in the dark as to the end use of such a huge amount siphoned off by the accused. The Investigating Officer did not use third decree methods to extract incriminating materials through the mouth of the accused. Only a scientific test on the accused is prayed for by the respondent-complainant. That the accused will face health hazard and his physical frame will be endangered if he undergoes such scientific tests are totally without any scientific basis. As rightly pointed out by the learned counsel for the respondent, the scientific tests are like taking MRI or CT Scan. The scientific value of such tests and the credibility thereof will have to be evaluated only during the course of trial. Unless such tests are conducted, the investigating agency may not be in a position to come out with clinching testimony as against the petitioner. Subjecting an accused to undergo such scientific tests will not amount to braking his silence by force. He may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary. Therefore, such process does not amount to compelling a witness to give evidence as against him.
15. It has been held in the authority in Nandini Satpathy v. P.L. Dani as follows:-
The phrase 'compelled testimony' must be read as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like - not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3).
The aforesaid authority deals with application of third decree methods to compel an accused to come out with revelation. The above authority will have no application to scientific tests which helps the Investigating Officer to unravel the mystery.
16. Under Section 167 of the Code of Criminal Procedure, the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai has power only to remand the accused under police custody for a total period of 15 days. Here in this case, the police custody was already granted for 14 long days. Now the respondent has not sought before the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, to give the accused to police custody for further interrogation. The respondent has only sought a permission to conduct three types of scientific tests and also a direction to the Superintendent of Central Prisons, to produce the accused to undergo such tests. Such a prayer will not amount to seeking for police custody of an accused for further interrogation. Therefore, the legal submission made by the learned senior counsel for the petitioner with regard thereto stands rejected.
17. As the accused had not allegedly come forward with the truth, the scientific tests are resorted to by the investigating agency. Such a course does not amount to testimonial compulsion. When there is a hue and cry from the public and the human rights activists that the investigating sleuths adopt third decree methods to extract information from the accused, it is high time the investigating agency took recourse to scientific methods of investigation. The learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, has granted the relief as prayed for by the respondent herein to secure the ends of justice. Therefore, there is no warrant for upsetting the order passed by the Court below.
18. In the result, the criminal revision petition stands dismissed. Consequently, connected criminal miscellaneous petitions also stand dismissed.