Karnataka High Court
Mahesh vs The State Of Karnataka on 3 December, 2015
Author: R.B Budihal
Bench: R.B Budihal.
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF DECEMBER 2015
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL PETITION NO. 101490/2015 c/w
CRIMINAL PETITION NO.101719/2015
IN CRL. P. NO. 101490/2015
BETWEEN:
MAHESH S/O SHARANAPPA JAMANABADI,
AGE: 26 YEARS, OCC.: ASST. CUSTOMER
SERVICE ENGINEER, MIDCO LTD.,
BENGALURU, WORKING AT BALLARI,
AUHOMBI AREA, NEAR CHAITANYA CHOLLEGE,
BEHIND JANARDHAN REDDY PETROL BUNK,
BALLARY.
- PETITIONER
(BY SHRI. S.G. KADADAKATTI AND
LINGESH V. KATTIMANI, ADVOCATES)
AND:
THE STATE OF KARNATAKA,
REP. BY ADDL. S.P.P., AG'S OFFICE,
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
DHARWAD BENCH, DHARWAD.
- RESPONDENT
(BY SHRI. RAJA RAGHAVENDRA NAIK, GOVT. PLEADER,
SRI ANAND R. KOLLI, ADVOCATE)
THIS PETITION IS FILED UNDER SECTION 482 OF CR.P.C.
SEEKING TO QUASH THE IMPUGNED ORDER DATED 01.09.2015
PASSED BY PRINCIPAL SENIOR CIVIL JUDGE AND CJM,
BAGALKOT IN CRIME NO. 63/2015 FOR THE OFFENCES U/S 366
AND 368 OF IPC.
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IN CRL. P. NO. 101719/2015
BETWEEN:
MAHESH S/O SHARANAPPA JAMANABADI,
AGE: 26 YEARS, OCC.: ASST. CUSTOMER
SERVICE ENGINEER, MIDCO LTD.,
BENGALURU, WORKING AT BALLARI,
AUHOMBI AREA,
NEAR CHAITANYA CHOLLEGE,
BEHIND JANARDHAN REDDY
PETROL BUNK, BALLARY.
- PETITIONER
(BY SHRI. S.G. KADADAKATTI AND
LINGESH V. KATTIMANI, ADVOCATES)
AND:
THE STATE OF KARNATAKA,
REP. BY ADDL. S.P.P., AG'S OFFICE,
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
DHARWAD BENCH, DHARWAD.
- RESPONDENT
(BY SHRI. RAJA RAGHAVENDRA NAIK, GOVT. PLEADER,
SRI ANAND R. KOLLI, ADVOCATE)
THIS PETITION IS FILED UNDER SECTION 482 OF CR.P.C.
SEEKING TO QUASH THE FIR REGISTERED IN CRIME NO.
63/2015 FOR THE OFFENCES U/S 366 AND 368 OF IPC ON THE
FILE OF RESPONDENT POLICE & ETC.
THESE PETITIONS HAVING HEARD AND RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT OF ORDERS
THIS DAY, THE COURT, MADE THE FOLLOWING:
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ORDER
1. These are the petitions filed by the petitioner-accused under Section 482 of Cr.P.C. requesting the Court to quash the impugned order dated 01.09.2015 passed by the Prl. Sr. Civil Judge & CJM, Bagalkot in Crime No. 63/2015 registered for the offences punishable under Section 366 and 368 of IPC and to quash FIR in Crime No. 63/2015.
Since both these petitions are filed by the same petitioner, they involve common question of law and facts they are taken together and disposed of by this common order.
2. Brief facts of the respondent-complainant's case are that the Police registered FIR against the petitioner herein for the offences punishable under Section 366 and 368 of IPC. Based on the said complaint alleged to have given by the Dy.S.P, Bagalkot alleging that father of one missing girl, Shivappa Mudakappa Hulaganni lodged complaint stating that his daughter Shilpa was studying in B.E. in Information & Technology at Basaveshwar Engineering College, Bagalkot. On 22.08.2015 along with his :4: daughter the said Shivappa Mudakappa Hulaganni went to Navanagar bus stand and his daughter left him stating that she will go to College and thereafter she did not turn up and on 06.09.2014 the father of missing girl lodged complaint with Navanagar Police Station which was registered in Crime No. 85/2014 and thereafter he also filed W.P. No. 100008/2015 before this Court and the petitioner under the said Writ Petition made allegation that he has suspicion over the present petitioner about missing of his daughter and the said person has disclosed the said fact in the complaint filed by him and based on the said writ petition the respondent Police are investigating the case. Therefore, the respondent lodged the complaint against the petitioner and after registering the missing complaint they have given information to all the Police Stations in the State and also enquired with the College students and the Principal so also the parents and family members of the said girl and even after making all the efforts whereabouts of the missing girl are not traced out. Thereafter the said enquiry was entrusted to C.P.I. (City Circle) :5: who has conducted enquiry by collecting phone numbers used by particular phone trap and the persons to whom calls have been made were also examined so also the students who were close to the missing girl have been examined and persons known to the lady are also examined and inspite of all these efforts no information is forthcoming about the missing girl and the present petitioner who is respondent no.3 in the said writ petition who has not given information about using of mobiles and therefore he is not telling the truth. Therefore, he is to be subjected for polygraph/ lie detector test. Further, the respondent also alleged to have recorded statement of the petitioner herein dated 09.05.2015. Based on these statements the respondent Police submitted requisition to the Principal Senior Civil Judge & C.J.M, Bagalkot requesting to grant permission for subjecting the petitioner herein for polygraph/ lie detector test. Based on the said requisition the learned C.J.M, Bagalkot by order dated 01.09.2015 allowed the requisition and granted permission to subject the present petitioner for polygraph/ lie detector test. :6:
3. The petitioner challenged the said order alleging that it is without jurisdiction and contrary to the mandatory provisions issued by the National Human Rights Commission and the Judgment of the Hon'ble Apex Court reported in 2010 (7) SCC 263 (Selvi and Others Vs. State of Karnataka). The trial Judge failed to appreciate that the respondent had filed the FIR with the allegation that father of the missing girl has suspicion and based on that, the respondent was produced before the Court. The petitioner co-operated with the Investigating Officer and his statement had been recorded. The petitioner has not confined the missing girl and he has not suppressed any information nor he has kidnapped the said girl. The learned trial Judge failed to follow the procedure as contemplated under law and without following the mandatory requirement passed the order in a mechanical manner. Hence, sought to set aside the said order.
4. The respondent opposed the application and contended that the order passed by the learned C.J.M, Bagalkot, is in accordance with law.
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5. I have heard arguments of the learned counsel appearing for the petitioner-accused and also the learned Govt. Pleader appearing for the respondent-State. Learned counsel Sri Anand R.Kolli assisted the learned Govt. Pleader while hearing the submission of the respondent-State.
6. Learned counsel for the petitioner submitted that the learned C.J.M, Bagalkot before passing the impugned order has not given any opportunity to the petitioner herein to submit his say in the matter. Therefore, on this ground itself the impugned order is liable to be set aside. He also submitted that the decisions and guidelines laid down by the National Human Rights Commission were not taken into consideration by the learned C.J.M, Bagalkot in passing the impugned order. He further submitted that, in the writ proceedings the respondent-State not submitted all the facts correctly. Even registration of the crime no. 63/2015 was also suppressed and not brought to the notice of the writ Court. Hence, submitted that the order is illegal and not maintainable in law and same is to be set aside. In support of his :8: contention learned counsel appearing for the petitioner has relied upon the following decisions.
(i) (2010) 7 Supreme Court Cases 263 (Selvi and Others Vs. State of Karnataka;
(ii) AIR (SC) 2001 2637 (T.T. Antony Vs. State of Kerala);
(iii) AIR (SC) 2013 3794 (Amitbhai Anilchandra Shah Vs. Central Bureau of Investigation);
(iv) AIR (SC) (CRI) 2013 - 315 (Anju Chaudhary Vs. State of U.P.).
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7. Per contra learned Govt. Pleader during the course of his arguments submitted that, on perusing the order passed by the trial Court, it appears the trial Court has followed the procedure and correctly appreciated the facts and then passed the order directing the petitioner herein subjecting him for polygraph/ lie detector test. He also submitted that if the present petitioner is not involved in committing the alleged offences then why there is apprehension in the mind of the petitioner for subjecting himself to the said test. Learned Govt. Pleader further submitted that even if the present petitioner is subjected for polygraph/ lie detector test, it will not violate the fundamental right of the petitioner guaranteed under Article 20(3) of the Constitution of :9: India. Hence, he submitted that there is no merit in the petition and the same is to be rejected. In support of his contention learned Govt. Pleader relied upon the following decisions.
(i) A.I.R. 1961 Supreme Court 1808 (State of Bombay V. Kathi Kalu Oghad);
(ii) Bombay High Court (Ramachandra Ram Reddy Vs. The State of Maharashtra)
(v) (2010) 7 Supreme Court Cases 263 (Selvi and Others Vs. State of Karnataka;
8. Learned counsel Sri Anand R. Kolli submitted that during the last adjournment the counsel appearing for the petitioner agreed for the petitioner undergoing lie detector test but the only objection raised was that, he is not capable to pay the expenses of the said test. Hence, for this the learned counsel submitted that the complainant is ready to bear the expenses and even in this regard the complainant is ready to file the affidavit to bear the expenses of the lie detector test. He relied upon the following decisions.
(i) 2013 AIAR (Criminal) 278 (C.P. Subhash Vs. Inspector of Police, Chennai & Ors.)
(ii) (2006) 6 Supreme Court Cases 736 (Indian Oil Corpn. Vs. NEPC India Ltd., And Others).: 10 :
9. I have perused the averments made in the petition, the affidavit filed by the respondent-State and the decisions relied upon by both the sides. Before coming to the principles enunciated in the said decisions, the first and foremost contention of the petitioner herein is that after the Police made requisition before the learned C.J.M, Bagalkot, notice of the said application was not given to the petitioner herein. The respondent-State also admitted that petitioner was not heard in the matter. As per the principles of natural justice when such an application was filed by the respondent Police seeking that the petitioner herein may be subjected himself for lie detector test, the Court before passing any order ought to have serve copy of the requisition on the petitioner herein and after hearing his say in the matter the Court could have proceeded to pass the order on the said requisition. But, looking to the materials placed on record it appears that the trial Court has not followed the said procedure. Therefore, the order passed by the C.J.M, Bagalkot is in the nature of an exparte order without affording opportunity to the petitioner. Apart from : 11 : that, on perusing the decision reported in (2010) 7 SCC 263 which decision is relied upon by both the sides, the observation made by the Hon'ble Supreme Court in the said decision for passing the orders on such applications, it is relevant to mention the conclusion part of the said judgment of the Hon'ble Apex Court which is at paragraph no. 262 to 266 which reads as under:
262. In our considered opinion, the compulsory administration of the impugned techniques violates the `right against self-
incrimination'. This is because the underlying rationale of the 246 said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. This Court has recognised that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible `conveyance of personal knowledge that is relevant to the facts in issue'. The results obtained from each of the impugned tests bear a `testimonial' character and they cannot be categorised as material evidence.
263. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of `substantive due process' which is required for restraining 247 personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a : 12 : non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of `ejusdem generis' and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to `cruel, inhuman or degrading treatment' with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the `right to fair trial'. Invocations of a compelling public interest cannot justify 248 the dilution of constitutional rights such as the `right against self-incrimination'.
264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872.
265. The National Human Rights Commission had published `Guidelines for the Administration of Polygraph Test (Lie 249 Detector Test) on an Accused' in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the `Narcoanalysis technique' and the `Brain Electrical Activation Profile' test. The text of these guidelines has been reproduced below:
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(i) No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
(ii) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
(iii) The consent should be recorded before a Judicial Magistrate.
(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a `confessional' statement to the Magistrate but will have the status of a statement made to the police.
(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
(vii) The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
(viii) A full medical and factual narration of the manner of the information received must be taken on record.
266. The present batch of appeals is disposed of accordingly.
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10. On perusing the principles enunciated in the said decision also I am of the opinion that it is necessary to set aside the order passed by the learned C.J.M, Bagalkot dated 01.09.2015 passed on : 14 : the requisition filed by the respondent State giving opportunity to the petitioner to submit his say in the matter.
So far as the petition in Crl. P. No. 101719/2015 filed by the petitioner seeking to quash the FIR in Crime No. 63/2015 is concerned, it is relevant to note that the Police have already made requisition to the CJM Court, Bagalkot for subjecting the petitioner for lie detector test and at this juncture the question of quashing the FIR does not arise. The matter is still under investigation and more particularly when the Police have sought for an order at the hands of the CJM Court, Bagalkot for subjecting the petitioner herein to lie detector test, the FIR cannot be quashed. However, it is open for the petitioner after the order passed by the learned CJM, Bagalkot on the said requisition, moved by the Police and in case if it is allowed the petitioner is directed to subject himself for lie detector test, after conclusion of the test, he is at liberty to move the Court for appropriate reliefs, if he is so advised.
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In view of the aforesaid reasons, I proceed to pass the following order.
ORDER Crl. P. No. 101719/2015 filed by the petitioner praying to quash the FIR in Crime No. 63/2015 on the file of respondent Police is rejected.
Criminal Petition No. 101490/2015 is allowed. Order dated 01.09.2015 passed by the Principal Civil Judge (Sr. Dn.) & C.J.M, Bagalkot on the requisition dated 13.08.2015 filed by the C.P.I. Town Police Station, Bagalkot, is hereby set aside. Matter is remitted back to the said Court with a direction to hear the application afresh giving opportunity to the petitioner to submit his say in the matter and then to dispose of the said application in accordance with law.
Petitioner herein is directed to appear before the Principal Civil Judge (Sr. Dn.) & C.J.M, Bagalkot on 15.12.2015 without fail and the said Court need not issue notice again to the petitioner herein for his appearance.
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In view of urgency in the matter, learned Principal Civil Judge (Sr. Dn.) & C.J.M, Bagalkot is directed to dispose of the said application on merits within two months from 15.12.2015.
Office is directed to communicate this order to the concerned Court forthwith.
Sd/-
JUDGE bvv