Gujarat High Court
Savji Mulji Vaghela vs State Of Gujarat &
Author: N.V.Anjaria
Bench: N.V.Anjaria
SAVJI MULJI VAGHELA....Applicant(s)V/SSTATE OF GUJARAT R/CR.RA/563/2007 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 563 of 2007 ================================================================ SAVJI MULJI VAGHELA....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance: MR PJ KANABAR, ADVOCATE for the Applicant(s) No. 1 MS ADITI P KANABAR, ADVOCATE for the Applicant(s) No. 1 MR LR PUJARI, LD. APP for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 05/03/2013 ORAL ORDER
1. The present revision application is filed against the order dated 31st August, 2007 of learned Chief Judicial Magistrate, Junagadh, whereby he has allowed taking of Narco Analysis Test of the applicant herein.
2. The facts giving rise to the present revision application are as under.
3. An application (Exh.42) by the Police Inspector, A Division Police Station, Junagadh was then moved wherein it was submitted that Narco test of the applicant was considered necessary in connection with the First Information Report registered at I-115 of 2006. The said First Information Report was registered on 25th April, 2006 at around 09.15 am at the Junagadh A Division Police Station. The first informant was one Musabhai Mohammedbhai, Armed Police Head Constable. Offence under Section 302 and 397, IPC was registered. The first informant stated in the complaint that from 11.00 am on 24th April, 2006 to 11.00 am on 25th April, 2006 he was on duty as Junagadh District Treasury Guard Commander and along with him Police Constable Mangabhai Naran, Police Constable Garibsha Kamalsha, Police Constable Jignesh Madhubhai Solanki were also on duty. On 24th April, 2006 the guard duty from 11.00 am was of Mangabhai Naranbhai. Thereafter Police Constable Garibsha Kamalsha was on duty upto 04.00, then Jingeshbhai Madhubhai Solanki was there; duty of Mangabhai Naranbhai was again to start from 08.00 in the night hours. As per Rules, a Constable, who happens to be on duty keeps with him Musket-410 Rifle and other Santris used to stay in the Guard Room. It was stated that when Mangabhai Naranbhai was on duty from 08.00 pm onwards, he and Jigneshbhai Madhubhai were in the Guard Room and the complainant went to take dinner at around 10.00 pm. It was stated that on the next day morning at about 07.45 am Police Constable Garibsha Kamalsha came to his house and informed that Police Constable Jignesh Madhubhai Solanki was lying dead inside the Guard Room in bleeding condition. The complainant rushed there and found Jignesh Madhubhai in dead condition on coat with injuries on the chest and on the head apparently inflicted by sharp-cutting weapon. The Rifle Musket-410 and the baton of the Rifle were missing.
3.1 In the aforesaid First Information Report, nobody was named as accused. The case of the applicant was that however he and one Pitha Nathu Gohil and Jagdish were apprehended on 25th April, 2006 by Police Inspector Kharadi of A Division Police Station, Junagadh. It was alleged that they were beaten and tortured and were kept in custody and were subjected to third degree treatment by the said Police Inspector.
It was the further case that the said Police Station again threatened and beaten them, which compelled all of three to file a complaint dated 09th September, 2006 against the said Police Inspector Mr.Kharadi for harassment and torture. Special Civil Application No.3185 of 2007 was also filed by the present applicant separately seeking directions against the State Authorities to hold inquiry in respect of the afore-mentioned complaint as no steps were being taken. Another person Jagdish Chauhan filed Special Civil Application No.6151 of 2007.
3.3 It appears that the applicant came to be subjected to Lie Detection Test on 09th October, 2006. It is thereafter that aforesaid application Exhibit 42 was moved by the Police before the Chief Judicial Magistrate seeking to have a Narco Test of the applicant. It was submitted in the application Exhibit 42 that Narco Test was required in view of the fact that in the Lie Detection Test, which was undertaken, answers given by the applicant were doubtful in polygraph analysis. It was the say of the applicant that since he and another person had filed complaint against Police Inspector Mr.Kharadi and had demanded inquiry, application for Narco Test was filed with a view to pressurise them.
4. Heard learned advocate Mr.P.J. Kanabar for the applicant and learned Additional Public Prosecutor Mr.L.R. Pujari for the respondent-State. Various grounds have been raised to assail the impugned order. However, they are not needed to be considered in detail.
5. The impugned order of the learned Chief Judicial Magistrate cannot sustain inasmuch as the issue is not more res-integra in view of decision of the Apex Court in Smt.Selvi and others Vs State of Karnataka [AIR 2010 SC 1974]. In that, the Apex Court considered challenge to the involuntary administration of certain scientific techniques, viz. Narco Analysis, Polygraph Examination and Brain Electrical Activation Profile (BEAP) Test, which were conducted for the purpose of improving investigation efforts in criminal cases. The challenge was mainly on the ground that administration of such tests were working against the right of a person to be subjected to such tests, against his self-incrimination and personal liberty.
5.1 It was held that such tests are tortuous and amounts to giving cruel, inhuman and degrading treatment. When drug is injected into the body for the purpose of tests, the Court held that injecting of drug may amounting to injury as defined under Section 44 of the Indian Penal Code or hurt as defined under Section 319 of the Code. Following observations may be noticed:
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it is quite conceivable that the administration of any of these techniques could involve the infliction of 'mental pain or suffering' and the contents of their results could expose the subject to physical abuse. When a person undergoes a narco analysis test, he/she is in a half-conscious state and subsequently does not remember the revelations made in a drug-induced state. In the case of polygraph examination and the BEAP test, the test subject remains fully conscious during the tests but does not immediately know the nature and implications of the results derived from the same. However, when he/she later learns about the contents of the revelations, they may prove to be incriminatory or be in the nature of testimony that can be used to prosecute other individuals. We have also highlighted the likelihood of a person making incriminatory statements when he/she is subsequently confronted with the test results. The realisation of such consequences can indeed cause 'mental pain or suffering' for the person who was subjected to these tests. The test results could also support the theories or suspicions of the investigators in a particular case. These results could very well confirm suspicions about a person's involvement in a criminal act. For a person in custody, such confirmations could lead to specifically targeted behaviour such as physical abuse. In this regard, we have repeatedly expressed our concern with situations where the test results could trigger undesirable behaviour.
[Para 201] We must also contemplate situations where a threat given by the investigators to conduct any of the impugned tests could prompt a person to make incriminatory statements or to undergo some mental trauma. Especially in cases of individuals from weaker sections of society who are unaware of their fundamental rights and unable to afford legal advice, the mere apprehension of undergoing scientific tests that supposedly reveal the truth could push them to make confessional statements. Hence, the act of threatening to administer the impugned tests could also elicit testimony. It is also quite conceivable that an individual may give his/her consent to undergo the said tests on account of threats, false promises or deception by the investigators. For example, a person may be convinced to give his/her consent after being promised that this would lead to an early release from custody or dropping of charges. However, after the administration of the tests the investigators may renege on such promises. In such a case the relevant inquiry is not confined to the apparent voluntariness of the act of undergoing the tests, but also includes an examination of the totality of circumstances. [Para 202] 5.2 The Apex Court held that even when an individual really consented to undergo the Test in question, the resulting testimony cannot be readily characterised as voluntary in nature. It was observed that conducting of such Test materially refers from ordinary interrogation. In an ordinary interrogation, the investigator asks questions one by one and the subject has the choice of remaining silent or answering each of the questions asked. Verbal response of the person, who is interrogated in an ordinary interrogation when continuous and is due to exercise of his own choice, can be described as voluntary. However, as far as various techniques and Scientific Test, Narco Test, Polygraphic Test are concerned, they do not permit exercise of such choice of answering in continuous manner. After initial consent, a person looses control over his consciousness and therefore, looses control over subsequent responses and answering he may give during the test. As regards the Narco Test, the Court stated, ...In case of Narco Analysis Test, subject speaks in a drug-induced state and is and is clearly not aware of his/her own responses at the time. In the context of polygraph examination and the BEAP tests, the subject cannot anticipate the contents of the 'relevant questions' that will be asked or the 'probes' that will be shown. Furthermore, the results are derived from the measurement of physiological responses and hence the subject cannot exercise an effective choice between remaining silent and imparting personal knowledge. In light of these facts, it was contended that a presumption cannot be made about the voluntariness of the test results even if the subject had given prior consent.
5.3 It is further stated by the Court, It is undeniable that during a narco analysis interview, the test subject does lose 'awareness of place and passing of time'. It is also quite evident that all the three impugned techniques can be described as methods of interrogation which impair the test subject's 'capacity of decision or judgment'. Going by the language of these principles, we hold that the compulsory administration of the impugned techniques constitutes 'cruel, inhuman or degrading treatment' in the context of Article 21. It must be remembered that the law disapproves of involuntary testimony, irrespective of the nature and degree of coercion, threats, fraud or inducement used to elicit the same.
5.4 The Court further held that it was not known as to the answers which may forthcome during the test would be inculpatory or exculpatory since this is not known, right against self-incrimination will be rendered meaningless. It was held that law confers on 'any person' who is examined during an investigation, an effective choice between speaking and remaining silent. The Narco Analysis Test was also held to be not permissible in view that it violates rights to privacy. It is, therefore, held that Narco Analysis Techniques involves a testimonial act. A person who is subjected to such a Test is encouraged by official means by injecting drugs and pushing such a person to a drug-induced state. It is held that such a technique of eliciting answers and information is totally different from verbal answers which may give during an ordinary interrogation. The Court held that compulsory administration of Narco Analysis Technique amounts to testimonial compulsion and it triggers protection of Article 20(3) of the Constitution.
6. In the aforesaid view, since conducting and performing of Narco Analysis Test has been held to be impermissible in law and unconstitutional, the impugned order dated 31st August, 2007 cannot sustain and is liable to be set aside. Accordingly, the present Revision Application is allowed by setting aside the impugned order dated 31st August, 2007. Rule is made absolute.
(N.V.ANJARIA, J.) Anup Page 8 of 8