Karnataka High Court
Karan vs The State Of Karnataka on 7 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2024:KHC-K:1361
CRL.P No.200048 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL PETITION NO.200048 OF 2024 (439)
BETWEEN:
KARAN S/O PREM SINGH PAWAR
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O DEVGIRI(A) TANDA, TQ. CHITGUPPA,
DIST. BIDAR-585401.
...PETITIONER
(BY SRI SANJAY A. PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA THROUGH
Digitally signed POLICE BEMALKHED POLICE STATION,
by SHILPA R CHITGUPPA CIRCLE, DIST. BIDAR-585401,
TENIHALLI REPRESENTED BY,
Location: HIGH ADDL. SPP, HIGH COURT OF KARNATAKA,
COURT OF KALABURAGI BENCH-585107.
KARNATAKA
...RESPONDENT
(BY SMT. ANITA M. REDDY, HCGP)
THIS CRL.P. IS FILED U/S. 439 OF CR.P.C PRAYING TO
ALLOW THE PETITION THERE BY ENLARGE THE PETITIONER ON
BAIL IN CRIME NO. 53/2022 REGISTERED BY BEMALKHED
POLICE STATION, DISTRICT BIDAR AND CHARGE SHEETED
FOR THE OFFENCES PUNISHABLE U/SECS. 201, 302 OF IPC
NOW PENDING IN S.C.NO.5046/2023 ON THE FILE OF II
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NC: 2024:KHC-K:1361
CRL.P No.200048 of 2024
ADDITIONAL DISTRICT AND SESSIONS COURT, BIDAR
SITTING AT BASAVAKALYAN.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has filed this petition under Section 439 of Cr.P.C. for enlarging him on regular bail in Bemalkhed Police Station Crime No.53/2022 registered for the offences punishable under Sections 302 and 201 of IPC.
2. It is the case of the prosecution that the deceased Tarasing is the son of the complainant and there is dispute regarding the partition in the family members between the deceased and his uncle i.e., father of the petitioner. It is alleged that the deceased was addicted to alcohol and was residing with the complainant and he used to quarrel with his uncle as well as mother under intoxicated state of mind. It is further alleged that on 17.10.2022 at 10-30 p.m., the deceased came to the house under intoxicated state of mind and quarreled with -3- NC: 2024:KHC-K:1361 CRL.P No.200048 of 2024 his uncle Premsing pertaining to partition in the ancestral property and verbal exchange of words has taken place. Then, the complainant asked the deceased that this matter can be discussed on the next day since it was late night and hence, they went. She had gone out of the house and the deceased slept in the house. It is alleged that on 18.10.2022 at 10.30 a.m., when complainant came to the house saw that her son i.e., Tarasing was murdered as his neck was slit and in this regard, a complaint was lodged against unknown persons.
3. The alleged offence is said to have been committed on the intervening night of 17.10.2022 and 18.10.2022. Subsequently, the Investigating Officer has suspected the complainant i.e., the petitioner herein as well as his father and hence, he subjected all of them to Polygraphic test as well as Brain Electrical Acclamation Egneture Profiling (B.E.O.S) test. It is alleged that in B.E.O.S test, the petitioner has narrated regarding he committing offence and remembered slitting the throat of -4- NC: 2024:KHC-K:1361 CRL.P No.200048 of 2024 the deceased with the weapon and cleaning the weapon by muffler and sneaking out of the room. On the basis of this Brain Mapping Test, the Investigating Officer has implicated the petitioner in the instant case. He was arrested on 16.07.2023 after obtaining report of the Brain Mapping Test and then after completing the investigation, submitted the charge sheet.
4. The petitioner was produced before the concerned Court and was remanded to custody. The petitioner has approached the learned Sessions Judge seeking regular bail and learned Sessions Judge has rejected the bail petition. Hence, petitioner is before this Court.
5. Heard the arguments advanced by the learned counsel for petitioner and learned HCGP.
6. The learned counsel for petitioner would contend that the entire case of the prosecution is based on Brain Mapping Test and Brain Mapping Test was not conducted as per the guidelines laid down by the Apex -5- NC: 2024:KHC-K:1361 CRL.P No.200048 of 2024 Court reported in (2010) 7 SCC 263 (SELVI AND OTHERS Vs STATE Of KARNATAKA). He would assert that the consent of the petitioner in presence of the learned Magistrate and his counsel was not obtained and hence, Brain Mapping Test cannot be accepted and now only recovery is there, which is based on circumstantial evidence. The chain of the links is required to be proved by the prosecution and since investigation is concluded and charge sheet has been laid down and considering lapses in the investigation, he has sought for admitting the petitioner on regular bail as he undertakes to abide by the terms & conditions to be imposed by this Court.
7. Per contra, the learned HCGP would contend that the Brain Mapping Test was conducted with the permission of the jurisdictional Magistrate and consent of the petitioner was also obtained. Hence, she would contend that said ground is not acceptable and the Brain Mapping Test lead to recovery of the weapon and hence, she would contend that there is material evidence as -6- NC: 2024:KHC-K:1361 CRL.P No.200048 of 2024 against the petitioner and sought for dismissal of the petition, apprehending that there is every possibility of he tampering the prosecution witness.
8. Having heard the arguments and perusing the records, prima facie it is evident that there is dispute between the deceased and his uncle regarding partition of the ancestral properties. It is also evident that on 17.10.2022, at 10.00 p.m., the deceased under intoxicated state of mind quarreled with the father of the petitioner i.e., his own uncle regarding partition of the property and at that time, the complainant i.e., the mother of the deceased pacified the dispute asking them to discuss the matter on the next day morning since it was late night. Then everybody went to sleep and on the next day morning, the deceased was found murdered by slitting his throat.
9. The evidence also discloses that the Investigating Officer did not get any clue and since the murder was in the house itself wherein the complainant, -7- NC: 2024:KHC-K:1361 CRL.P No.200048 of 2024 petitioner and the uncle of the deceased were residing along with the deceased. He suspected them and on that suspicion, he subjected them to Polygraphic Test and Brain Mapping Test. On the basis of Brain Mapping Test, it is alleged that he secured clue of petitioner slitting the throat of deceased and destroying the evidence. Hence, he has implicated him and subsequently, submitted the charge sheet.
10. The learned counsel for petitioner invited the attention of the Court to the guidelines laid down by the full bench of the Hon'ble Apex Court in decision reported in Selvi's case (supra) and argued that these guidelines issued in para No.265 were not at all complied by the Investigating Officer.
11. The learned HCGP would contend that the consent was given by the petitioner and other two persons i.e., the complainant and uncle of the deceased for Brain Mapping Test and produced the copies of the same. She -8- NC: 2024:KHC-K:1361 CRL.P No.200048 of 2024 would also contend that the learned Magistrate has also granted permission for Brain Mapping Test.
12. The Hon'ble Apex Court in the above refereed Selvi's case has laid down guidelines for conducting Brain Mapping Test and said guidelines are reproduced here for better appreciation.
"265. The National Human Rights Commission had published Guidelines for the Administration of Polygraph Test (Lie 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:
(1) 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.-9-
NC: 2024:KHC-K:1361 CRL.P No.200048 of 2024
(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.
13. Hence, as per clause (iii) the consent should be recorded before the judicial Magistrate and during hearing before the judicial Magistrate, person alleged to have agreed should be duly represented by a lawyer. But on perusal of the documents produced by the learned HCGP, it is evident that though requisition was submitted before the jurisdictional Magistrate, the Magistrate has simply passed an order for subjecting the petitioner to undergo polygraph & B.E.O.S test, subject to obtaining the consent
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NC: 2024:KHC-K:1361 CRL.P No.200048 of 2024 of the concerned proposed persons. That was not the intention of the Apex Court in the decision referred above. Even the consent copies produced disclose that they are neatly typed and they were obtained in the presence of Investigating Officer, but they are required to be obtained before the learned Magistrate and he should be represented by the counsel. But no such evidence is forthcoming at this juncture. Hence, at this stage, the Brain Mapping Test cannot be given much importance and now only evidence available is the recovery of alleged weapon. But that is required to be proved only during the trial and the entire case is now based on circumstantial evidence. Chain of the circumstances are to be proved by the prosecution. Considering the facts & circumstances, and considering the fact that investigation is concluded and final report is already submitted, I do not find any impediment for admitting the petitioner on regular bail. The other apprehensions raised by the learned HCGP can be meted out by imposing certain conditions. Hence, the
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NC: 2024:KHC-K:1361 CRL.P No.200048 of 2024 petition needs to be allowed and accordingly, I proceed to pass the following:
ORDER The petition is allowed.
The petitioner is directed to be enlarged on bail in Crime No.53/22 registered by Bemalkhed Police Station pending in SC No.5046/23 on the file of II Additional Sessions Judge, Bidar, sitting at Basavakalyan for the offences punishable under Sections 201 and 302 of IPC on executing a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with one surety for the likesum to the satisfaction of the concerned Court, subject to following conditions:
i) The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses;
ii) He shall appear before the Court on all hearing dates without fail, except when he is specifically
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NC: 2024:KHC-K:1361 CRL.P No.200048 of 2024 exempted from doing so and shall co-operate in speedy disposal of the case.
iii) He shall not involve in any criminal activities.
iv) He shall not leave the jurisdiction of the trial Court without prior permission of the trial Court.
Sd/-
JUDGE RSP/DS List No.: 1 Sl No.: 12