Karnataka High Court
Harish Chandra vs The State Of Karnataka on 16 December, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2024:KHC-K:9700
CRL.P No. 201352 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL PETITION NO.201352 OF 2024
[482(Cr.PC)/528(BNSS)]
BETWEEN:
HARISH CHANDRA S/O VITHAL DONGRE
AGE: 35 YEARS, OCC: DRIVER,
R/O ANANDWADI VILLAGE,
TQ. SHIROOR ANANTHPAL,
DIST. LATUR -413544
(MAHARASHTRA STATE)
...PETITIONER
(BY SRI SANJAY A. PATIL, ADVOCATE)
AND:
Digitally signed THE STATE OF KARNATAKA THROUGH
by SWETA
KULKARNI NEW TOWN POLICE STATION, BIDAR
Location: High SUB-DIVISION BIDAR,
Court Of
Karnataka DISTRICT BIDAR - 585401.
R/BY ADDL. S.P.P. HIGH COURT OF KARNATAKA
KALABURAGI BENCH - 585107
...RESPONDENT
(BY SMT. ANITA M. REDDY, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. (OLD), UNDER SECTION 528 OF BNSS-2023 (NEW),
PRAYING TO QUASH THE IMPUGNED ORDERS DATED
09.10.2024 PASSED BY PRL. DISTRICT AND SESSION JUDGE
AT BIDAR IN CRL.R.P. NO.20/2024 ON ITS FILED THEREBY
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NC: 2024:KHC-K:9700
CRL.P No. 201352 of 2024
CONFIRMING AND UPHOLDING THE IMPUGNED ORDER DATED
08.07.2024 PASSED BY II ADDL. SENIOR CIVIL JUDGE AND
JMFC BIDAR IN CRIME NO.131/2023 ON ITS FILED.
THIS PETITION, COMING ON FOR FINAL DISPOSAL THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
ORAL ORDER
Petitioner is aggrieved by the order dated 08.07.2024 passed by the II Additional Senior Civil Judge and JMFC, Bidar in Crime No.131/2023 and the order dated 09.10.2024 passed by the Principal District and Sessions Judge at Bidar in Criminal Revision Petition No.20/2024.
2. Vide impugned orders, the learned Magistrate has allowed the application filed by the prosecution for conducting polygraph and brain electrical oscillation signature profiling on the accused and the learned Sessions Judge rejected the revision petition filed by the accused challenging the said order.
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NC: 2024:KHC-K:9700 CRL.P No. 201352 of 2024
3. I have heard the learned counsel for petitioner, learned High Court Government Pleader for respondent/ State and perused the material on record.
4. A case in Crime No.131/2023 came to be registered at New Town Police Station, Bidar against the petitioner herein for an offence punishable under Section 381 of IPC, on a complaint lodged by one Deepak S/o Indrabhan Karnawat. In the complaint, petitioner working as a driver under the first informant, was suspected to have stolen a cash of Rs.29,43,000/-which was kept in the car.
5. The impugned orders allowing the police to conduct polygraph/brain mapping test are challenged on the ground that the guidelines issued by the Hon'ble Apex Court in Selvi and Others vs. State of Karnataka1 are not followed and therefore, there is violation of Articles 20 (3) and 21 of the Constitution of India.
1 (2010) 7 SCC 263 -4- NC: 2024:KHC-K:9700 CRL.P No. 201352 of 2024
6. Learned High Court Government Pleader has contended that the petitioner himself has volunteered to perform brain mapping test on him and therefore, the impugned orders do not suffer from any illegality.
7. The Hon'ble Apex Court in Selvi's case (supra) has laid down the following guidelines to be adopted for conducting the "narcoanalysis technique" and the "Brain Electrical Activation Profile" test.
"(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.-5-
NC: 2024:KHC-K:9700 CRL.P No. 201352 of 2024
(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."
8. The main contention raised by the learned counsel for petitioner is that the accused should have been given access to a Lawyer while recording his consent and the implication of the test should have been explained to him, which is not done in the present case.
9. The material on record would reveal that on suspicion, case was registered against the petitioner on 15.08.2023. During investigation, petitioner gave a -6- NC: 2024:KHC-K:9700 CRL.P No. 201352 of 2024 consent letter dated 10.01.2024 to the Investigation Officer for polygraph/brain mapping test. The Investigation Officer (I.O.) filed requisition before the learned Magistrate along with the consent letter of the accused for permission to conduct the test. To confirm the authenticity of the consent letter, I.O. was directed to produce the accused. On 23.01.2024, accused voluntarily appeared before the learned Magistrate and expressed no objection for the polygraph and brain electrical oscillation signature profiling. Hence, the learned Magistrate granted permission for conducting the said test and also to intimate the Director, FSL Naganahalli, Kalaburagi.
10. For the reasons best known to the I.O., no polygraph test as directed was performed on the accused, on the other hand, he once again filed an application on 20.02.2024 before the learned Magistrate to give permission for polygraph and brain mapping test of the accused. The learned Magistrate vide impugned order dated 08.07.2024 allowed the said application and -7- NC: 2024:KHC-K:9700 CRL.P No. 201352 of 2024 directed the police to secure the accused and produce him before the FSL for the above said purpose.
11. Material placed on record reveal that, initially the accused gave a consent letter to the I.O., on 10.01.2024 to perform polygraph/brain mapping test as noted above. However, the learned Magistrate directed the I.O., to produce the accused before the Court. The accused appeared before the Court on 23.01.2024. It is stated that he gave his consent for polygraph and brain electrical oscillation signature profiling.
12. Firstly, it can be seen from the order dated 23.01.2024 that the accused was not knowing Kannada language and therefore, the Court and the staff explained to him in Hindi language and it is recorded in the order sheet that the accused has expressed no objection for conducting the test. However, what was explained to him is not forthcoming. Secondly, the accused voluntarily appeared before the learned Magistrate and he had no access to a lawyer when he is said to have given -8- NC: 2024:KHC-K:9700 CRL.P No. 201352 of 2024 consent. There is nothing to show that physical, emotional and legal implication of such a test was explained to him. Therefore, the order passed by the learned Magistrate allowing the application filed by the I.O., permitting to conduct polygraph and brain electrical oscillation signature profiling of the accused is not in consonance with the guidelines issued by the Hon'ble Apex Court in the above noted decision.
13. The learned Sessions Judge while rejecting the revision petition has observed that the order dated 23.01.2024 was passed by the learned Magistrate in the open Court and the consent of the accused was obtained by explaining in Hindi language with which he was acquainted and on that day a learned counsel was engaged by the petitioner.
14. Order dated 23.01.2024 passed by the learned Magistrate do not indicate anywhere that a counsel was representing the petitioner. Further, I.O., did not conduct any test as per the said order, on the other hand, one -9- NC: 2024:KHC-K:9700 CRL.P No. 201352 of 2024 more application was filed on 20.02.2024, to which learned counsel appearing for the petitioner filed objection, which shows that to the subsequent application where the accused was represented by an Advocate, accused did not give consent for the test. This Court is of the considered view that the procedure followed by the learned Magistrate is not in accordance with law and it is contrary to the guidelines issued in the decision in Selvi's case (supra). The impugned orders are therefore liable to be set aside. Accordingly, the following:
ORDER Criminal Petition is allowed.
The order passed in Crl.RP No.20/2024 dated 09.10.2024 by the Court of Principal District and Sessions Judge at Bidar and the order dated 08.07.2024 passed in Crime No.131/2023 by the II Additional Senior Civil Judge and JMFC, Bidar, are set aside.
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NC: 2024:KHC-K:9700 CRL.P No. 201352 of 2024 This order will not preclude the Investigation Officer to file a fresh application, which shall be considered by the learned Magistrate in accordance with law.
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(MOHAMMAD NAWAZ) JUDGE SWK,HB List No.: 1 Sl No.: 31 CT:SI