Delhi District Court
State vs . Surender Sehlot on 28 February, 2009
: 1 :
IN THE COURT OF SHRI DIG VINAY SINGH, ACMM-03, ROHINI, DELHI
STATE VS. SURENDER SEHLOT
FIR No.132/08
U/S. 420/467/468/471/120-B IPC
P.S. EOW
ORDER
Pre: IO Inspector Keshav Mathur with Police file with Ld. APP for State Sh.
Pradeep Gangwar assisted by Ms. Anjana Prabhakar, advocate for complainant Counsel Sh. Jatan Singh for accused/non-applicant. Arguments from both sides heard.
1. This is an application seeking permission for Narco analysis test on the accused Surender Sehlot, moved by the Investigating Agency.
2. The accused has opposed the present application vehemently and, it is argued that without consent of accused this test cannot be conducted as it would be violative of Article 20 (3) of the Constitution of India and also Section 161 (2) of Cr. P. C. It is argued that body of accused cannot be invaded without his consent more particularly in view of deteriorating health of the accused. It is also argued that accused at present is in J/C and allowing application for narco analysis would tantamount to subjecting the accused in Police Custody which cannot be done u/s 167 Cr. P. C. since more than 15 days from the date of his first remand has elapsed. It is also argued that question of narco analysis test is pending before a larger Bench in Hon'ble Supreme Court and a large number of such petitions have been clubbed by Hon'ble Supreme Court therefore in a way there is a stay on such tests and no such test can be conducted. It is also argued that the accused was taken to total 4 days Police custody and nothing could be extracted and all the other evidence which is documentary in nature is in possession of Investigating Agency and also identity of all the accused are known and therefore Narco analysis is not justified even on the facts of the case.
3. Ld counsel for the accused in support of his contentions has placed reliance upon the case of Jeetu Bhai Babu Bhai Patel Vs. State of Gujarat (2005) 10 SCC 545. In the said case, this question of narco analysis was Order in State Vs. Surender Sehlot FIR no. 132/08 / PS EOW / dtd. 28/2/09 pg 1 of 5 : 2 : not addressed in view of submission by the State that in that case test would not be conducted without consent of accused, therefore, the said case is of no help to the accused. Ld. Counsel for the accused argued that the said judgement would show that Hon'ble Supreme Court was of the view that consent is necessary. No such observation was made in the said judgement rather the question was left open to be decided in appropriate case. Ld. counsel for the accused then argued that in SLP Cri No. 5846/06 dated 20-11-2006, SLP Cril no. 6093/07 dated 05-10-2007 the Hon'nle Supreme Court stayed the conducting of narco analysis test in other cases. Operation of stay in other cases cannot be read as a general embargo in all the investigations to be conducted throughout India in which narco analysis is to be conducted. These orders are also of no help to the accused.
4. Ld. APP for the State has relied upon the cases of State of Orissa Vs. Devender Nath Padi AIR 2005, SC 359 and Chandan Panna Lal Jaiswal Vs. State of Gujarat 2004, Cril L J 2992 but the said judgements are not on the question of Narco analysis and is therefore of no help to the Investigating Agency.
5. Ld. APP for the State also relied upon the case of Noor Mohd. Jamal Bhai Latiwala Vs. State of Gujarat Cri. M A No. 5326 to 5338 of 2003 by Hon'ble Gujarat High Court decided on 25-03-2004 on para no. 23; K K Dhawan Vs. State 1999 (48) DRJ 43 in para no. 16; Prem Kumar Parmar Vs. State 1990 (2) Crimes 384 on para no. 7; State of Andhra Pradesh Vs. Ina Puri Padma 2008 Cri L J 3992; Santokh Ben Sarman Bhai Jadeja Vs. State of Gujarat 2008 Cri L J 68; Rojo George Vs. DSP 2006 (2) KLT 197; Dinesh Dalmiya Vs. State 2006 Cri L J 401; Arun Gulab Gawli Vs. State of Maharastra 2006 Cri L J 2615; Smt Selvi Vs. State 2004 (7) Karnatak Law Journal 501; Rama Chandra Ram Reddy Vs. State of Maharastra Cril Writ Petition 1924 of 2003 decided by Bombay High Court on 05-03-2004 and lastly on the case of Shailender Sharma Vs. State 2009 (1) CCC (HC) 236 from Delhi High Court.
6. These judgments have been cited to argue that not only various High Courts have come to the conclusion that conducting narco analysis test on an accused is not violative of Article 20 (3) of the Constitution of India or any other provision but also it is safe. Also it is argued that narco analysis can be conducted even in the facts and circumstances of the Order in State Vs. Surender Sehlot FIR no. 132/08 / PS EOW / dtd. 28/2/09 pg 2 of 5 : 3 : present case and the court should not interfere in the manner of investigation.
7. The arguments raised by the accused that narco analysis test cannot be conducted at all since it would violate the prohibitive intent of Article 20 (3) of the Constitution of India, or Section 161 of Cr. P. C. or that consent is necessary, were all dealt with in detail by Hon'ble Delhi High Court very recently in the case of Shailender Sharma (Supra) which was decided on 14-11-2008. In the said judgment it was held that it does not violate the protection given in Article 20 (3) of the Constitution of India as also that it is conducted in proper medical supervision. The judgment in Shailender Sharma case is binding on this court. Admittedly, there is no stay specifically on this judgment by Hon'ble Supreme Court. Although it is argued that the said judgment is under challenge in Hon'ble Supreme court but since there is no stay brought to the notice of this court therefore that judgment is binding on this Court. The judgment in Shailender Shara's case replies to almost all the contentions raised by the accused.
8. So far as the contention that asking the accused to go through narco analysis test would tantamount to send him to police custody, it does not hold any force since a narco analysis test can be conducted even when an accused is in Judicial custody and merely because during Judicial Custody narco analysis test is permitted to be conducted that does not amount to sending the accused to police custody.
9. Therefore legal position as on today is that a narco analysis test can be conducted and there is no violation of Article 20 (3) of the Constitution of India and Section 161 Cr. P. C. Consent of accused is also immaterial since in the case cited above wherever narco analysis test was conducted, it was without consent. It is also well settled now that even in grave economic offences a narco analysis test can be conducted if the facts and circumstances of the case justifies such a narco analysis test to be conducted.
10.The question, however which still remains to be addressed in this case is, whether in the facts and circumstances of the case narco analysis test of the accused is justified or not.
11.Brief facts of this case are that it is alleged against the accused that he forged one Will dated 25-03-2006 purportedly executed by deceased Lt.
Order in State Vs. Surender Sehlot FIR no. 132/08 / PS EOW / dtd. 28/2/09 pg 3 of 5 : 4 : Col T. C. Prabhakhar. Vide the said Will allegedly the deceased bequeathed all his movable and immovable properties in favour of the applicant who is not even related to the deceased. The immovable properties include three properties located in posh colonies in New Delhi. Son of the deceased has lodged the present complaint. It is also the case of the Investigating Agency that the alleged forged Will in original was filed by the accused in a probate petition in Tis Hazari seeking probate in his favour. Before arrest of accused, the said Will was sent to handwriting expert and a report was received from handwriting expert which is not in favour of investigating agency. It is also informed that the Ld. Probate Court declined an application by the Investigating agency to send the original Will once again to handwriting expert.
12.The Will i.e. the alleged forged document is available on the probate file and the investigating agency has already obtained its certified copy. As mentioned above even handwriting expert's opinion has been sought which has been received and which do not support the investigating agency. Besides the accused who is in custody, the investigating agency suspects the two witnesses who allegedly witnessed the execution of Will. Those two witnesses have already obtained protection from Hon'ble High Court against their arrest. Thereby meaning that the identity of the suspects/accused is already in the knowledge of the investigating agency. The forged document is also available which is not to be recovered. The accused was admittedly kept in police custody for four days. In such circumstances, this court do not find any sufficient reason as to why permission should be granted for conducting narco analysis on the accused. In the application for narco analysis by the IO the ground mentioned for seeking such a permission is that the accused is not coming out with the truth and he was giving evasive replies regarding preparation of Will and names of other conspirators. A case of forgery like the present one, is primarily based on the document itself and also on the witnesses to the execution of document. When these things are already available and nothing could be found by the investigating agency during police custody of the accused for as many as 4 days, I do not see any justification as to what purpose would be served by conducting narco analysis. An investigating agency cannot say that other conspirators are to be found without there being any basis to show that any other person Order in State Vs. Surender Sehlot FIR no. 132/08 / PS EOW / dtd. 28/2/09 pg 4 of 5 : 5 : is even involved. What truth can be taken out from narco analysis when the document is available, specimen handwriting and signature of accused has been obtained, admitted signatures of deceased are available? In a case of forgery what is important for the investigating agency is to show as to whether the document are forged or not and if yes, who forged it. The manner of forgery i.e. Which pen was used or which typewriter or computer was used and how the forgery was conducted are immaterial. For these things narco analysis test cannot help at all. It is not a case of murder, rape or terrorist activities or any other heinous offence which can justify conducting narco analysis on the accused. It is also not a blind case where the investigating agency has absolutely no clue about the offender. Rather the evidence which is basically documentary in nature and oral in nature is already available. There is no reasonable basis shown to me as to other persons involvement, if any. In case such narco analysis application on the ground that truth is to be found or involvement of other accused is to be learnt, then I am afraid in every criminal case howsoever small case it may be, narco analysis test will have to be conducted simply because police want to find out truth and involvement of unknown persons.
13.In the given facts and circumstances, this court is not convinced that narco analysis test in any manner is justified. The application for narco analysis test is therefore dismissed. The copy of this order be given dasti.
ANNOUNCED IN OPEN COURT ON (DIG VINAY SINGH)
28.02.2009 ACMM-03(EOW)
ROHINI / DELHI
Order in State Vs. Surender Sehlot FIR no. 132/08 / PS EOW / dtd. 28/2/09 pg 5 of 5