Bombay High Court
Sampatrao Rajeshwarrao vs State Of Maharashtra on 15 September, 2008
Author: A.H.Joshi
Bench: A.H.Joshi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Application No.2234 of 2007
With
Criminal Application No.405 of 2008
With
Criminal Application No.1240 of 2008
With
Criminal Application No.1241 of 2008
With
Criminal Application No.1275 of 2008
With
Criminal Application No.866 of 2008
[a] Criminal Application No.2234 of 2007 :
1. Sampatrao Rajeshwarrao
Arvelli [Yerawalli],
aged about 48 years,
occupation : cultivator,
resident of Ankisa,
Tah. Sironcha,
Distt. Gadchiroli.
2. Shankar Mallaya Avula,
aged - major,
occupation cultivator,
resident of Ankisa,
Tah. Sironcha,
Distt. Gadchiroli. .... Applicants.
Versus
State of Maharashtra,
through Police Station Officer,
Police Station, Asarali,
Tah. Sironcha,
Distt. Gadchiroli. .... Respondent.
*****
Mr. Anil Mardikar, Adv., for the applicants.
::: Downloaded on - 09/06/2013 13:51:37 :::
2
Mr. V.A. Thakre, Additional Public Prosecutor for
respondent-State.
*****
[b] Criminal Application No.405 of 2008 :
Padmakar Shriram Puri,
aged 44 years,
occupation - service,
resident of Gosawi Colony,
Sut Girni Road,
Amravati. .... Applicant.
Versus
1. State of Maharashtra,
through Anti-corruption
Bureau, Pune,
Camp at Amravati,
through Dy. S.P., CID.
2. State of Maharashtra,
through P.S.O. Kotwali
Police Station,
Amravati. .... Respondents.
*****
Mr. Anil Mardikar, Adv., for the applicant.
Mr. V.A. Thakre, Additional Public Prosecutor for
respondents-State.
*****
[c] Criminal Application No.1240 of 2008 :
Jai Hanumantrao Dawale,
aged 40 years,
occupation - Peon in General
Hospital, Amravati,
resident of Shyam Nagar,
Amravati. .... Applicant.
Versus
::: Downloaded on - 09/06/2013 13:51:37 :::
3
1. State of Maharashtra,
through Anti-corruption
Bureau, Pune,
Camp at Amravati,
through Dy. S.P., CID.
2. State of Maharashtra,
through P.S.O. Kotwali
Police Station,
Amravati. .... Respondents.
*****
Mr. Anil Mardikar, Adv., for the applicant.
Mr. V.A. Thakre, Additional Public Prosecutor for
respondents-State.
ig *****
[d] Criminal Application No.1241 of 2008 :
Abhiman son of Marotrao
Dapurkar,
aged 50 years,
occupation - Peon in District
Women's Hospital, Amravati,
resident of Laxminarayan Nagar,
Amravati. .... Applicant.
Versus
1. State of Maharashtra,
through Anti-corruption
Bureau, Pune,
Camp at Amravati,
through Dy. S.P., CID.
2. State of Maharashtra,
through P.S.O. Gadge Nagar
Police Station,
Amravati. .... Respondents.
*****
Mr. Anil Mardikar, Adv., for the applicant.
Mr. V.A. Thakre, Additional Public Prosecutor for
::: Downloaded on - 09/06/2013 13:51:37 :::
4
respondents-State.
*****
[e] Criminal Application No.1275 of 2008 :
Smt. Pratibha Nilkanth Potdar,
aged major,
occupation - service,
resident of Amravati. .... Applicant.
Versus
1. State of Maharashtra,
through Anti-corruption
Bureau, Pune,
Camp at Amravati,
2.
through Dy. S.P., CID.
State of Maharashtra,
through P.S.O. Kotwali
Police Station,
Amravati. .... Respondents.
*****
Mr. Anil Mardikar, Adv., for the applicant.
Mr. V.A. Thakre, Additional Public Prosecutor for
respondents-State.
*****
[f] Criminal Application No.866 of 2008 :
Chandrashekhar son of Nilkanth
Bhongade,
aged about 45 years,
occupation - service,
resident of Khaparde
Bagicha,
Amravati, Tah. & Distt.
Amravati. .... Applicant.
Versus
1. State of Maharashtra,
::: Downloaded on - 09/06/2013 13:51:37 :::
5
through Anti-corruption
Bureau, Pune,
Camp at Amravati,
through Dy. S.P., [CID].
2. State of Maharashtra,
through Police Station
Officer, Kotwali
Police Station,
Amravati. .... Respondents.
*****
Mr. V.M. Deshpande, Adv., for applicant.
Mr. V.A. Thakre, Additional Public Prosecutor for
respondents-State.
ig *****
CORAM : A.H.JOSHI, J.
Date : 15th September,2008.
ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith and heard finally by consent of parties.
2. In all these matters, a common Question of Law is agitated. Therefore, though the applicants are involved in various offences, the issue, in question, arising from orders of different Courts is one and the same. Hence, on hearing together, applications are decided by this common order.
3. By impugned orders, the permission for Narco ::: Downloaded on - 09/06/2013 13:51:37 ::: 6 Analysis, Brain Mapping and other analogous tests has been granted. The said permission is under challenge.
4. Reliance is placed on copy of proceedings of record of Hon'ble Supreme Court in the case of K. Venkateswara Rao Vs. State of A.P. [Coram S.B. Sinha & Markandey Katju, JJ.] dated 20th November, 2006, and copy of Order dated 29th February, 2008 passed by this Court in Criminal Writ Petition No. 2429/07 [R.M. Savani Vs. State of Mah.] [Coram : Bilal Nazki & S.A. Bobde, JJ.].
5. Purpose of reliance is that a broader question as to whether in absence of consent/willingness of the accused/witness, who is subjected to the Narco Analysis, Brain Mapping or similar tests, the same should be undertaken by order of Court.
6. The record of proceedings of Hon'ble Supreme Court indicates that in that case, the learned Senior Advocate appearing for the prosecution has made a statement of suspending the tests.
7. Admittedly, there is no stay order in the said case or a general stay order prohibiting undertaking of said tests.
::: Downloaded on - 09/06/2013 13:51:37 ::: 78. In the proceedings before Division Bench of this Court as well, there is no stay granted in particular, i.e., the said case, or in general.
9. The matters at hand are of general importance and larger interest. Article 20 and and Article 19, which guarantee fundamental right and are resorted to as a shield for seeking protection against alleged tests, which is not a prima facie physical invasion, come but within an intellectual invasion, the bracket of will reasonable restriction on fundamental rights.
10. Moreover, this question is not finally ruled so far, and upon being ruled, will be governed by effect of Narco Analysis or Brain Mapping, or all tests of like nature when conducted.
11. Here is a tie between silencing constitutionally available individual right and prerogative of State to investigate and use, for that purpose, modern medico-
forensic aides for larger good of larger number of persons
- the community on the whole whose such individual is a member.
::: Downloaded on - 09/06/2013 13:51:37 ::: 812. In larger interest, it is felt necessary that this modern scientific invention based on anesthetic drugs already in use over decades and electro gram and similar systems already used for over decades and safe enough needs to be allowed, as a aid in the process of investigation and retrieval of data and information stored in the memory of the person concerned.
13. In this background, larger interest should outweigh the individual liberties and fundamental and balance can be struck by considering the perspective of rights reasonable restrictions.
14. Hence in absence of a direct prohibitory precedent or order, this Court finds no reason as to why the tests sought to be undertaken through the impugned orders should be prohibited.
15. Legal consequences of the results flowing therefrom, such as admissibility of evidence procured by such tests etc., would be taken care of by Trial Court in the course of process of trial.
JUDGE
-0-0-0-0- |hedau| ::: Downloaded on - 09/06/2013 13:51:37 ::: 9 ::: Downloaded on - 09/06/2013 13:51:37 :::