Calcutta High Court (Appellete Side)
Mathew Samual vs State Of West Bengal on 14 November, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
1
November 14,
2017
R.C.
W.P. 26431 (W) OF 2017
Mathew Samual
Vs.
State of West Bengal
and Ors.
=-=-=-=-=-
Mr. Bikash Ranjan Bhattacharya
Sr. Advocate
Samim Ahmed,
...for Petitioner
Mr.Kishore Datta, Ld.A.G.
Mr.Abhratosh Majumdar, Ld. AAG
T.M. Siddiqui
Mr. Nilotpal Chatterjee
Mr. Avra Majumdar,
...for State
The petitioner seeks a change in the investigative authority
from the present one to that of the Central Bureau of Investigation
(CBI). The petitioner also seeks a declaration with the police
authorities are harassing the petitioner in respect of the Muchipara
Police Station case no.52 of 2016. The petitioner seeks transfer of
such case to the C.B.I.
Learned senior advocate appearing on behalf of the writ
petitioner submits that, the petitioner has been unduly harassed in
respect of the concerned police case. The petitioner was called to the
police station at least five times for the purpose of interrogation. The
petitioner does not ordinarily reside in Kolkata. Instead of putting
questions which are relevant to the investigation in the police case,
the petitioner has been repeatedly asked questions relating to a Scam
that the petitioner has exposed. According to the learned senior
advocate for the petitioner, the police authorities have tried to
intimidate the petitioner into making statements with regard to such
2
Scam exposed by the petitioner. The questioning done by the present
investigative authority is beyond the scope of the police case. The
police case itself is suspect. There is no material for the purpose of
initiation of the police case. The same has been done as a counter
blast to the exposure of Scam made by the petitioner. Therefore, the
Court should intervene and direct a particular mode of investigation
in order to save the petitioner from such harassment.
In the course of hearing of the writ petition on the last date of
the hearing, the attention of the learned senior advocate for the
petitioner was drawn to the various annexures of the writ petition
and to the claim of the writ petitioner that he was willing to undergo
a narco analysis test. On the last date of hearing, the learned
Advocate General appearing for the respondents submitted that, the
investigating authority is exploring the possibility of a narco analysis test of the petitioner.
In view of such common meeting ground in the investigative process, query was put to the petitioner as to whether he volunteers to undergo a narco analysis test or not, on the previous date of hearing. Learned senior advocate for the petitioner wanted time to take instructions, which was granted.
In course of hearing today, learned senior advocate for the petitioner submits that, although the petitioner is agreeable to undergo a narco analysis test, it is the duty of a senior advocate, as an officer of the Court, to bring to the notice of the Court the law relating to narco analysis test as laid down by the Hon'ble Supreme Court in the Case reported at 2010 (7) Supreme Court cases 263 (Selvi-Vs-State of Karnataka). He refers to various paragraphs of such judgment, particularly to paragraphs 22, 42, 48, 49, 50, 66, 71, 102, 117,122, 132, 139, 146, 227, 262, 264 and 265 thereof amongst others. He submits that, the usefulness of a narco analysis test has been doubted. Moreover, the Supreme Court has held that 3 administration of narco analysis test violates the right against self- incrimination as enshrined in Article 20 (3) of the Constitution of India..
On instructions, the learned senior advocate for the petitioner submits that, the petitioner is willing to undergo a narco analysis test. He, however, submits that, the safeguards enumerated in Selvi (supra) should be followed in undertaking such narco analysis test. He submits that, the writ petition should be kept pending so as to facilitate the investigating authority to submit a report of such examination to this Court.
The learned Additional Advocate General appearing for the respondents submits that, the writ petition is not maintainable. An accused in a criminal proceeding cannot choose the investigating authority. The principal prayer of the writ petition is not available to the writ petitioner. The petitioner is an accused in the concerned police case. In such police case, he is being investigated upon as an accused. He has been called to the police station for the purpose of interrogation. The petitioner is not cooperating in the investigation. The petitioner has not been arrested in spite of the investigating authority having the right to do so in view of the non-cooperation by the petitioner. The petitioner did not turn up on the last date fixed for the purpose of interrogation. The petitioner has, however, filed the writ petition. The State has not taken any steps in view of the pendency of the writ petition. In the event the Court is pleased to allow a narco analysis test, the State has no objection with regard thereto. If the writ petition is kept pending, then an opportunity to file affidavit should be granted to the respondents, provided the point of maintainability of the writ petition is kept open to be adjudicated upon.
I have heard the rival contentions of the parties and the materials made available on record.
4The petitioner is an accused in the concerned Muchipara Police Station case. Such police case is being investigated upon. The petitioner was called for the purpose of investigation for five days before the local police station. The petitioner had attended such investigation. According to the investigating authority, the petitioner is not cooperating and, therefore, the investigation is not making further headway. The investigating authority is of the view that the petitioner should undergo a narco analysis test. Selvi (supra) is of the view that, compulsory administration of narco analysis test violates the right against self-incrimination. It violates the scope of Article 20 (3) of the Constitution of India and that the application under Article 20(3) of the Constitution of India extends to the investigative stage in criminal cases. Read with Section 161 (2) of the Code of Criminal procedure, 1971, it protects the accused during the investigation also. However, Selvi (supra) is of the view that, voluntary administration of narco analysis test in the context of criminal justice is permissible, provided the safeguards are adhered to with regard thereto. Selvi (supra) lays down the safeguards to be followed. One of the safeguards is that, there has to be a voluntary act of the accused to undergo such test. Such consent of the accused has to be recorded before a judicial Magistrate.
This is a writ petition. In the writ petition, the petitioner agrees to undergo narco analysis test. The State is willing to do so far as the petitioner is concerned.
In view of the Selvi (supra) since a voluntary narco analysis test is possible and since the petitioner has expressed his willingness to undergo such test in Court, it would be appropriate to permit the parties to the litigation to explore such possibility, in accordance with the provisions of Selvi (supra) before the appropriate forum.
5The issues raised in the writ petition are such that an opportunity to file affidavits should be granted to the respondents without prejudice to the point of maintainability of the writ petition.
Let affidavit in opposition be filed within four weeks from date, reply, if any, thereto be fled within two weeks thereafter, without prejudice to the rights and contentions of the parties including the point of maintainability.
List the writ petition under the same heading in the monthly list of January, 2018.
This order will not be construed as a direction upon the learned Magistrate, who is in seisin of the proceedings. The consent of the petitioner to undergo a narco analysis test must be in terms of the guidelines of Selvi (supra). It is open to the learned Magistrate to pass such orders as he deems appropriate in the facts of the case. The learned Magistrate will not be influenced by any of the observations made in this order in any manner whatsoever.
The learned advocate for the petitioner expresses an apprehension that the evidence so collected in the narco analysis test may be disclosed by the investigating officer to the prejudice of the petitioner and the trial. The learned Additional Advocate General appearing for the respondents submits that, the evidence, if any, collected in the narco analysis test, if the petitioner undergoes the same, would be guided by the relevant law and the directions of the learned Magistrate concerned.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
( DEBANGSU BASAK, J. )