Allahabad High Court
Param Singh vs State Of U.P. And Another on 9 February, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- CRIMINAL REVISION No. - 3055 of 2022 Revisionist :- Param Singh Opposite Party :- State of U.P. and Another Counsel for Revisionist :- M J Akhtar,Sr. Advocate Counsel for Opposite Party :- G.A.,Pradeep Kumar Hon'ble Raj Beer Singh,J.
1. Heard V.M. Zaidi, learned Senior Advocate assisted by Sri M.J. Akhtar, learned counsel for the revisionist, Sri Pradeep Kumar, learned counsel for the opposite party No.2 and learned A.G.A. for the State.
2. The present criminal revision has been preferred against the order dated 05.05.2022, passed by the learned Additional District & Sessions Judge/Special Judge (POCSO Act), Court No.1, Amroha in Special Session Trial No. 234 of 2022 (State vs. Bhanu @ Bhanu Pratap Singh), arising out of Case Crime No. 187 of 2020, under Sections 302,201 IPC, P.S. Amroha Dehat, District Amroha.
3. It has been argued by the learned Senior Counsel that the impugned order is against facts and law and thus, liable to be set aside. Referring to facts of the matter, it was submitted that during investigation, the Investigating Officer has found that opposite party No.2 was involved in committing murder of deceased Varun and he was charge-sheeted by the police but the Investigating Officer of the crime branch failed to make fair investigation of the case and collect evidence regarding other persons involved in the incident. From postmortem report, it is clear that a number of injuries were found on the body of deceased and he died due to strangulation/asphyxia and thus, it clearly shows that some more persons were also involved in the incident, along with opposite party No.2 in commission of murder of deceased but the Investigating Officer has submitted charge-sheet only against the opposite party No.2. Learned Senior counsel further submitted that Narco Analysis Test is part of fair investigation and it was in the knowledge of opposite party No.2 that which other accused persons were involved in the incident and for that purpose the Narco Analysis of the opposite party No.2 was necessary. During further investigation of the matter, the Investigating Officer has made an application to the trial Court for Narco Test of opposite party No.2, which has been rejected by the Court below in an arbitrary manner. In the absence of fair investigation, there cannot be a fair trial, hence the Narco Test of opposite party No.2 is necessary. The Court below has misread and misinterpreted the decision of Hon'ble Apex Court and the application of Investigating Officer for Narco Test was illegally rejected. Referring to facts of the matter, it was submitted that the impugned order is liable to be set aside.
4. Learned A.G.A and learned counsel for the opposite party No.2 have opposed the revision. Learned counsel for the opposite party No.2 argued that in view of law laid down in case of Selvi & Ors vs State Of Karnataka & Anr AIR 2010 SC 1974, (2010) 7 SCC 263, a Narco Analysis Test cannot be conducted against the wishes of such person and thus, there is no illegality or perversity in the impugned order.
5. I have considered the rival submissions and perused the record.
6. Perusal of record shows that the informant has lodged first information report against the opposite party No.2/accused Bhanu, alleging that on 27.07.2020 accused Bhanu has taken away his son Varun with him and thereafter he did not return. It appears that later on dead body of deceased was found and after investigation police submitted charge-sheet against the opposite party No.2 Bhanu under Section 302/201 IPC. During further investigation, the Investigating Officer moved an application for Narco Analysis Test of accused/opposite party No.2 Bhanu alleging that it appears that some more persons were involved in the incident and the accused Bhanu has not cooperated in investigation and thus, permission may be granted for Narco Analysis of accused Bhanu. The said application was opposed on behalf of opposite party No.2 accused Bhanu alleging that charge-sheet has already been submitted against him and that he is being pressurized for Narco Analysis Test. The said application was rejected by the Court below vide impugned order dated 05.05.2022. Here it may be observed that in case of Selvi & Ors vs State Of Karnataka & Anr (supra) after a detailed discussion, the Hon'ble Apex Court has held as under:
222. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of 'substantive due process' which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of 'ejusdem generis' and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to 'cruel, inhuman or degrading treatment' with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the 'right to fair trial'. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the 'right against self-incrimination'.
223. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872. 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:
(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.
(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.
7. In view of aforesaid case law, it is apparent that no individual should be forcibly subjected to such test like Narco Analysis Technique. In view of this binding precedent of Hon'ble Apex Court, it cannot be said that impugned order is suffering from any illegality or perversity or error of jurisdiction so as to require any interference by this Court.
8. The revision is dismissed.
Order Date :- 9.2.2023 A. Tripathi