Rajasthan High Court - Jodhpur
Praveen Choudhary vs State Of Rajasthan (2023/Rjjd/009509) on 12 April, 2023
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2023/RJJD/009509]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1090/2023
Praveen Choudhary S/o Shishupal Singh, Aged About 51 Years,
R/o House No. 72, Sector 07 New Power House Road, Shastri
Nagar, Jodhpur.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Nirmala Saraswat W/o Raman Bihari Saraswat, R/o 1-C-
15, Kudi Bhagtasani Housing Board, Jodhpur.
----Respondents
For Petitioner(s) : Mr. DLR Vyas
For Respondent(s) : Mr. Vikram Sharma, PP
Mr. Rajesh Joshi, Sr. Adv assisted by
Mr. Vineet R. Dave
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order REPORTABLE 12/04/2023 The instant misc. petition has been preferred by the petitioner accused challenging the order dated 10.1.2023 passed by learned Additional Chief Metropolitan Magistrate No.1, Jodhpur Metropolitan in relation to the FIR No. 655/2022 registered at the Police Station Kudi Bhagtasani, Jodhpur, whereby the application filed by the petitioner for having narco analysis, brain mapping and polygraph tests conducted upon the petitioner, has been rejected.
Brief facts of the case are that the complainant filed a written report on 13.11.2022 to the effect that on 26.09.2022 at about 6 PM, the petitioner forcibly entered into the house of the (Downloaded on 13/04/2023 at 10:00:30 PM) [2023/RJJD/009509] (2 of 5) [CRLMP-1090/2023] complainant and demanded sum of Rs. 60 lacs and on 12.11.2022, the accused petitioner threatened to kill him.
On the basis of this information, an FIR No. 655/22 was registered at the Police Station Kudi Bhagtasani for the offences under Sections 144, 452, 386 and 387 I.P.C. and investigation commenced.
It is the case of the petitioner that he has been falsely implicated in this case and no such incident has happened. The complainant owed money from the petitioner which he had loaned her for purchasing crusher so also mining lease. The complainant party asked the petitioner to come home for clearing the debt. However, in order to grab the money, the complainant lodged this false and fabricated FIR against the petitioner.
In order to prove his innocence, he filed an application before the learned Additional Chief Metropolitan Magistrate NO.1, Jodhpur Metropolitan with the prayer that he is ready and willing to undertake Narco Analysis, Polygraph test and Brain mapping and the Investigating Officer be directed to have the narco analysis, brain mapping and polygraph tests conducted upon the petitioner so that the truth of the matter could be brought out. The said application came to be rejected vide order dated 10.01.2023.
Learned counsel for the petitioner argued that when the accused himself volunteers to undergo the aforesaid tests, then in order to establish his innocence, the same can be permitted. He placed reliance on the observations made by the Hon'ble Apex Court in the case of Smt.Selvi Vs. State of Karnataka reported in AIR 2010 SC 1974 and contended that the Hon'ble Apex Court in (Downloaded on 13/04/2023 at 10:00:30 PM) [2023/RJJD/009509] (3 of 5) [CRLMP-1090/2023] the aforesaid case has held that a person cannot be compelled to undergo these tests as the techniques are violative of the right against self-incrimination. However, the Hon'ble Apex Court in the aforesaid case has approved that the lie detector test can be administered on the basis of the consent of the accused and an option should be given to the accused as to whether he wishes to avail such test. Learned counsel also placed reliance on order passed by co-ordinate Bench of this Court in the case of Moti ram Vs. State reported in (2013) 2 CriLR 1045 wherein, this Court permitted the accused for being subjected to narco analysis, brain mapping and polygraph test.
Learned counsel submits that Sections 53 & 54 of the Cr.P.C. empower a Magistrate to direct such examination of the accused and when the accused is himself volunteering for the examination, there is no reason to deny such a prayer. He thus prayed that the misc. petition be accepted and the Investigating Agency be directed to conduct the aforesaid tests upon the accused petitioner in the presence of his lawyer so that the truth of the matter can be brought on record.
Learned Public Prosecutor and the learned counsel appearing for the complainant vehemently opposed the arguments advanced by the learned counsel for the petitioner.
Heard learned counsel for the parties and perused the material on record.
Modern techniques like polygraph, narco-analysis, and brain mapping tests are non-invasive methods that detect deception without causing physical or mental injury to the subject. Scientific (Downloaded on 13/04/2023 at 10:00:30 PM) [2023/RJJD/009509] (4 of 5) [CRLMP-1090/2023] techniques are found to be necessary for proving the guilt as well as the innocence of the accused.
The restriction which has been imposed in Selvi's case (supra) is on the right of the prosecuting agency to subject the accused to undergo these tests. These tests have been held to be violative of right of self-incrimination. However, in the present case, the accused himself is insisting for the tests to be conducted upon himself in the exercise of his right to defend. Obviously in such a situation, conducting these tests upon the accused would not be an infringement of the right against self- incrimination. Therefore, in the opinion of this Court, there cannot be any hurdle in allowing the prayer of the accused for being subjected to the narco analysis, brain mapping and polygraph tests so that the accused can be provided with an opportunity of defending himself.
Accordingly, the instant misc. petition is hereby allowed. The order dated 10.1.2023 passed by the learned Additional Chief Metropolitan Magistrate No.1, Jodhpur Metroplitan is quashed and the Investigating Agency is directed to arrange for the aforesaid three tests to be conducted in light of the following observations made by the Hon'ble Apex Court in the case of Selvi (supra):
(i) The Tests shall be administered except on the basis of consent of the accused. An option shall be given to the accused whether he wishes to avail such test.
(ii) If the accused volunteers for the 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 the trial court.(Downloaded on 13/04/2023 at 10:00:30 PM)
[2023/RJJD/009509] (5 of 5) [CRLMP-1090/2023]
(iv) During the hearing before the trial court, the accused 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 trial court shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
(vii) The actual conducting of the Tests shall be done by an independent agency (such as a hospital) and shall be conducted in the presence of a lawyer.
(viii) The prosecution and the defence shall file their respective questionnaires and the trial court shall approve the questions which are to be put to the accused in the three tests.
(ix) A full medical and factual narration of the manner of the information received must be taken on record.
(MANOJ KUMAR GARG),J 21-BJSH/-
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