Gujarat High Court
Anilbhai Somabhai Macwan vs State Of Gujarat & 3 on 9 October, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/3132/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 3132 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India or any order made thereunder ?
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ANILBHAI SOMABHAI MACWAN....Applicant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR KIRTIDEV R DAVE, ADVOCATE for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1 - 4
MR KL PANDYA, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 09/10/2015
ORAL JUDGMENT
By this writ-application under Article 226 of the Constitution of India, the petitioner, the father of the deceased, has prayed for the following reliefs:-
(A) To admit the petition;
(B) To direct the respondent No.1 to hold proper investigation in AD No.
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26 of 2011 of Nadiad (Rural) Police Station, dated 28.4.2014, through proper Higher Officer or it be ordered to be investigated by some other Agency as the Court may deem if fit;:
2. The facts of this case may be briefly stated as under:-
2.1 It is the case of the petitioner that his son, named Sumit, studying in the New English School at Nadiad left for school in the morning on 15.11.2011, in his motorcycle, but thereafter did not return to home. His dead-body was found from the Saloon Talavadi (Water reservoir), and it is the Police who informed the petitioner about the recovery of the dead-body of his son. The recovery of the dead-body led to registration of A.D No. 26/11 with the Nadiad (Rural) Police Station.
2.2 It is the case of the petitioner that his son was murdered by someone, and although he has been insisting with the Police that his FIR should be registered, yet the Police for some reason or the other, has thought fit not to register the FIR and proceed further with the investigation of the A.D No. 26/11 under Section 174 of the Code of Criminal Procedure, 1973.
2.3 It appears that in the course of the investigation of the A.D referred to above, the Investigating Officer preferred an application before the Judicial Magistrate First Class, Nadiad, with a prayer that he may be permitted to subject six persons named in the application to polygraph test or a lie-detector test. In the application seeking necessary permission from the learned Magistrate, the officer concerned made himself very clear that he was not sure whether the case was one of homicidal death, accidental death or suicidal death. The postmortem report did not reveal any injuries on the body of the deceased. In such circumstances, he requested that if the persons named in the application were subjected to lie-detection test, then probably he may get some clue, on the basis of which the death of the son of the petitioner under mysterious circumstances could be solved. He also made himself clear in the application that the persons named therein, according to the petitioner, could be the suspects.Page 2 of 7
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2..4 The learned Magistrate, vide order dated 28.4.2014, rejected the application of
the Detective Police Inspector, CID Crime, Nadiad, on the ground that the persons named in the application refused to give their consent for such lie-detection test and without the consent of those persons, they cannot be subjected to any lie-detection test..
2.5 Being dissatisfied with the impugned order passed by the learned Magistrate and also with the manner in which the investigation is being carried out, the petitioner has come up with this writ-application.
3. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the learned Magistrate committed any error in passing the impugned order.
4. I am conscious of the decision of the Supreme Court in the case of Smt. Selvi and ors. Vs. State of Karnataka, reported in AIR 2010 SC 1974(1), wherein the Supreme Court considered the issue as regards subjecting an accused to polygraph test or narco analysis or brain finger print test etc. The Supreme Court, after an exhaustive discussion, in conclusion held as under:-
"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:Page 3 of 7
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(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."
5. I may also quote the observations made by the Supreme Court in paragraph 204 of the said judgment, wherein the Supreme Court has discussed the eventuality wherein an individual freely consents to undergo the test referred to above. The Court observed thus:-
"204. We can also contemplate a possibility that even when an individual freely consents to undergo the tests in question, the resulting testimony cannot be readily characterised as voluntary in nature. This is attributable to the differences between the manner in which the impugned tests are conducted and an ordinary interrogation. In an ordinary interrogation, the investigator asks questions one by one and the subject has the choice of remaining silent or answering each of these questions. This choice is repeatedly exercised after each question is asked and the subject decides the nature and content of each testimonial response. On account of the continuous exercise of such a choice, the subject's verbal responses can be described as voluntary in nature. However, in the context of the impugned techniques the test subject does not exercise such a choice in a continuous manner. After the initial consent is given, the subject has no conscious control over the subsequent responses given during the test. In case of the narcoanalysis technique, the subject speaks in a drug-induced state and is clearly not aware of his/her own Page 4 of 7 HC-NIC Page 4 of 7 Created On Wed Oct 14 01:33:22 IST 2015 R/SCR.A/3132/2014 JUDGMENT responses at the time. In the context of polygraph examination and the BEAP tests, the subject cannot anticipate the contents of the 'relevant questions' that will be asked or the 'probes' that will be shown. Furthermore, the results are derived from the measurement of physiological responses and hence the subject cannot exercise an effective choice between remaining silent and imparting personal knowledge. In light of these facts, it was contended that a presumption cannot be made about the voluntariness of the test results even if the subject had given prior consent. In this respect, we can re-emphasize Principle 6 and 21 of the Body of Principles for the Protection of all persons under any form of Detention or Imprisonment (1988).
The explanation to Principle 6 provides that:
"The term 'cruel, inhuman or degrading treatment or punishment' should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time."
Furthermore, Principle 21(2) lays down that:
"No detained person while being interrogated shall be subjected to violence, threats or methods of interrogation which impair his capacity of decision or judgment."
6. Thus, the decision of the Supreme Court makes one thing very clear that no lie-detector test should be administered except on the basis of consent of the accused. Such consent should be recorded before a judicial Magistrate.
7. The question that falls for my consideration is whether subjecting a person who is just a suspect or a person whose interrogation by way of such test would give some clue to the Investigating Agency would amount to violation of Article 20(3) of the Constitution of India. Article 20(3) reads as under:-
20. Protection in respect of conviction for offences (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
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(3) No person accused of any offence shall be compelled to be a witness against himself.
8. In the case in hand, the persons named in the application filed by the Police Officer are neither accused, nor are suspects, but they are the persons who, according to the petitioner and the Police would be able to throw some light on the death of the son of the petitioner in mysterious circumstances.
9. Mr. Pandya, the learned APP appearing for the State submitted that the lie detection test can be conducted on any person including witnesses and they need not necessarily be accused or suspects. It is a safe test to elicit information relating to the crime from the persons named in the application. He submitted that there was no reason for the learned Magistrate to seek their consent because they are not accused. They are not even suspects. In the case in hand, since the persons named in the application are not the accused arrested by the Police, there was no need to obtain any permission from the Court as such to undertake the lie detection test. In cases where the persons are not willing to undergo the test, then only it is required by the Police to make an application to the Court seeking permission for undertaking a test of such persons. The Police are required to convince the Court as to what are the circumstances that made the Police to gain an impression that the persons proposed to be put to lie detection test are likelihood of knowing something about the commission of the offence. Since the persons named in the application are not the accused or suspects in the alleged crime, the question of putting the test of testimonial compulsion would not arise.
10. In the result, this application is allowed. The impugned order passed by the learned Magistrate is ordered to be quashed and set aside.
11. The Detective Police Inspector shall undertake the lie detection test of the six persons named in the application and proceed thereafter in accordance with law on the basis of the result of the same. The Officer concerned shall see to it that the investigation of the A.D is completed at the earliest, and subject to the final outcome Page 6 of 7 HC-NIC Page 6 of 7 Created On Wed Oct 14 01:33:22 IST 2015 R/SCR.A/3132/2014 JUDGMENT of the same, shall proceed to take the decision whether to register the FIR or not.
With the above, this petition is disposed of. Direct service permitted.
(J.B.PARDIWALA, J.)
Mohandas
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