Gujarat High Court
Anilbhai Somabhai Macwan vs State Of Gujarat on 28 March, 2024
NEUTRAL CITATION
R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3130 of 2014
With
R/SPECIAL CRIMINAL APPLICATION NO. 145 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ANILBHAI SOMABHAI MACWAN
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR KIRTIDEV R DAVE(3267) for the Applicant(s) No. 1
DARSHIT R BRAHMBHATT(8011) for the Respondent(s) No. 10,5,6,7,8,9
NOTICE SERVED for the Respondent(s) No. 3,4
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1,11
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 28/03/2024
COMMON ORAL JUDGMENT
1. Since the issue involved in both these applications is interrelated and the parties are also the same, those were Page 1 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined heard analogously and are being disposed of by this common judgment and order.
2. The applicant of the Special Criminal Application No.3130 of 2014 has prayed for the following reliefs;
"a) Your Lordship may be pleased admit this petition.
b) Your Lordship may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction holding that the order of the Ld. JMFC, Nadiad, in AD No.26 of 2011 of Nadiad (Rural), Police Station Dt. 28-04-
2014 is bad in law and it be quashed and set aside. The Polygraphic Test be permitted in the large interest of justice.
c) Your Lordship be pleased to grant any other relief/s as may be deemed fit in the facts and circumstances of the case."
3. The applicants of the Special Criminal Application No.145 of 2016 have prayed for the following reliefs;
"[A] Your Lordships be pleased to admit this petition and allow the present petition. Your Lordships be further pleased to quash and set aside the notice at Annexure H and direct the respondent No.2 not to carry lie detection test of the present petitioners.
[B] Pending admission, hearing and disposal of this petition, THIS HON'BLE COURT be pleased to stay the notice at Annexure H. [C] Your Lordships be pleased to pass any other orders as may be deemed fit in the interest of justice."
4. Briefly stated the facts of the present case are that on 15.11.2011, in the morning, the son of the applicant of Special Criminal Application No.3130 of 2014, namely, Sumit, studying Page 2 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined in 12th standard, left for the school on his motorcycle bearing registration No.GJ-07-BC-132. However, when the father of the deceased was about to left for his job, at around 9:00 to 9:30 a.m., he received a phone call from the school that his son did not reach to the school. Therefore, he immediately rushed to the school and met Vohra sir from where he tried to contact his son on his mobile till 12:10 in the noon, however, he did not get any response and after some time, the mobile of his son found to be switched off. Thereafter, at around 1:30 in the noon, applicant-Anilbhai Somabhai received a phone call from the A.S.I. of Nadiad Rural Police Station who informed him that one dead body along with the motorcycle No.GJ-07-BC-132 was found from the pond near Saloon Talavdi and asked him to immediately reach over there. Therefore, the father of the deceased son immediately reached at the scene of offence where he found that the police and the officers of the fire brigade were already present there who fished out one dead body from the pond which the applicant-Anilbhai Somabhai identified to be of his son Sumit, pursuant to which, an Accidental Death Case No.26 of 2011 came to be registered.
Contentions:-
5. Learned advocate Mr. Kirtidev R. Dave appearing for the applicant in Special Criminal Misc. Application No.3130 of 2014 submits that the applicant's son, namely, Sumit went for school on 15.11.2011 but did not return back and on the very same day, in the evening, the applicant received a message that the dead body of his son was found from the pond near Saloon Talavdi. Learned advocate Mr. Dave further submits Page 3 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined that, however, at the relevant point of time, no first information report was lodged by the applicant and an accidental death being A.D. Case No.26 of 2011 was registered. However, during the course of investigation of the A.D. referred to above, the names of six suspected persons came on surface and, therefore, the concerned investigator preferred an application before the Judicial Magistrate, First Class, Nadiad, seeking permission for carrying out the polygraphic test of those suspected persons, however, the said application was rejected by the learned Magistrate vide order dated 28.04.2014 which is illegal, arbitrary and bad in law.
Learned advocate Mr. Dave would further submit that it is true that it is the settled proposition of law that no one can be compelled to give evidence against himself, however, a scientific examination is always a part of investigation and such examination is always permitted by law and approved by the constitution. Learned advocate Mr. Dave further submits that day in and day out, the accused of prohibition cases are required to give their blood samples to the concerned Investigating Agency. He would further submit that the applicant has a strong apprehension that his tender age boy is being slain by someone and, therefore, in order to bring on record the real truth and to find out and punish the real culprits, the polygraphic test of the suspected persons is very much necessary in the present case. Learned advocate Mr. Dave thus prays that the impugned order passed by the learned Judicial Magistrate, First Class, Nadiad dated 28.04.2014 be quashed and set aside and the polygraphic test/ lie detection test may be permitted to be carried out upon the Page 4 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined suspected persons as named by the investigator.
6. Learned advocate Mr. Darshil Brahmbhatt appearing for the applicants in the Special Criminal Application No.145 of 2016 submits that in the earlier application filed by the father of the deceased, his clients were not made party to the said proceedings, however, pursuant to the order passed by the then Coordinate Bench of this Court (Coram: J.B. Pardiwala, J.), the concerned investigator has issued notices to the applicants herein to undergo the polygraphic test which is contrary to the law. He would further submit that as per the version given by the applicant of the connected application, i.e., the father of the deceased son, his son went missing who left the home for school and on the same day evening, he came to know about one dead body found by the police from the pond near Saloon Talavdi which was identified by him to be of his son Sumit for which an accidental death being A.D. No.26 of 2011 under Section 174 of the Cr.P.C. also came to be registered by the police and the statement of father of the deceased, namely, Anilbhai Somabhai Macwan was also recorded on 21.11.2011. Learned advocate Mr. Brahmbhatt further submits that later on pursuant to the grievance raised by the applicant of the connected application that his son has been murdered by someone, the investigation was carried out in that way, and at the end of the investigation, the Detective Police Inspector, C.I.D. Crimes, Investigation Wing, Nadiad submitted a report to the Deputy Secretary, Home Department, Sachivalaya stating that there is one eye-witness to the incident, namely, Vishnubhai who had seen the deceased drowning in the water Page 5 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined and, therefore, the case appears to be of a suicidal death and not the homicidal death. The report further reveals that nobody was found present where the dead body of the deceased was lying and the postmortem report of the deceased also reveals that there are no injuries found on the body of the deceased and the cause of death is shown to be of drowning in the water. It is further stated in the report that not a single corroborative piece of evidence found by the investigator during the entire course of investigation to the grievance/suspicion raised by the father of the deceased that his son has been murdered.
6.1 Learned advocate Mr. Brahmbhatt further submits that it appears from the statement of the eye-witness Vishnubhai that on 15.11.2011, when he along with his father Maganbhai were present at home, they heard a loud noise like something falling in the water and, therefore, he ran out of the house followed by his father Maganbhai and seen that one boy was drowning in the water, so, he tried to rescue him, however, the boy told him not to try to save him, otherwise, he will also drag him into the water along with him. Thus, it appears from the said statement that the deceased had committed suicide. The autopsy report also reveals that there are no injuries on the body of the deceased and at the time of the incident, nobody was found available with the deceased. The statement of the father of Vishnubhai also came to be recorded who was also present over there at the time of the incident who has reiterated the same version. Learned advocate Mr. Brahmbhatt also submits that at the time of filing the earlier application by Page 6 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined the applicant of the connected application being Special Criminal Application No.3132 of 2014, which was considered by the then Coordinate Bench of this Court (Coram: J.B. Pardiwala, J.), his clients were not made party to the said proceedings and, therefore, they could not get sufficient opportunity to oppose the said application. He would further submit that pursuant to the order passed in the aforesaid application, notices were issued to the applicants herein by the concerned investigator for undergoing the lie detection test, which were challenged by the applicants herein by way of filing the present application being Special Criminal Application No.145 of 2016. wherein after considering the grounds urged in the memo of the application, the very same the then Coordinate Bench (Coram: J.B. Pardiwala, J.) protected the applicants by granting ad-interim relief in their favour. Learned advocate Mr. Brahmbhatt further submits that it is a settled proposition of law that for the purpose of carrying out any scientific test in order to elicit any information, the assent of the accused as well as the witnesses, upon whom, such test is to be carried out, is required to be obtained. Admittedly, in the present case, the applicants herein are not agreeable to go through any such test and, therefore, as per the ratio laid down by the Hon'ble Apex Court in the case of Selvi & Ors. vs. State of Karnataka, reported in (2010) 7 SCC 263, the application filed by him be allowed and the application filed by learned advocate Mr. Dave be rejected.
7. Learned APP Mr. Dhawan Jayswal appearing for the State- respondents submits that after the occurrence of the incident, Page 7 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined the concerned investigating officer immediately carried out the investigation and submitted a report before the competent authority after recording statement of certain witnesses. Learned APP Mr. Jayswal further submits that it is the specific say of the investigator that the death of the deceased was not homicide one as the incident was seen by two or three eye- witnesses available at the place of occurrence, and as per the say of eye-witness Vishnubhai, upon hearing the loud noise of something falling into the water, he ran out from the house and seen the deceased drowning in the water and when he tried to rescue him, the deceased threatened him not to come to his rescue otherwise he will drag him also into the water and at that point of time, nobody was accompanied the deceased. Not only that, within no time, the other persons also reached at the scene of offence whose statements were also recorded wherein they have given the verbatim same facts as has been stated by the eye-witness Vishnubhai. Thereafter, the investigating officer carried out the lie detection test of the eye-witness Vishnubhai and as per the report of the Directorate of Forensic Science, whatever facts have been narrated by the said witness before the investigating officer are correct one and he has not concealed anything. Even as per the autopsy report, no external injuries were found on the body of the deceased. Learned APP would further submit that earlier, the client of Mr. Dave preferred an application seeking lie detection test of the clients of Mr. Brahmbhatt, which was allowed by the then Coordinate Bench of this Court (Coram:
J.B. Pardiwala, J.) vide order dated 09.10.2015, pursuant to which, the concerned investigating officer issued notices to the Page 8 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined clients of Mr. Brahmbhatt, however, instead of approaching the investigating officer, the clients of Mr. Brahmbhatt straightway filed the present application and obtained order of stay and, therefore, the investigation qua them is at standstill since then. Learned APP Mr. Jayswal further submits that considering the above stated factual aspects, the relief as sought for in the application filed by learned advocate Mr. Dave may not be granted and his application be rejected.
8. In rejoinder, learned advocate Mr. Dave very candidly submits that considering the fact that his client has lost his son at a very tender age and as there was strong apprehension raised by his client as regards the murder of his son, the investigation may be directed to be proceeded further in accordance with law.
ANALYSIS
9. I have heard the learned counsel appearing for the parties and also perused the record.
10. This Court has called upon to decide a common issue involved in two separate applications filed by the rival parties as to whether polygraph test/lie detection test should be permitted to be carried out upon the suspected accused persons so as to reach to the root of the matter and find out the real truth as regards the grievance raised by the client of Mr. Dave that the death of his son is not an accidental death but is a homicidal one.
Page 9 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined
11. It appears from the record that the proposed accused persons sought to be undergone a polygraph test/lie detection test, have dissented to undergo any such kind of scientific test, and in the absence of any consent which is sine qua non in cases where such type of test is being sought for, the learned Magistrate has rightly declined to permit the police to carry out such a test upon the proposed accused persons. Polygraph Test is inadmissible in evidence under the Evident Act, 1872 unless and until not done with the consent of the accused because the Constitution itself has given protection to the accused persons under Article 20(3) which specifically provides that no person shall be forced to give evidence which is self incriminating. Further, Section Section 161 of the Cr.P.C also mentions that statements given to the police by the witnesses during the course of investigation are also embodied by the protective envelope of Article 20(3).
12. In order to resolve the controversy and to decide the genuineness and correctness of the order passed by the learned Magistrate, declining such scientific tests, it would be apposite to refer to Article 20(3) of the Constitution of India as well as Section 161(2) of the Cr.P.C., which read as follows;
"Article 20:-Protection in respect of conviction for offences.-
(1) *** *** *** (2) *** *** *** (3) No person accused of any offence shall be compelled to be a witness against himself."Page 10 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024
NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined Section 161. Examination of witnesses by police.- (1) *** *** *** (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) *** *** *** "
13. The Hon‟ble Apex Court in the case of Selvi (supra) had discussed the historical and theoretical perspective as well as practical aspects of the polygraph test, in the following manner:
"13. The origins of polygraph examination have been traced back to the efforts of Lombroso, a Criminologist who experimented with a machine that measured blood pressure and pulse to assess the honesty of per. sons suspected of criminal conduct. His device was called a hydrosphygmograph. A similar device was used by Psychologist William Marston during World War I in espionage cases, which proved to be a precursor to its use in the criminal justice system. In 1921, John Larson incorporated the measurement of respiration rate and by 1939 Leonard Keeler added skin conductance and an amplifier to the parameters examined by a polygraph machine.
14. The theory behind polygraph tests is that when a subject is lying in response to a question, he/she will produce physiological responses that are different from those that arise in the normal course. During the polygraph examination, several instruments are attached to the subject for measuring and recording the physiological responses. The examiner then reads these results, analyses them and proceeds to gauge the credibility of the subject's answers. Instruments such as cardiographs, pneumographs, cardio-cuffs and sensitive electrodes are used in the Page 11 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined course of the polygraph examinations. They measure changes in aspects such as respiration, blood pressure, blood flow, pulse and galvanic skin resistance. The truthfulness or falsity on part of the subject is assessed by relying on the records of the physiological responses. [See Laboratory Procedure Manual-- Polygraph Examination (Directorate of Forensic Science, Ministry of Home Affairs, Government of India, New Delhi, 2005)].
15. There are three prominent polygraph examination techniques:
(i) The relevant-irrelevant (R-I) technique.
(ii) The control-question (CQ) technique.
(iii) Directed lie control (DLC) technique.
Each of these techniques includes a pre-test interview during which the subject is acquainted with the test procedure and the examiner gathers the information which is needed to finalise the questions that are to be asked. An important objective of this exercise is to mitigate the possibility of a feeling of surprise on the part of the subject which could be triggered by unexpected questions. This is significant because an expression of surprise could be mistaken for physiological responses that are similar to those associated with deception. [Refer David Gallai, "Polygraph Evidence in Federal Courts: Should it be Admissible?.] Needless to say, the polygraph examiner should be familiar with the details of the ongoing investigation. To meet this end the investigators are reguired to share conies of documents such as the first information report (FIR), medico-legal reports (MLR) and post-mortem reports (PMR) depending on the nature of the facts being investigated.
16. The control-question (CQ) technique is the most commonly used one and its procedure as well as scoring system has been described in the materials Page 12 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined submitted on behalf of CBI. The test consists of control questions and relevant questions. The control questions are irrelevant to the facts being investigated but they are intended to provoke distinct physiological responses as well as false denials. These responses are compared with the responses triggered by the relevant questions. Theoretically, a truthful subject will show greater physiological responses to the control questions which he/she has reluctantly answered falsely, than to the relevant questions, which the subject can easily answer truthfully. Conversely, a deceptive subject will show greater physiological responses while giving false answers to the relevant questions in comparison to the responses triggered by false answers to the control questions. In other words, a guilty subject is more likely to be concerned with lying about the relevant facts as opposed to lying about other facts in general. An innocent subject will have no trouble in truthfully answering the relevant questions but will have trouble in giving false answers to the control questions. The scoring of the tests is done by assigning a numerical value, positive or negative, to each response given by the subject. After accounting for all the numbers. the result is compared to a standard numerical value to indicate the overall level of deception. The net conclusion may indicate truth, deception or uncertainty..."
14. The restrictions of a Polygraph Test and its fidelity have also been dealt with by the Hon‟ble Apex Court in Selvi (supra), and the relevant observations are reproduced as under:
"20. Polygraph tests have several limitations and therefore a margin for errors. The premise behind these tests is questionable because the measured changes in physiological responses are not necessarily triggered by lying or deception. Instead, they could be triggered by nervousness, anxiety, Page 13 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined fear, confusion or other emotions. Furthermore, the physical conditions in the polygraph examination room can also create distortions in the recorded responses. The test is best administered in comfortable surroundings where there are no potential distractions for the subject and complete privacy is maintained. The mental state of the subject is also vital since a person in a state of depression or hyperactivity is likely to offer highly disparate physiological responses which could mislead the examiner. In some cases the subject may have suffered from loss of memory in the intervening time-period between the relevant act and the conduct of the test. When the subject does not remember the facts in question, there will be no self-awareness of truth or deception and hence the recording of the physiological responses will not be helpful. Errors may also result from `memory- hardening', i.e. a process by which the subject has created and consolidated false memories about a particular incident. This commonly occurs in respect of recollections of traumatic events and the subject may not be aware of the fact that he/she is lying.
21. The errors associated with polygraph tests are broadly grouped into two categories, i.e., `false positives' and `false negatives'. A `false positive' occurs when the results indicate that a person has been deceitful even though he/she answered truthfully. Conversely a `false negative' occurs when a set of deceptive responses is reported as truthful. On account of such inherent complexities, the qualifications and competence of the polygraph examiner are of the utmost importance. The examiner needs to be thorough in preparing the questionnaire and must also have the expertise to account for extraneous conditions that could lead to erroneous inferences. However, the biggest concern about polygraph tests is that an examiner may not be able to recognize deliberate attempts on part of the subject to manipulate the test results. Such `countermeasures' are techniques which are deliberately used by the subject to create certain Page 14 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined physiological responses in order to deceive the examiner. The intention is that by deliberately enhancing one's reaction to the control questions, the examiner will incorrectly score the test in favour of truthfulness rather than deception. The most commonly used `countermeasures' are those of creating a false sense of mental anxiety and stress at the time of the interview, so that the responses triggered by lying cannot be readily distinguished. ***
35. On the issue of reliability, the Court took note of some Circuit Court decisions which had permitted trial courts to consider polygraph results in accordance with the Daubert factors. However, the following stance was adopted, Id. at p. 312:
"... Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner's conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams. Individual jurisdictions therefore may reasonably reach differing conclusions as to whether polygraph evidence should be admitted. We cannot say, then, that presented with such widespread uncertainty, the President acted arbitrarily or disproportionately in promulgating a per se rule excluding all polygraph evidence."
36. Since a trial by jury is an essential feature of the criminal justice system in the U.S.A., concerns were expressed about preserving the jury's core function of determining the credibility of testimony. It was observed, Id. at p. 314:
" ... Unlike other expert witnesses who testify about factual matters outside the jurors' knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion, in addition to its own, about whether the witness was Page 15 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined telling the truth. Jurisdictions, in promulgating rules of evidence, may legitimately be concerned about the risk that juries will give excessive weight to the opinions of a polygrapher, clothed as they are in scientific expertise and at times offering, as in respondent's case, a conclusion about the ultimate issue in the trial. Such jurisdictions may legitimately determine that the aura of infallibility attending polygraph evidence can lead jurors to abandon their duty to assess credibility and guilt. ..."
***
38. We have also come across a decision of the Canadian Supreme Court in R v Beland, [1987] 36 C.C.C. (3d) 481. In that case the respondents had been charged with conspiracy to commit robbery. During their trial, one of their accomplices had given testimony which directly implicated them. The respondents contested this testimony and after the completion of the evidentiary phase of the trial, they moved an application to re-open their defence while seeking permission for each of them to undergo a polygraph examination and produce the results in evidence. The trial judge denied this motion and the respondents were convicted. However, the appellate court allowed their appeal from conviction and granted an order to re-open the trial and directed that the polygraph results be considered. On further appeal, the Supreme Court of Canada held that the results of a polygraph examination are not admissible as evidence. The majority opinion explained that the admission of polygraph test results would offend some well established rules of evidence. It examined the `rule against oath-helping' which prohibits a party from presenting evidence solely for the purpose of bolstering the credibility of a witness. Consideration was also given to the `rule against admission of past or out-of-court statements by a witness' as well as the restrictions on producing `character evidence'. The discussion also concluded that polygraph evidence is inadmissible as `expert Page 16 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined evidence'.
***
41. Mcintyre, J. offered the following conclusions (at Paras. 18, 19 and 20):
"18. In conclusion, it is my opinion, based upon a consideration of rules of evidence long established and applied in our courts, that the polygraph has no place in the judicial process where it is employed as a tool to determine or to test the credibility of witnesses. It is frequently argued that the polygraph represents an application of modern scientific knowledge and experience to the task of determining the veracity of human utterances. It is said that the courts should welcome this device and not cling to the imperfect methods of the past in such an important task. This argument has a superficial appeal, but, in my view, it cannot prevail in the face of realities of court procedures.
19. I would say at once that this view is not based on a fear of the inaccuracies of the polygraph. On that question we were not supplied with sufficient evidence to reach a conclusion. However, it may be said that even the finding of a significant percentage of errors in its results would not, by itself, be sufficient ground to exclude it as an instrument for use in the courts. Error is inherent in human affairs, scientific or unscientific. It exists within our established court procedures and must always be guarded against. The compelling reason, in my view, for the exclusion of the evidence of polygraph results in judicial proceedings is two- fold. First, the admission of polygraph evidence would run counter to the well established rules of evidence which have been referred to. Second, while there is no reason why the rules of evidence should not be modified where improvement will result, it is my view that the admission of polygraph evidence will serve no purpose which is not already Page 17 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined served. It will disrupt proceedings, cause delays, and lead to numerous complications which will result in no greater degree of certainty in the process than that which already exists.
20. Since litigation replaced trial by combat, the determination of fact, including the veracity of parties and their witnesses, has been the duty of judges or juries upon an evaluation of the statements of witnesses. This approach has led to the development of a body of rules relating to the giving and reception of evidence and we have developed methods which have served well and have gained a wide measure of approval. They have facilitated the orderly conduct of judicial proceedings and are designed to keep the focus of the proceedings on the principal issue, in a criminal case, the guilt or innocence of the accused. What would be served by the introduction of evidence of polygraph readings into the judicial process? To begin with, it must be remembered that however scientific it may be, its use in court depends on the human intervention of the operator. Whatever results are recorded by the polygraph instrument, their nature and significance reach the trier of fact through the mouth of the operator. Human fallibility is therefore present as before, but now it may be said to be fortified with the mystique of science. ..."
15. The Hon'ble Supreme Court in the case of Selvi (supra) further settled the position of law as regards conducting polygraph test on an accused in which it was held that (i) compulsory or involuntary administration of polygraph test on an accused violates the "right against self-incrimination‟, (ii) guidelines issued by the National Human Rights Commission i.e. "Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused, 2000‟ should be strictly adhered to, and (iii) even if such test is conducted after Page 18 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined obtaining consent, it cannot be admitted as evidence, but any information subsequently discovered with help of such test conducted voluntarily can be admitted in accordance with Section 27 of Indian Evidence Act, 1872. The conclusion arrived at by the Hon'ble Apex Court in the case of Selvi (supra) reads as under:
"262. In our considered opinion, the compulsory administration of the impugned techniques violates the `right against self- incrimination'. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. This Court has recognised that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible `conveyance of personal knowledge that is relevant to the facts in issue'. The results obtained from each of the impugned tests bear a `testimonial' character and they cannot be categorised as material evidence.
263. 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 Page 19 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined 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'.
264. 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.
265. 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 Page 20 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined 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."
16. On the basis of above-stated legal analysis, it is held that narco-analysis, polygraph and BEAP tests cannot be conducted without the consent of person suspected of an offence and Page 21 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined against his will, as it is violative of "right against self- incrimination" guaranteed under Articles 20(3) and 21 of the Constitution of India and also violative of Section 161 (2) of the Cr.PC.
17. A careful perusal of the record and the impugned order would show that the proposed accused have expressly declined to undergo the afore-stated scientific test stating inter alia that they have no knowledge of the facts of the case, they are not involved in the offence in question and are not ready and willing to undergo such tests. In such an event, giving any direction to the suspects of an offence to undergo such scientific test for the purpose of furtherance of investigation would be plenary, arbitrary, illegal and in teeth of the authoritative pronouncement laid down in the Selvi (supra) in which it has been concluded that no individual should be forcibly subjected to any of such scientific tests against his will in the context of investigation in criminal cases, as it violates the right against self incrimination, violation of Articles 20 (3) and 21 of the Constitution of India, and Section 161 (2) of the CrPC and also runs contrary to the Guidelines issued for the Administration of Polygraph Test on an Accused person published by the National Human Rights Commission which have been directed to be followed strictly by the Supreme Court in Selvi (supra), and as such, the learned Magistrate is absolutely justified in declining the suspects of an offence to undergo such scientific techniques against their will and without their consent.
18. Further, in the context of the present case, I am of the Page 22 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined view that the Polygraph Test or the Lie Detection Test, as prayed for by the applicant in Special Criminal Application No.3130 of 2014 would be of no avail to the case on hand as it cannot be said to be a conclusive evidence to establish the guilt against the accused persons and that too when no first information report has been registered so far and they have been sought to be put to such a scientific test only on the basis of suspicion, but at the same time, refuting the prayer of carrying out such a test upon the suspects of an offence, will not give a clean chit to the suspects of an offence so implicated by the Investigating Officer, as in the present case, the innocence or the guilt of the persons, can only be found out after conducting proper and thorough investigation, which is still pending in the present case.
19. Accordingly, in view of the discussion made above and in light of the decision of the Hon'ble Apex Court in Selvi (supra), no case is made out by the applicant of the Special Criminal Application No.3130 of 2014 for interference by this Court exercising power under Section 482 Cr.PC for the relief claimed and no such direction can be issued as prayed by the applicant, whereas I am convinced with the case put forward by the applicants of Special Criminal Application No.145 of 2016 and, hence, I pass the following order;
ORDER I) The Special Criminal Application No.3130 of 2014 is hereby rejected. However, the Investigating Officer is hereby directed to proceed further with the investigation in Page 23 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024 NEUTRAL CITATION R/SCR.A/3130/2014 JUDGMENT DATED: 28/03/2024 undefined accordance with law. Rule is discharged. Ad-interim relief, if any, stands vacated.
II) The Special Criminal Application No.145 of 2016 is hereby allowed. The notices issued by the respondent No.2 at Annexure-H collectively are hereby quashed and set aside. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(DIVYESH A. JOSHI,J) VAHID Page 24 of 24 Downloaded on : Tue Apr 02 20:38:19 IST 2024