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3. Before dealing with the present petition on merits and the contentions on behalf of the rival parties with regard to need of Narco Analysis Test and/or Brain Mapping Test, few facts are necessary for the determination of the present petition to appreciate the prayer of the Investigating Officer for conducting the Narco Analysis Test and/or Brain Mapping Test of the petitioner.

4. An FIR is registered at Junagadh Taluka Police Station on 13.5.2007 given by one Jyotiben Dilipbhai Pipariya against two accused persons named Mohan Amir Gohil and Mahesh alias Bhaddo Mulji Chauhan for the offence punishable under Sections 302, 394, 376 and others of Indian Penal Code and as stated above, the said FIR is registered on 13.5.2007 being CR No. I - 69 of 2007. It appears that inspite of the best efforts made by the Investigating Agency and the State, those two named accused persons could not be arrested and they are absconding. At this stage it is required to be noted that there is a hue and cry in the public with regard to the Page 1371 aforesaid incident and the offence committed by the accused persons and agitation has taken place on large scale by the public raised alleging inter alia the inaction on the part of the State and the Investigating Agency in not able to arrest the accused persons of the aforesaid FIR. During the course of the investigation of the CR I 69 of 2007 and on the basis of the statement given by the sister of the accused of CR I 69 of 2007 - Mohan Hamir that the said accused persons have contacted and met the petitioner and both of them requested the petitioner to give shelter and accordingly said two persons accused are under her shelter and therefore the FIR is registered on 8.6.2007 at Junagadh B Division Police Station against the petitioner and four other unknown persons for the offence under Sections 212, 506(2) and 114 of the Indian Penal Code and the said complaint is given by the Police Inspector, Crime Branch, Junagadh alleging inter alia that the petitioner has committed offence of harboring and sheltering as well as of criminal intimidation and abetment. That the petitioner came to be arrested and Investigating Officer has produced the petitioner before the learned JMFC, Junagadh and an application seeking police remand for the period of 4 days was submitted which was objected by the petitioner, however, considering the seriousness of the offence alleged, the learned Magistrate by an order dated 10.6.2007 granted police remand of the petitioner upto 11.00 A.M. Of 13.6.2007. The said order was challenged by the petitioner before this Court by way of Special Criminal Application No. 1101 of 2007 and the same was withdrawn as having become infructuous. On expiry of the period of remand on 13.6.2007, an application for further remand for a period of 3 days was given by the Investigating Officer however, the learned Magistrate by order dated 13.6.2007 rejected the said application seeking further remand. The petitioner submitted an application for bail and simultaneously the prosecuting agency gave an application on 11.6.2007 for taking the petitioner for performing the Brain Mapping Test as well as Narco Analysis Test. The said application was at Mark - 8. The said application came to be objected by the petitioner on the ground which will be referred to hereinafter. The learned JMFC, Junagadh granted the application of the prosecution for taking the petitioner for performing the Narco Analysis Test as well as the Brain Mapping Test vide order dated 13.6.2007. Being aggrieved by the said order, the petitioner gave an application for staying the operation of the said order vide Exh.16 so as to enable the petitioner to challenge the said order before the Revisional Court and the learned JMFC, Junagadh stayed the operation of the order upto 26.6.2007. Against the order granting Narco Analysis Test and Brain Mapping Test, the petitioner preferred Criminal Revision Application No.2007 in the Court of learned District & Sessions Judge, Junagadh on 18.6.2007. In the meantime, the learned JMFC passed an order to adjourn the hearing of the bail application of the petitioner till the petitioner undertakes Narco Analysis Test and Brain Mapping Test. The petitioner being aggrieved by the said order in defering the hearing of the bail application till the petitioner undertakes Narco Analysis Test and Brain Mapping Test preferred Special Page 1372 Criminal Application No. 1132 of 2007 before this Court and by order dated 29.6.2007 this Court directed the learned JMFC to decide and dispose of the bail application with certain observations. Thereafter the said application was heard by the learned JMFC and the learned JMFC allowed the said bail application and released the petitioner on bail. That thereafter the aforesaid Criminal Revision Application No. 89 of 2007 filed by the petitioner filed against the order of granting Narco Analysis Test and Brain Mapping Test came to be heard by the learned Sessions Judge who by his judgment and order dated 30.6.2007 dismissed the said Criminal Revision Application and confirmed the order passed by the learned JMFC granting application of the prosecution for taking the petitioner for performing Narco Analysis Test and Brain Mapping Test. Against the order of rejection of the Criminal Revision Application as well as the order passed by the learned JMFC, Junagadh granting application of the prosecution for taking the petitioner for peforming Narco Analysis Test as well as Brain Mapping Test the petitioner-original accused has preferred present Special Criminal Application under Article 227 of the Constitution of India.

8. Shri K.B. Trivedi, learned Advocate General was called by the Court to assist the Court and he has submitted that at least four High Courts in the country have considered the permissibility of the Narco Analysis Test and Brain Mapping Test on the accused persons and have also considered the submissions and the contentions raised on behalf of the accused persons with regard to the protection guaranteed under Articles 20(3) & 21 of the Constitution of India and all the four High Courts have elaborately considered all the aspects on the point and have permitted the Narco Analysis Test and Brain Mapping Test upon the accused persons. He has submitted that the Division Bench of the Bombay High Court in case of Ramchandra Reddy v. State of Maharastra reported in 2004 ALL MR (Cri) 1704; The Karnataka High Court in case of Smt. Selvi and Ors. v. State by Page 1375 Koramangala Police Station decided on 10th September, 2007 in Criminal Petition No.1964 of 2004; the Bombay High Court in case of Arun Gulab Gavali v. State of Maharastra reported in 2006 Cr.L.J. 2615; the Madras High Court in case of Dinesh Dalmia v. State reported in 2006 Cr.L.J. 2401; and the Andhra Pradesh High Court in case of K. Venkateshwara Rao, S/o K. Vijaya Simha, Hydrabad v. State of A.P. Decided on 30th August, 2007 in Criminal Revision Application No. 1402 of 2006 have taken a view that by performing/conducting the Narco Analysis Test/Brain Mapping Test on the accused person, at the stage of investigation do not violate the constitutional protection guaranteed under Article 20(3) and 21 of the Constitution of India. It is also further submitted that in all the aforesaid cases, the Courts have also considered the need of such scientific tests by observing that it is a need for the day for such a scientific tests. Learned Advocate General has also drawn the attention of the Court to the relevant materials in favour of conducting of the Narco Analysis Test inclusive of the guidelines issued by the National Human Rights Commission and the Report of the Law Commission. He has also taken the Court to the order passed by this Court in Special Criminal Application No.1200 of 2003 dated 16.12.2007 in case of Malav A. Bhatt v. State of Gujarat as well as the judgment of the Hon'ble Supreme Court in case of Jitubhai Babubhai Patal v. State of Gujarat reported in 2005 (10) SCC 545 and the news report dated 17.7.2007 extracting from the web-site of Ind. Law Communications Private Ltd. Pointing out that the Hon'ble Karnataka High Court has allowed one petition against the Narco Analysis Test. Shri Trivedi has submitted that the aforesaid submissions are only to be construed as his own opinion with a view to assist the Hon'ble Court and may not be construed as opinion and/or policy of the State.

9. Shri R.C. Kodekar, learned APP appearing on behalf of the State has opposed the present petition. It is submitted that considering the provisions of the Criminal Procedure Code, more particularly, Sections 156 to 159, the Investigating Agency of the State has statutory right to investigate the case and Narco Analysis Test and the Brain Mapping Test and other tests are scientific tests, which are now the part of the investigation process and therefore, merely because, the petitioner does not give the consent for the said tests, the Investigating Officer should not be restrained from conducting such tests which is necessary for the purpose of finding out the truth and to nab the accused. It is also further submitted that as there were hue and cry made against the third degree during the investigation such a scientific test is required to be performed on the accused. It is ultimately for the Investigating Officer and/or the prosecuting agency to consider the nature of test required for further investigation. It is also further submitted by him that as held by the Hon'ble Supreme Court in various decisions, Investigating Agency is the master of the investigation and nobody can Page 1376 interfere with the same inclusive of the Magistrate till the appropriate report is submitted after investigation as required and contemplated under the provisions of the Criminal Procedure Code i.e. Sections 169 and/or 173. It is also further submitted by him that when after exploring all the options such a custodial interrogation of the petitioner, etc. when the Investigating Officer is still in dark and is not able to reach to the accused persons and find out the truth, and the petitioner is not telling the truth for investigation in the right direction, Brain Mapping Test and Narco Analysis Test of the petitioner is required and therefore it is requested to dismiss the present application. It is submitted by him that it is not that straight away the prosecuting agency applied for the Narco Analysis Test and/or Brain Mapping Test. Only after it is found that there is no alternative, for further investigation in a right direction, application was given for Narco Analysis Test and Brain Mapping Test of the petitioner. Meeting with the submission on behalf of the petitioner that the petitioner is charged only for the offences under Sections 212 and 506(2) of the Indian Penal Code and for which such tests are not called for, it is submitted that even as per the learned Counsel appearing on behalf of the petitioner the nature of the offences alleged is a relevant consideration and in the present case what is required to be considered is not an allegation with regard to Section 212 of the Indian Penal Code but further allegations are also required to be considered. It is submitted by him that the allegations against the petitioner are that the petitioner has committed offence of harboring and sheltering the two accused persons who are involved in the serious offence under Sections 302, 394 and 376 and others of Indian Penal Code. It is submitted that a girl was murdered by the accused after committing rape upon her and the said accused persons are absconding and the allegations against the petitioner are that she has harbored and sheltered those two accused persons. It is submitted by Shri Kodekar that if the Narco Analysis Test and the Brain Mapping Test are allowed to be performed/conducted upon the petitioner, in that case, the Investigating Agency might get some clue which can be helpful to the Investigating Officer/Investigating Agency to further investigate the case and help the Investigating Officer/Investigating Agency to find out those accused persons. Therefore, it is submitted that the allegations against the petitioner for the offence under Section 212 of the Indian Penal Code are required to be considered in light of the offence committed by those persons to whom the petitioner has given shelter and harbor. It is also further submitted by him that four different High Courts in the country have considered all the submissions which are made on behalf of the petitioner and have permitted the Narco Analysis Test and Brain Mapping Test upon the accused persons by observing that it does not violate the protection guaranteed under Articles 20(3) and 21 of the Constitution of India. It is also further submitted by him that it is not required to be considered at this stage whether the statement of the accused persons which would be recorded during the course of the Narco Analysis Test can be used against the petitioner. According to him, that stage has not come and what is evidentiary value of the statement made during the Narco Page 1377 Analysis Test that is required to be considered only at the time of trial and/or at the time when the same is likely to be used against the accused. It is submitted by him that as stated above the requirement of Narco Analysis Test and Brain Mapping Test is only for further investigation of a serious crime. Under the circumstances, it is requested to dismiss the present application.

17. As stated above, when after exhausting all the possible alternatives to find out the truth and nab the criminal/accused and when it is found by the prosecuting agency that there is no further headway in the investigation and they are absolutely in dark, there is a necessity of such a test. On the basis of revelations and/or the statement recorded while conducting/performing the Narco Analysis Test, the Page 1389 prosecuting agency may have some clues which would further help and/or assist the Investigating Agency to further investigate the crime and at this stage, there will not be any bar of Article 20(3) of the Constitution of India and merely conducting/performing of a Narco Analysis Test on the accused, the protection guaranteed under Article 20(3) of the Constitution of India is not violated. As stated above, only and only at the stage when the prosecuting agency is likely to use such statement as evidence and if it is inculpating and incriminating the person making it, it will attract the bar of Article 20(3). As rightly observed by the Bombay High Court in case of Ramchandra Ram Reddy (supra) whether the statement made during the course of the aforesaid test is inculpating or incriminating the person making it, can be ascertained only after the test is administered and not before. Thus, by conducting/performing the Narco Analysis Test itself would not tantamount to compulsive testimony or testimonial compulsion and the same would not amount to violation of Article 20(3) of the Constitution of India and if the statement recorded during the course of the aforesaid test is used against the accused, enough protection exists in the Criminal Procedure Code and/or Indian Evidence Act and recourse to which can be taken as and when the Investigating Agency seeks to produce such statement as evidence and merely on apprehension and/or presumption that the said statement could be used by the Investigating Agency against the person making it that by itself is no ground not to permit the Investigating Agency to conduct/perform the Narco Analysis Test upon the accused, more particularly, when the same is needed for the purpose of finding out the truth and to nab the criminal/accused who have committed offence and when the Investigating Agency is absolutely in dark. Under the circumstances, there is no substance in the contention/submission of the petitioner/accused that conducting/performing of the Narco Analysis Test by itself would be taking away the protection guaranteed under Article 20(3) of the Constitution of India.