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7. It is also further submitted by Shri Nanavati, learned Senior Advocate that police remand was given and the petitioner was in police remand and the petitioner has cooperated and nothing incriminating has been found against the petitioner. It is also further submitted that the petitioner is changed only for the offences under Sections 212 and 506(2) of the Indian Penal Code and thus, looking to the offences as alleged, such a drastic measure of injecting foreign chemical against the will of the petitioner is not required. It is submitted that when the allegations are only under Section 202 of harboring only the aforesaid two tests are not called for. It is submitted that the nature of offences alleged is a relevant consideration for which such a drastic test is not required. It is also further submitted by him that the method adopted in the commission of crime by one or more accused is also relevant consideration like Telegi's case. It is also further submitted by him that even if all the allegations levelled against the petitioner are considered as gospel truth then also it is not a case for Narco Analysis Test. It is also further submitted by him that identical question/controversy is pending before the Hon'ble Supreme Court and the matter is referred to Larger Bench and therefore, this Court should wait and/or should not pronounce any judgment in the present case till the controversy is resolved by the Hon'ble Supreme Court and/or the matter is decided by the Hon'ble Supreme Court. It is submitted by him that before the Revisional Court the petitioner has specifically made out a ground with regard to pendency of the proceedings before the Hon'ble Supreme Court but the Revisional Court has not deal with the same at all. It is submitted by him that at least the learned Revisional Court was expected to deal with and consider the same. It is submitted by him that whenever the contention is raised and the submission is made, the Court is bound to consider the same and dealt with the same and the Court cannot just ignore the same and/or do not deal with the same. By making the aforesaid submissions, Shri Nanavati, learned Senior Advocate has requested to quash and set aside the orders passed by both the Courts below and reject the application of the prosecuting agency for Narco Analysis Test and Brain Mapping Test of the petitioner.

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.