Smt Selvi and ors Vs State by Koramangala Police Station - Citation 386089 - Court Judgment

Judgment:
ORDER

S.B. Majage, J.

1. The petitioners-accused 1 to 3, who have been directed to appear before the Investigating Officer and co-operate in the investigation for undergoing Narco-analysis Test in Victoria Hospital at Bangalore, have challenged the impugned order dated 26-6-2004 passed by the Court of VI Additional Chief Metropolitan Magistrate, Bangalore.

2. Facts in brief, which gave rise to the present matter, are:

The complainant namely, Kavita, is the daughter of accused 1 and 2. She and deceased Shivakumar (who belonged to different caste from that of Kavita) fell in love and married against the wishes of accused 1 and 2. According to the complainant, on 10-4-2004, at about 8.00 p.m., when she and her deceased husband were returning near L.L.T. Guest House after having had eatables in a bakery situated in front of L.L.T. College, a maruthi van bearing No. KA-04-MA3167 came and four persons kidnapped her husband in that van. So, she lodged a complaint, registered at Crime No. 219 of 2004 for the offence under Section 365 of the Indian Penal Code at Koramangala Police Station. Thereafter, a dead body was found by one Nagendra Kumar on 11-4-2004 by the side of Hindustan Granite Factory compound at Attibele. So, he filed a complaint at Attibele Police Station. That was registered at Crime No. 58 of 2004 for the offence under Section 302 of the Indian Penal Code against unknown persons on 11-4-2004. During investigation, said dead body was found to be the dead body of deceased Shivakumar and as such, case papers of said crime were transferred to Koramangala Police Station on the ground of jurisdiction and further investigation was taken over by Koramangala Police in Crime No. 219 of 2004.

During investigation, witnesses examined including the parents of deceased besides the complainant Kavita, wife of deceased Shivakumar, suspected the hands of accused 1 and 2 (who are parents of Kavita) along with others in the murder of Shivakumar. So, apprehending their arrest by Police, accused 1 to 3 moved the jurisdictional Sessions Court (Bangalore Rural District, Bangalore) for anticipatory bail under Section 438 of the Criminal Procedure Code and obtained the same with certain conditions.

Since the entire case of prosecution (regarding murder of deceased Shivakumar) depends only on circumstantial evidence, the prosecution sought permission from the Court to conduct Polygraph and Brain Mapping Tests on accused 1 to 3. That was allowed and those tests were conducted. In the report of said tests, in conclusion, it is noted as under:

'When the question related to the crime cited above were administered to Mrs. Selvi Murugeshan, Mr. Murugeshan and Mr. Govindaraj, the Polygraph Test indicated the signs of deception. This suggests us that the above mentioned suspected are not trustworthy in their statement given and have knowledge of the crime. It is advised to subject them to Narco-analysis after the permission from the Court is obtained.'

Therefore, the concerned police have sought permission of the learned Magistrate to conduct Narco-analysis Test on accused 1 to 3. That was objected. However, after hearing, the learned Magistrate granted permission with necessary directions to the accused 1 to 3. So, it is against that order, the accused 1 to 3 are before this Court.

3. It was vehemently argued for the accused that the learned Magistrate committed a serious and grave error in giving directions to the accused to appear for undergoing Narco-analysis Test as the same violate their fundamental right guaranteed under Article 20(3) of the Constitution. According to him, the order containing the directions given is nothing but compelling the accused to give evidence against themselves, which is prohibited under said Article 20(3) of the Constitution. It was further submitted that the accused cannot waive their fundamental right as held by the Supreme Court in the case of Behram Khurshid Pesikaka v. State of Bombay, : 1955CriLJ215 and also in the case of Basheshar Nath v. Commissioner of Income-tax, Delhi and Rajasthan and Anr., : [1959]35ITR190(SC) , and, even if waived, they cannot be compelled to give statement against themselves in view of the said constitutional mandate and consequently, the impugned order requires to be quashed under Section 482 of the Criminal Procedure Code. On the other hand, the learned State Public Prosecutor has supported the impugned order. Perused the records carefully.

4. In the case on hand, the accused have not waived any fundamental right. On the other hand, the accused strongly assert and challenge the impugned order as violative of their fundamental right under Article 20(3) of the Constitution and as such, said two decisions have no application. So, the short question is:

'Whether the impugned order violates Article 20(3) of the Constitution or not?'

5. According to Article 20(3) of the Constitution 'DO person accused of an offence shall be compelled to be a witness against himself. So, it was submitted for the State that information given or statement made by accused during investigation does not attract the Article. But, the phrase used in Article 20(3) is 'to be a witness' and not 'to appear as a witness'. So, the guarantee includes not only oral testimony given in a Court but also out of Court, as held by the Supreme Court in the case of State of Bombay v. Kathi Kalu Oghad, : 1961CriLJ856 and noted recently in the case of Kartar Singh v. State of Punjab, : 1994CriLJ3139 . Admittedly, giving statement/ information by accused to police during investigation furnishes evidence and, therefore, he 'is a witness' during investigation. In paragraph 28 of the decision in the case of Kathi Kalu Oghad, supra, the Supreme Court has made it clear that the protection of Article 20(3) is available even at the stage of investigation as at that stage also the purpose of having a witness is to obtain evidence and the purpose of evidence is to prove a fact. Hence, I do not find any force in the argument advanced by the learned State Public Prosecutor.

6. It need not be said that to come within the inhibition of said Article, there must be a statement: (1) by a person accused of an offence, (2) made under compulsion, (3) against himself (not against others). So, in order to bring the evidence within the inhibitions of Clause (3) of Article 20, it must be shown not only that the person making the statement was an accused at the time he made it and that it had a material bearing on the criminality of the maker of the statement, but also that he was compelled to make that statement. According to the learned Counsel for the accused, subjecting the accused to Narco-analysis Test is nothing but compelling them to give statement against themselves and consequently, said article is attracted. So, it is necessary to note the nature of the test permitted by the impugned order.

7. The term narco-analysis was introduced in 1936 for the use of narcotics to induce a trance like state wherein the person is subjected to various queries. The material (literature) produced shows that in the Narco-analysis Test conducted under medical supervision, an accused will be injected with Sodium Pentathol or Sodium Amytal and thereafter the accused will be subjected to interrogation by the investigating agencies in the presence of expert doctors. But, this will be only after carrying out a detailed medical examination of the accused. If accused is found medically fit to undergo the procedure, then only it will be done, otherwise not. After finding an accused medically fit to undergo the test, the accused will be administered small doses of intravenous infusion of sodium pentathol.

8. Sodium Pentathol is the most commonly used drug as an induction agent for general anesthesia routinely contemplated in most of the surgeries and the psychiatrists routinely use sodium pentathol in the diagnosis of mental illness and/or to evaluate the psychological realities. Under the influence of the drug, the patient talks freely and is purportedly deprived of his self-control and will power to manipulate his answers. This is because, few drugs are known to relax individual's defence so that unknowingly the person reveals the truth, which he has been trying to conceal.

9. So, during the search for effective aids to interrogation, which is probably as old as man's need to obtain information from an un-cooperative subject, more recently, police officials in some countries have turned to the assistance of such drugs in the interrogation of un-cooperative accused persons. The investigating agency uses such drug (of its choice) for getting information from persons/accused from their subconscious level at which it may be difficult for accused to lie. This is said to be due to lack of inhibition produced by the drug and the accused talks freely and respond truthfully to verbal questions. Thus, the use of such drug in police work/interrogation is similar to the accepted psychiatric practice of Narco-analysis and the only difference in the two procedures is the difference in the objectives. But the question is, whether, as a scientific technique in investigations, Narco-analysis Test on an accused could be permitted? In other words, the issue is, whether administration of drug to an accused against his consent or wishes during Narco-analysis Test amounts to compulsion?

10. What is compulsion in the context of Article 20(3) had come up for consideration in the case of Kathi Kalu Oghad supra, wherein the Supreme Court has held that:

''Compulsion' in the context, must mean what in law is called 'duress'. In the Dictionary of English Law by Earl Jowitt, 'duress' is explained as follows :

'Duress is where a man is compelled to do an act by injury, beating or unlawful imprisonment (sometimes called duress in strict sense) or by the threat of being killed, suffering some grievous bodily harm, or being unlawfully imprisoned (sometimes called menace, or duress per mines). Duress also includes threatening, beating or imprisonment of the wife, parent or child of a person.'The compulsion in this sense is a physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore, extorted.'

11. It was vehemently argued for the accused that administering i.e., injecting the drug to accused without their consent or against their wishes amounts to 'compulsion' attracting Article 20(3) as it causes injury, may be slight.

12. It is true that causing some pain by injecting drug may technically amount to hurt as defined under Section 319 of the Indian Penal Code. But such pain could be caused even when blood sample is drawn for the purpose of its test. So also, by the use of emetic when a culprit is suspected to have swallowed some stolen article. However, for such purposes, the law permits use of necessary force, as is clear from Section 53(1) of the Code of Criminal Procedure, which is as under:

'53. Examination of accused by medical practitioner at the request of police officer.--(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a Police Officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.'

(emphasis supplied)

13. It appears that under the old Code, there was no specific provision authorising the police officer under which an arrested person could be subjected to medical examination without his consent. Therefore with an intention to remove that lacuna this new provision was incorporated in the new Criminal Procedure Code, with the sole intention of facilitating effective investigation. Section 53 authorises investigating machinery to get an arrested person examined by a medical practitioner. Section 54 confers such a right upon the accused himself This examination is contemplated under certain conditions. If the nature of the offence alleged to have been committed by the accused coupled with circumstances under which it is committed affords reasonable grounds for believing that an examination of his person will afford evidence as to the commission of the offence, then it has been made lawful for the registered medical practitioner to act at the request of the Police Officer, not below the rank of sub-inspector and to carry out examination of the person arrested in order to ascertain the facts which may afford evidence and for that purpose to use such force as may be necessary. This examination has to be carried out by a registered medical practitioner or any person acting in good faith in his aid and under his direction. It cannot, therefore, be said that merely because some pain or discomfort is caused (in injecting the drug), such a procedure (test) should not be permitted.

14. However, it was argued for the accused that though the words 'examination of his person' appearing in Section 53(1) of the Criminal Procedure Code may embrace the taking sample of blood, semen, etc., but does not include injecting drug to accused. According to the learned Counsel for the accused, in the Narco-analysis Test, as nothing is examined or compared or obtained from the body of the accused, it does not come within the purview of Section 53(1) of the Criminal Procedure Code.

15. It is true in Narco-analysis Test, nothing is extracted from the body of accused nor anything is compared nor tallied since what is obtained is statement or information given by the accused. Such statement made or information given by an accused will be either exculpatory or inculpatory and it is only inculpatory statement which is hit by Article 20(3) of the Constitution. Whether the accused make inculpatory or exculpatory statement will be known only after the test is conducted and not before that. So, it is premature to say the nature of statement or information, which the accused give under Narco-analysis Test.

16. Now reference can be had to Section 156(1) of the Code of Criminal Procedure. It says that any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Admittedly, the offence punishable under Section 302 of the Indian Penal Code is a cognizable offence. So, said provision comes to the aid of investigating agency for investigation. 'Investigation' as defined in Section 2(h) of the Criminal Procedure Code includes all the proceedings under the Code of Criminal Procedure for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorised by a Magistrate in that behalf. Thus, collection of evidence by Police Officer is permitted under law. Conducting Narco-analysis Test on accused is in the process of collection of such evidence by the investigating agency.

17. What was argued for the accused was that except Sections 53 and 156 of the Criminal Procedure Code, there is no other provision in Criminal Procedure Code under which police can make investigation and seek examination of accused and as Sections 53 and 156 of the Criminal Procedure Code do not provide for such a test (Narco-analysis Test), it could not have been permitted by the learned Magistrate. It was also submitted that police need not have sought permission from the learned Magistrate to conduct Narco-analysis Test as investigation is within its exclusive domain.

18. It is true that permission of Court or Magistrate is not necessary for investigation into a cognizable offence as is clear from Section 156(1) of the Criminal Procedure Code. For conducting Narco-analysis Test, the investigating agency necessarily requires expert Doctors as without that, such test cannot be conducted. Ordinarily, experts or doctors want an order of the Court when they have to assist the investigating agency in the investigation. Section 53 of the Criminal Procedure Code only says that it shall be lawful for a registered medial practitioner to make examination of an accused when requested by Police Officer. That apart, the report on Polygraph test, advises to subject the accused to Narco-analysis Test after obtaining permission from the Court. Under Section 156(3) of the Criminal Procedure Code, a Magistrate empowered under Section 190 of the Criminal Procedure Code may order for an investigation referred to in Section 156(1) of the Criminal Procedure Code. So and when the word investigation includes collection of evidence by the I.O., if an investigating agency had sought permission from the Court without referring provision, it cannot be termed as unwarranted or bad in law. So, I do not find any force in the argument advanced for the accused.

19. At this stage, reference can also be had to Section 161 of the Criminal Procedure Code, with specific reference to Section 27 of the Indian Evidence Act, 1872. In the case of Smt. Nandini Satpathy v. P.L. Dani, : 1978CriLJ968 , a Bench of three Hon'ble Judges of the Supreme Court has held that Section 161 of the Criminal Procedure Code enables the police to examine an accused also during investigation. So, questioning accused during investigation is permissible subject to certain conditions made clear in the said judgment.

20. It cannot be forgotten that Section 39 of the Criminal Procedure Code casts a duty upon every person to furnish information regarding offences. Criminal justice system cannot function without the cooperation of the people. Rather, it is the duty of every person to assist the State in the detection of the crime and bringing criminal to justice. Withholding such information cannot be traced to the right to privacy, which itself is not an absolute right. In this regard, reference can be had to a recent decision of the Supreme Court in the case of State v. Dharmapal, : [2003]3SCR106 and observed by the Supreme Court in the case of State of Gujarat v. Anirudha Singh, : 1997CriLJ3397 , that it is the statutory duty of every witness, who has the knowledge of the commission of the crime, to assist the State in giving evidence.

21. It is true that framers of the Constitution intended to protect an accused person from the hazards of self-incrimination, but in the light of the English law on the subject - they could not have intended to put obstacles in the way of efficient and effective investigation into the crime and bringing criminals to justice. Invariably, accused is/are questioned in every crime as, at times, it helps the investigation of the crime. So, it is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and law Courts with legitimate powers to bring offenders to justice. Further, it must be assumed that the Constitution makers were aware of the existing laws - Sections 2(h), 39, 156, 161 and 162 of the Criminal Procedure Code, Sections 5 and 6 of the Identification of Prisoners Act, 1920, Section 27 of the Indian Evidence Act, 1872, etc. None of the said provisions has been held as ultra vires or unconstitutional. That apart, collection of blood sample, sputum, semen, urine, etc., was held not violative of Article 20(3) of the Constitution. On the other hand, in the case of Kathi Kalu Oghad, supra, they are held permissible.

22. Of course, as noted already, learned Counsel for the accused has tried to distinguish between collection of blood sample, sputum, etc., and subjecting an accused to Narco-analysis Test. But, as noted already, nature of the statement or information, which the accused make is not known.

23. The right guaranteed under Article 20(3) of the Constitution is in the protection of human rights and dignities, which may need consideration in the light of other equally important provisions of the Constitution. It need not be said that prevention of crime and punishment for the crime are the duties of the State. Fetters on these duties can be put only in extreme cases where the protection of fundamental rights weigh more than the fundamental duty casted on the State. Section 53 of the Criminal Procedure Code has been brought on statute book to have efficient and scientific investigation. It is intended to help the investigation of the crime on the scientific lines so as to enable collection of evidence to prove the guilt or innocence of the persons accused of committing the crime as the modern community requires modern scientific methods of crime detection, lest the public go unprotected. Further, in the process of obtaining information, i.e., collection of evidence during investigation, if any legal or fundamental right of the accused is infringed or violated, nothing prevents them from resorting to the safeguards provided to them under various laws. But that cannot be a ground to refuse to answer during investigation.

24. At this juncture, it may not be out of place to note that with considerable feeling about the role of his scopolamine tests, Dr. R.E. House addressed the First Annual Meeting of the Eastern Society of Anesthetists in the year 1925, as under (See: Scopolamine Apomorphia Amnesia in Criminology):

' ... Society has the right to be protected against the criminal, and all of society's rights are manifestly superior to those of the criminal. There can be no gainsaying the fact that a suspect is either innocent or guilty, and no one knows the truth better than does the suspect himself. It, therefore, stands to reason, that where there is a safe and humane measure existing to evoke the truth from the consciousness of the suspect, that society is entitled to have the truth.... I believe in society being mightily fortified with a vast reservoir of direct and collateral information, and at the same time to manifest the spirit of fairness and impartiality, and to always portray justice and mercy.... Were it not for the opportunity to sometimes help in innocent man, I would never enter a penal institution.... If society has the right to take property, liberty, and life for its protection, then society has the right to make, by trained men, the use of truth serum legal. The framers of the Bill of Rights believed the rights of society were paramount to the rights of the criminal. It was an instrument for the protection of the innocent and not intended for the acquittal of the guilty'.

25. A few years later, i.e., in the year 1931, before the validity of the scopolamine test was examined, Herzog A.W. made following comments in his text - 'Medical Jurisprudence Indianapolis':

'As, however, Dr. R.E. House's so-called Truth Serum is thoroughly scientific, perfectly harmless and humane, since by no flight of the imagination can it be considered in any way cruel, there is no reason why it should not be made a legal means of ascertaining whether a person suspected of a crime, or a witness in any proceeding, in his own behalf or in behalf of a plaintiff or defendant, is telling the truth.

It is true that it has been held that a person may be obliged to subject himself to X-ray examination for the purpose of determining whether he has concealed contraband ... and thus it is really only a slight step further to force a person to submit to the hypodermic injection of scopolamine for the purpose of determining whether the person has the truth concealed about him.'

26. Of course, many authors ignore said argument and attack the above proposition. But, it may not be out of context to note that the field of criminology has expanded rapidly during the last few years, and the demand for supplemental methods of detecting deception and improving the efficiency of interrogation have increased concomitantly. Narco analysis for criminal interrogation is a valuable technique, which would profoundly affect both the innocent and the guilty and thereby hasten the cause of justice.

27. Be that as it may, enough protections exist to which recourse can be had by accused if and when the investigating agency seeks to introduce into evidence the information or statement obtained under Narco-analysis Test, if the same is found inculpatory or confession. That apart, statement or information by accused in the said test may even show their innocence or may lead to discovery of a fact or object material in the crime. If so, it is not at all hit by Article 20(3).

28. Of course, the learned Counsel for the accused relied on the decisions of the Supreme Court in the case of M.P. Sharma and Ors. v. Satish Chandra, : 1978(2)ELT287(SC) and Mohammed Dastagir v. State of Madras, : 1960CriLJ1159 besides a decision of this Court in the case of Smt. Ningamma and Anr. v. Chikkaiah and Anr., : AIR2000Kant50 . But, none of the said decisions helps the accused to hold that the investigating agency be prevented to interrogate the accused at the stage of investigation relating to crime in which he is shown as accused. The decisions relied on for the accused relate to the scope and extent of Article 20(3), with which there is no dispute and, as such, they do not help the accused at this stage.

29. It was submitted for the accused that when nothing was found against the accused in their Polygraph and Brain Mapping Tests, it is unnecessary to subject them to undergo Narco-analysis Test. But, according to the prosecution, the request for the test arose in view of the conclusion drawn by the experts after Polygraph test, which is as under:

So, it cannot be said that the investigating agency had sought permission from the Court without any basis or material.

30. It was also contended for the accused that the first accused is suffering from heart problem and as such, subjecting her to undergo Narco-analysis Test will be detrimental to her health. It may be noted that the accused 1 had undergone Brain Mapping and Polygraph Tests, admittedly. Further, as noted already, before subjecting an accused to Narco-analysis Test, his/her medical fitness will be ascertained and thereafter only accused will be subjected to Narco-analysis Test. Reference can also be had to the conclusion found in 'A report on Narco-analysis Test' submitted by the prosecution under the signature of the Director of Forensic Science Laboratories (Police Department), Madiwala, Bangalore, which is as under:

'It should be unambiguously mentioned at this stage that the dosage level required to take a person to the hypnotic stage is found to be 3-4 times smaller than those required for stages beyond. Therefore, this low concentration of the drug used in the Narcosis/Narco analysis will not have any adverse effect on any system of the body.'

So, the argument cannot be upheld though, of course, necessary care-precaution requires to be taken.

31. It be gain said that test permitted by the impugned order assists the investigating agency in getting the truth and find out the real culprit for the commission of the murder of deceased Shivakumar and as such, it may even show innocence of accused. For the aforesaid reasons and discussion made, it is held at this stage that the impugned order does not violate the Article 20(3) of the Constitution.

32. It is a settled law that Section 482 of the Criminal Procedure Code requires to be invoked with the great circumspection and in rarest of rare case when it is necessary either for ends of justice or for preventing abuse of process of Court or to give effect to an order passed under the Code of Criminal Procedure. But, the accused have not made out any such case, nor any illegality or perversity so as to quash the impugned order. No other ground has been urged to consider. So, I do not find any merit in the petition.

33. Since it was argued for the first accused that she has some health (heart) problem, she could have the presence of a Doctor of her choice at the time of subjecting her to Narco-analysis Test, if advised. But, it is made clear that presence of that Doctor is only for observation and not for taking part in any manner in the process (procedure) of conducting Narco-analysis Test, unless requested by the investigating agency and/or expert Doctors involved in conducting that test on her. Of course, if desired, the investigating agency may get videographed the entire process (proceedings) of Narco-analysis test conducted on the accused.

In the result, the petition is rejected. Since the dates fixed for conducting Narco-analysis Test on the accused are over, the learned Magistrate is directed to fix dates afresh for that purpose, when moved or requested by the Investigating Officer.

S.B. Majage, J.

10-9-2004

After pronouncement of the order, the learned Counsel for the accused made oral request to grant 'Certificate of Fitness' for appeal to the Hon'ble Supreme Court on the ground that substantial question of law and Constitution and interpretation there of are involved.

2. I have considered in detail every point urged for the accused and also various decisions of the Supreme Court on the point relied on for them besides some other decisions as well and held no merit in any of the contentions urged and that the impugned order does not violate Article 20(3) of the Constitution.

So, the prayer is rejected.

Subject	Criminal
Court	Karnataka High Court
Decided On	Sep-10-2004
Case Number	Criminal Petition No. 1964 of 2004
Judge	S.B. Majage, J.
Reported in	2004(7)KarLJ501
Acts	Evidence Act, 1872 - Sections 27; Code of Criminal Procedure (CrPC) , 1973 - Sections 2, 39, 53, 53(1), 54, 156, 156(1), 156(3), 161, 162, 190, 438 and 482; Identification of Prisoners Act, 1920 - Sections 5 and 6; Indian Penal Code (IPC), 1860 - Sections 302, 319 and 365; Constitution of India - Article 20 and 20(3)
Appellant	Smt. Selvi and ors.
Respondent	State by Koramangala Police Station
Appellant Advocate	R. Nataraj, Adv.
Respondent Advocate	Chandramouli, State Public Prosecutor

Smt. Selvi and ors. Vs. State by Koramangala Police Station - Court Judgment